                                                                                             F- HL EO
                                                                                   COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF                                               WASSHINGTON
                                                                                 2B1 5 FEB - 3 AM 8: 48
                                                 DIVISION II
                                                                                 STATE OF WASHINGTON
LEON PEOPLES, individually,                                                       DM n, -        7 -II
                                                                                            DEPUTY
                                       Appellant,                              PUBLISHED OPINION


          v.




 PUGET SOUND' S BEST CHICKEN!, INC.
 d /b /a POPEYE' S CHICKEN &                 BISCUITS, a
 Washington           corporation;      and     BENNIE
 MARTIN,           individually,    and `    JANE    DOE"
 MARTIN            and    the      marital    community
 comprised thereof,



                                       Respondents.


          BJORGEN, A.C. J. —       Leon Peoples      sued   Puget Sound'   s   Best Chicken! Inc.,       doing business

as   Popeye'   s   Chicken &    Biscuits, along with Bennie Martin and Martin' s marital community

collectively, Popeye' s), 1 for events occurring during his employment at a Popeye' s restaurant on
Joint Base Lewis -McChord ( JBLM).                  The trial court granted summary judgment in favor of

Popeye' s based on the federal enclave doctrine and dismissed Peoples' s lawsuit without prejudice


after determining that it lacked subject matter jurisdiction.

          On appeal, Peoples argues that the trial court erred by dismissing his lawsuit for lack of

subject matter jurisdiction and by granting summary judgment based on the federal enclave

doctrine, because his causes of action predated Washington' s cession of the land comprising JBLM

to the federal government.




1 Where necessary, we refer to Puget Sound' s Best Chicken! and to Martin and the Martin
marital   community      individually.
No. 45110 -7 -I1



         We partially          reverse      the   order of    summary judgment. The federal enclave doctrine bars


state law causes of action arising from events occurring on a federal enclave if the cause of action

did   not exist   in   state   law   at   the     creation of   the   enclave.   The trial court correctly determined that

Peoples' s statutory discrimination and intentional infliction of emotional distress ( outrage) causes

of action did not exist when Washington ceded the land encompassing JBLM to the federal

government. Summary judgment on these claims was appropriate. However, Peoples' s negligent

hiring or retention cause of action existed in Washington' s common law before cession of the

JBLM land, making summary judgment in favor of Puget Sound' s Best Chicken! inappropriate on

this claim.


          We   also reverse          the order of dismissal           for lack   of subject- matter    jurisdiction.   The trial


court' s decision to dismiss Peoples' s lawsuit assumed that he had no valid state law claims, an


assumption that our partial reversal of the order of summary judgment renders erroneous.

Consequently, we reverse in part and remand the matter for further proceedings.

                                                                   FACTS


          Peoples       alleges      that    during     his   employment         Martin, his      manager,   subjected him to


degrading taunts based on his sexual orientation and that his employer took no action to stop the

harassment despite notice of its occurrence.


          Peoples filed suit against Popeye' s in Pierce County Superior Court, claiming ( 1) violations

of    the Washington Law Against Discrimination ( WLAD),                               chapter   49. 60 RCW, ( 2) outrage, and


 3) negligent hiring or retention.

          Popeye' s moved for summary judgment on its claims under CR 56( c) and dismissal of

Peoples'   s   complaint        based     on      CR 12( b)( 1).      Popeye' s argued that the trial court should grant


summary judgment in its favor because the                          events at   issue   occurred on a   federal   enclave and   the
No. 45110 -7 -II



federal    enclave   doctrine barred Peoples'          s   state   law   causes    of action.   P,opeye' s conceded that


Peoples might have valid federal claims under Title VII of the Civil Rights Act of 1964, 2 but

contended that, until Peoples exhausted his administrative remedies, the trial court lacked subject

matter    jurisdiction     over     these    claims.   Because no evidence suggested that he had done so,


Popeye' s moved the trial court to dismiss Peoples' s lawsuit without prejudice


          The trial court granted Popeyes' s CR 56( c) and CR 12( b)( 1) motions, dismissing Peoples' s

complaint without prejudice. Peoples now appeals.


