Court of Appeals hears argument over whether employer can be liable for off‑duty homicide in Dewey case

The Washington Court of Appeals, Division II, heard argument in Dewey v. State on a motion for discretionary review about whether the Department of Social and Health Services (DSHS) owed a legal duty under negligent‑retention theory for the off‑duty murder of Cassie Dewey by an employee, Joshua Phillips. "Employers do not have a legal duty to prevent intentional criminal acts committed by their employees when those acts occur off duty, off campus, and without instrumentalities provided by the employer," argued counsel for the State, who said the homicide occurred in a private home and did not arise from tasks, premises or instrumentalities entrusted by the employer.

Ian Lightburn, counsel for the estate of Cassie Dewey, replied that discretionary review of a denial of summary judgment is rare and that the State must show "obvious error." Lightburn argued the trial court did not commit obvious error, saying the record supports triable issues about employer notice, an employee's fitness to remain in the workplace, and proximate cause. "We just believe that we're entitled to a jury trial," Lightburn told the court, urging that the issues belong to factfinding, not interlocutory review.

Both sides debated the scope of negligent retention: the State relied on precedents holding that mere workplace contact is insufficient to create a duty, citing cases such as CJC v. The Corporation of the Catholic Bishop and prior appellate decisions; the estate urged that cases like Anderson and other authority permit negligence claims where an employer knew or should have known the employee was unfit and retained him. The estate stressed that "unfit" is not synonymous with licensure status and that an employee may retain a professional license yet still be unfit to work in a particular environment under employer policy.

The presiding judge questioned whether there were facts showing Eastern State Hospital had notice or a pattern of the employee's harmful conduct and whether internal post‑event reviews or licensing actions bear on knowledge at the relevant time. In rebuttal, the State reiterated there was no admissible evidence that Dewey would have acted differently had the employer responded differently and argued proximate cause is not established on the record before the court.

The court took the motion under consideration. The judge confirmed a trial date of September 29 and a pretrial conference later this week, and said she would try to issue a written ruling before trial; counsel were asked to notify the court if the trial date is continued.