                                                           ANALYSIS


                                                 I. STANDARD OF REVIEW


          We review de novo an order granting summary judgment, performing the same inquiry as

the trial court.    Lakey    v.   Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P. 3d 860 ( 2013).                We


view the evidence in the light most favorable to the nonmoving party and draw all reasonable

inferences from the evidence in that party' s favor. Lakey, 176 Wn.2d at 922. Summary judgment

is appropriate where the " pleadings, depositions, answers to interrogatories, and admissions on

file,"   along with any affidavits, show that no material issues of fact exist and that the moving party

is entitled to judgment as a matter of law. CR 56( c).


           We review de novo an order dismissing a suit for lack of subject matter jurisdiction. See

Mendoza      v.   Neudorfer       Eng' rs,   Inc., 145 Wn.   App.      146, 149, 185 P. 3d 1204 ( 2008).     A trial court


    only has authorization to hear and determine a cause or proceeding only if it has jurisdiction over

the   parties and    the   subject matter."       Mendoza, 145 Wn.          App.    at   149. Where the trial court lacks


subject matter      jurisdiction, it " may do nothing              other   than   enter an order of   dismissal."   Inland




2
    42 U.S. C. §   2000 et seq.
                                                                   3
No. 45110 -7 -II



Foundry Co. v. Spokane County Air Pollution Control Auth., 98 Wn. App. 121, 123 -24, 989 P. 2d

102 ( 1999).


                                                 II. SUMMARY JUDGMENT


         The parties first dispute the propriety of the trial court' s grant of summary judgment in

favor   of   Popeye'   s.     Peoples contends that the federal enclave doctrine does not bar his claims


because they     existed       in Washington'          s   law before JBLM became               a   federal   enclave.   Popeye' s


contends the doctrine does bar his claims because they did not exist before the creation of the

JBLM enclave. After surveying federal enclave law, we analyze its application to Peoples' s claims

and conclude that, although the doctrine barred his WLAD and outrage claims, it did not bar his


claims for negligent hiring or retention.

A.       Federal Enclave Law and JBLM


         The " federal enclave doctrine operates as a choice of law doctrine that dictates which law

applies to causes of action arising" on land that has become a federal enclave. Allison v. Boeing

Laser Tech. Servs., 689 F. 3d 1234, 1235 ( 10th Cir. 2012).                             The doctrine applies where a state


voluntarily cedes land to the federal government, allowing the United States to exercise exclusive

legislative jurisdiction over the land.3 State v. Lane, 112 Wn.2d 464, 468 -69, 771 P. 2d 1150

 1989); Allison, 689 F. 3d          at   1235;   see   U. S. CONST.,   art.   I, § 8,    cl.   17 ( authorizing Congress " [ t] o


exercise exclusive          legislation ...   over all Places purchased by the consent of the legislature of the

State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock -Yards, and

other needful Buildings. ").




3 The terms of cession dictate the extent of the federal government' s jurisdiction over an enclave.
State v. Lane, 112 Wn.2d 464, 469, 771 P. 2d 1150 ( 1989).


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No. 45110 -7 -II



             Because the State cedes its legislative jurisdiction over the enclave, legislation enacted by

the State      after cession of      the   enclave   land has     no effect on   it   without "' clear and unambiguous '




authorization        from the United States Congress.              Dep' t ofLabor      & Indus.    v.   Dirt & Aggregate, Inc.,


120 Wn.2d 49, 52 -53, 837             P. 2d 1018 ( 1992) ( quoting Hancock v. Train, 426 U.S. 167, 179, 96 S.

Ct. 2006, 48 L. Ed. 2d 555 ( 1976)); Allison, 689 F. 3d at 1244. However, the creation of a federal


enclave       does   not eliminate all vestiges of state            legislative authority:         state laws in place at the


creation of      the   enclave remain         in   effect unless    displaced    or preempted        by   federal law. Dirt &


Aggregate, 120 Wn.2d at 52 n. 1.


             The creation of a federal enclave also prevents the application to the enclave of any state

common         law developed          after   cession.     Causes of action recognized by a court function no

differently than causes         of action created        by the   legislature; both    are "'   the law of th[ e] State existing

by the authority        of th[ e]   State,'" and creation of the enclave makes the federal government, not the


State, the      enclave' s    sovereign       authority.    Allison, 689 F. 3d at 1240 ( quoting Erie R.R. Co. v.

Tompkins, 304 U. S. 64, 79, 58 S. Ct. 817, 82 L. Ed. 1188 ( 1938)).                         Accordingly, unless displaced

by federal authority, a plaintiff may pursue common law causes of action arising from events

occurring on a federal enclave if the state' s common law recognized the cause of action before the

creation of      the   enclave.     Allison, 689 F. 3d. at 1240 -41.      However, a plaintiff may not pursue causes

of action developed by a state' s common law after the creation of the federal enclave, Allison, 689

F. 3d   at   1240 -41,   unless     expressly      authorized     by Congress. Cf. Dirt          & Aggregate, 120 Wn.2d at


53.


             With permission and approval from the state legislature, Pierce County ceded the land

encompassing JBLM to the federal                    government      in 1919. Lane, 112 Wn. 2d             at   469. The terms of


cession vested         the United States with          exclusive     legislative jurisdiction        over      JBLM.   Lane, 112
No. 45110 -7 -II



Wn.2d        at   469 -70.   Consequently,       JBLM became            a   federal   enclave   in 1919. Lane, 112 Wn.2d at


469 -70.


B.           The Application of the Federal Enclave Doctrine to Peoples' s Claims4


             Peoples' s complaint makes no federal claim, and he makes no argument that the United


States has authorized the application of the WLAD or Washington' s common law to the base.


Under the case law just summarized, therefore, the propriety of summary judgment based on the

federal enclave doctrine turns solely on whether Peoples' s causes of action existed before

Washington           ceded   the land     now   comprising JBLM to the federal                  government.   We now turn to


those claims.


             1.    WLAD Claims


             Our legislature enacted the WLAD in 1949 to discourage employment discrimination on


the basis of race, creed, color, or national origin. Griffin v. Eller, 130 Wn.2d 58, 63, 922 P. 2d 788

 1996).           WLAD now bars other types of discrimination, such as discrimination based on sexual

orientation.         LAws    OF   2006,   ch.   4, §§   1 - 18.   Within the WLAD, the legislature provided a civil


cause of action for a violation of its provisions. RCW 49. 60. 030( 2).


             Because the legislature did not enact the WLAD until 1949, it was not effective at the


creation of the JBLM enclave in 1919. In consequence, WLAD never regulated conduct on JBLM




4 Peoples contends that the trial court should have analyzed the application of the federal enclave
doctrine to his claims differently for defendant Martin, Martin' s marital community, and Puget
Sound' s Best Chicken! As noted above, the federal enclave doctrine serves as a choice of law
doctrine applicable where events giving rise to a suit occur on a federal enclave. Allison, 689
F. 3d   at   1235.     The identity of the actors involved in those events is irrelevant to the doctrine. If
applicable, the doctrine bars claims against defendant Martin and his marital community just as it
bars claims against Puget Sound' s Best Chicken!




                                                                    6
No. 45110 -7 -II



or provided a cause of action        for WLAD         violations       occurring there. Dirt & Aggregate, 120 Wn.2d


at 52; Allison, 689 F. 3d at 1239, 1240, 1244. Popeye' s was entitled to judgment as a matter of law

on Peoples' s WLAD claims under the federal enclave doctrine.

        Peoples asks that, if we hold that the federal enclave doctrine bars his WLAD claims, we


remand the matter with orders to allow him to amend his complaint to bring the claims as common

law tort claims for wrongful discharge in violation of public policy. The tort of wrongful discharge

in violation of public policy did not exist in this state until long after the creation of the JBLM

enclave, and Peoples cites no authorization for such claims by the United States Congress.

Thompson      v.   St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P. 2d 1081 ( 1984) ( stating explicitly


that the   court was    recognizing     a new cause of action with              its   opinion).    Accordingly, the federal

enclave doctrine bars claims for wrongful discharge in violation of public policy, just as it bars

WLAD claims.


           2. Outrage

           Although " Pliability for     outrage      is   of   ancient lineage,"     American jurisdictions initially did

not allow for recovery based on outrageous conduct, except if part of an assault or if committed

by   a common carrier.          Contreras   v.   Crown Zellerbach           Corp.,     88 Wn.2d 735, 738 -39, 565 P. 2d


1173 ( 1977).        Reflecting this, the American Law Institute' s original Restatement of Torts,

published     in 1934, "   stated   flatly [ that]    there     was no    liability"   for outrage, subject, to those two


exceptions. Contreras, 88 Wn.2d at 739; Browning v. Slendera Sys., 54 Wn.2d 440, 447, 341 P. 2d

859 ( 1959),   overruled on other grounds by Nord v. Shoreline Say. Ass 'n, 116 Wn.2d 447, 805 P.2d

800 ( 1991) ( quoting RESTATEMENT                OF   TORTS § 46 ( 1934)).            However, because cases imposing

liability for outrage began appearing in the common law after 1934, the institute published in 1948

a supplement       to the Restatement of Torts that               recognized    the tort.   Contreras, 88 Wn.2d at 739;


Browning,      54 Wn.2d    at   447 -48 ( quoting RESTATEMENT              OF   TORTS § 46,       suppl. (   1948)).   Following

                                                                   7
No. 45110 -7 -II



the institute' s lead, Washington explicitly recognized a cause of action for outrage in 1975.

Contreras, 88 Wn.2d at 737 -39 ( citing Grimsby v. Samson, 85 Wn.2d 52, 530 P. 2d 291 ( 1975)).

        Outrage claims appear unknown in American common law before 1934, subject to the two


exceptions in the 1934 Restatement, and unrecognized in Washington before 1975. Outrage claims


therefore did not exist in Washington' s common law at the creation of the JBLM enclave in 1919.


Consequently, a state law cause of action for outrage does not exist for conduct on JBLM, and

Popeye' s was entitled to summary judgment on this claim as well. Allison, 689 F. 3d at 1240 -41.

        Peoples argues that Washington' s common law recognized a claim of outrage prior to


cession of the JBLM land based on our Supreme Court' s decision in Anderson v. Pantages Theater

Co., 114 Wash. 24, 194 P. 813 ( 1921).         That case involved a claim that the theater company had

denied an African- American ticketholder his seat at a performance based on his race. Anderson,


114 Wash.      at   25 -26.   The cause of action in Anderson was created by a statute that proscribed

racial discrimination in places of public accommodation, not by the common law. Anderson, 114

Wash.   at   27 -28.   The theater company' s behavior, and the consequent emotional damage to the

plaintiff, was discussed only as a measure of damages for the violation of the statute, rather than

as the basis for the plaintiff' s cause of action. Anderson, 114 Wash. at 30 -32. Because Anderson


does not show that a cause of action for outrage existed at the time of the creation of the JBLM

enclave, it does not aid Peoples. Allison, 689 F. 3d at 1240.




                                                      8
No. 45110 -7 -I1



         3. Negligent Hiring or Retentions

         Peoples' s pleadings in the trial court, and his briefing before our court, appear to combine

several theories of tort liability into a single tort, that of negligent hiring, retention, supervision,

and training. Liability for negligent hiring or retention arises because the employer failed to

exercise ordinary care by hiring or retaining an employee known to be unfit. Scott v. Blanchet

High Sch., 50 Wn.     App.   37, 43, 747 P. 2d 1124 ( 1987) (      quoting 53 Am. Jur. 2d Master &

Servant, § 422 ( 1970)).     These torts are distinct from negligent supervision or training where an

employer' s liability arises based on the failure to exercise ordinary care in supervising an

employee. Scott, 50 Wn. App. at 44. In arguing that his claim is not barred by the federal

enclave doctrine, Peoples cites only case law concerning negligent hiring or retention.

Consistently with Skagit County Public Hospital Dist. No. 1 v. Department ofRevenue, 158 Wn.

App.   426, 440, 242 P. 3d 909 ( 2010), we confine our analysis to those claims.


         The parties direct our attention to different cases bearing on whether the torts of negligent

hiring   or retention existed    before the     creation of   the JBLM enclave.     Peoples cites Matsuda v.


Hammond, 77 Wash. 120, 137 P. 328 ( 1913),               and argues that it shows negligent hiring or retention

claims existed    before 1919.    Popeye' s, in contrast, claims that no liability for negligent hiring or

retention existed before La Lone v. Smith, 39 Wn.2d 167, 234 P. 2d 893 ( 1951).


         Matsuda involved an assault arising from the sale of a crate of strawberries. Matsuda, 77

Wash. at 121 - 22. The plaintiff sued both the store manager, who punched him, and the manager' s




s A successful negligent retention claim imposes liability on the employer for his or her own
negligence in retaining an unfit employee, not for the employee' s wrongful act. Niece v.
Elmview. Grp. Home, 131 Wn.2d 39, 48, 929 P. 2d 420 ( 1997) ( citing Scott v. Blanchet High Sch.,
50 Wn.    App.   37, 43, 747 P. 2d 1124 ( 1987)).        As defendant Martin could not have negligently
retained himself under these facts, the trial court properly granted him and his marital
community summary judgment           on   the   claim.
No. 45110 -7 -II



employer.     See Matsuda, 77 Wash.          at   122.    After the jury returned a verdict for the plaintiff, the

manager and his employer appealed. Matsuda, 77 Wash. at 122. When discussing the employer' s

liability for the manager' s conduct, the court wrote:

         On behalf     of [the employer],    the additional contention is made that the [ manager],
         when he assaulted and beat the respondent, was not acting within the scope of his
         authority. This contention, we think, is well founded. The authority of [ the
         manager], as shown in the record, was to act as general manager of [the employer' s]
         business. This grant of authority would unquestionably authorize [ the manager] to
         make collections for goods sold from [ the employer' s] place of business, and to
         exact settlements for goods wrongfully taken therefrom; but it would not, without
         something more, render [ the employer] liable for unlawful acts of [the manager]
         committed while making such collections or settlements. An employer is liable for
         the unlawful and criminal acts ofhis employ[ ee] only when he directly authorizes
         them, or ratifies them when committed; or, perhaps, continues an employ[ ee] in his
         employment after he has knowledge that the employ[ ee] has committed, or is liable
         to commit, unlawful acts while in the pursuit ofhis employer 's business.
Matsuda, 77 Wash.          at   123 (   emphasis   added).        The italicized portion of Matsuda appears to


generally apply the rule that certain employers immune from vicarious liability could be liable for

their   own   failure to   exercise     ordinary   care    in selecting   or   retaining   an unfit employee.   E.g.,

Richardson     v.   Carbon Hill Coal Co., 10 Wash. 648, 655 -56, 39 P. 95 ( 1895).


         The Supreme Court has twice cited Matsuda as recognizing liability for negligent hiring or

retention.    First, in Estes    v.   Brewster Cigar Co., 156 Wash. 465, 473 -74, 287 P. 36 ( 1930), the


court wrote that:


          t]here is a line of cases, to which we have lent sanction in [Matsuda], to the effect
         that a master is liable for the unauthorized wrongful acts of his servant, if he
         continues the servant in his employment after he has knowledge that the servant
         has committed, or is liable to commit wrongful acts while in the performance of the
         duties for which he is employed.

 Internal citation omitted.)


Later, in La Lone, the court wrote that


          o] ur   decisions in [ Matsuda], [ Estes],         and Miller v. Mohr, while not directly on
         point, recognize the legal principle that the negligent employment or retention of

                                                             10
No. 45110 -7 -II



            an incompetent employee makes the employer liable for injuries inflicted upon a
            third party by such employee.

La Lone, 39 Wn.2d           at   171 ( internal   citations omitted) ( emphasis added).




            These decisions show that Washington' s common law recognized the torts of negligent


hiring or retention before the state ceded the land comprising JBLM to the federal government.

The language in Matsuda, italicized                        above,   contains    the   elements   of   these torts.   Compare


Matsuda, 77 Wash.           at   123   with   Betty    Y.   v.   Al-Hellou, 98 Wn.      App.   146, 148 -49 & n.3, 988 P. 2d


1031 ( 1999) (     elements of      the torts    of negligent       hiring   and   retention). Further, the Supreme Court


itself stated that Matsuda recognized employer liability for negligent employment or retention in

principle. La Lone, 39 Wn.2d at 171. 6

            Popeye' s contends that Matsuda did not establish the torts of negligent hiring or retention,

but simply        analyzed vicarious          liability. Popeye' s appears to argue that no claim for negligent

hiring or retention existed until a court actually imposed liability on the theories, which happened

in La Lone. We disagree. While Popeye' s correctly notes that the Matsuda court did not hold that

the employer negligently retained the manager, that result appeared to result from the lack of

evidence that the employer knew of the manager' s violent tendencies. See 77 Wash. at 121 -22 ( no

evidence about manager' s predisposition                    to   violence   in the   statement of   facts). As noted, in Estes


the court stated that Matsuda recognized negligent retention claims, 156 Wash. at 473, and in La

Lone the court analyzed the negligent retention claim there based on principles already recognized



6
    Estes   and   Matsuda    were negligent retention cases.                 156 Wash. at 473 -74; 77 Wash. at 123.
Miller discussed negligent hiring or retention. Miller v. Mohr, 198 Wash. 619, 633 -34, 89 P. 2d
807 ( 1939). Miller cited Bise v. St. Luke' s Hospital, 181 Wash. 269, 43 P. 2d 4 ( 1935) in support
of the proposition that an employer may be negligent in hiring or retaining an unfit employee.
Miller, 198 Wash. at 633 -34. For its part, Bise cited a number of cases for support for that same
rule; at least two of these cases discussed negligent hiring and predate cession of the JBLM land.
Bise, 181 Wash.        at   271 ( citing Wells        v.   Ferry -Baker     Lumber Co., 57 Wash. 658, 659 -60, 107 P.
869 ( 1910)); Richardson, 10 Wash. at 655 -56.

                                                                     11
No. 45110 -7 -II



in Matsuda,      rather   than as if it   were   confronting       an   issue   of   first impression. 39 Wn.2d at 171.


Whether or not Matsuda held that the employer in that case was negligent for retaining the

manager, its analysis established the tort of negligent retention in Washington.


         Because Washington' s common law recognized causes of action for negligent hiring or

retention before cession of the JBLM land, Popeye' s was not entitled to summary judgment on the

claim    based   on   the federal enclave     doctrine.   We reverse the order of summary judgment with

regard to Peoples' s negligent hiring and retention claims against Puget Sound' s Best Chicken!

                                      III. SUBJECT MATTER JURISDICTION


          The parties next contest the propriety of the trial court' s dismissal of Peoples' s suit based

on its lack of subject matter jurisdiction. We agree that the trial court erred in concluding that it

lacked jurisdiction over Peoples' s complaint.


          In granting Popeyes' s motion to dismiss for lack of subject matter jurisdiction, the trial

court assumed that Peoples had no valid state law claims. This assumption arose from its grant of


summary judgment on all of Peoples' s claims based on Popeyes' s federal enclave doctrine

argument. Because we reverse the grant of summary judgment with regard to Peoples' s negligent

hiring   or retention claims against        Puget Sound'   s   Best Chicken!, the trial court' s assumption was


erroneous.       Since Peoples had valid state law claims, his failure to exhaust his administrative


remedies for federal claims that he never made was irrelevant. We reverse the order of dismissal

and remand the matter for further proceedings.


                                                    CONCLUSION


          We affirm the grant of summary judgment in favor of Popeye' s as to Peoples' s WLAD and

outrage claims, but reverse the order of summary judgment as it pertains to Peoples' s negligent

hiring   or retention claim against         Puget Sound'       s   Best Chicken!          We also reverse the order of




                                                           12
No. 45110 -7 -II



dismissal because the superior court had subject matter jurisdiction over Peoples' s state law


negligent   hiring   or retention claim against   Puget Sound'   s   Best Chicken!   We remand the matter


for further proceedings consistent with this opinion.




 We concur:




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