Femala Fleming v. Amateur Athletic Union of the United States, Inc. ( 2023 )

2023 WI 40SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1054
COMPLETE TITLE: Femala Fleming,
Plaintiff-Appellant,
v.
Amateur Athletic Union of the United States,
Inc.,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 377, 979 N.W.2d 614PDC No: 2022 WI App 46 - Published
OPINION FILED: May 17, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 23, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Rhonda L. Lanford
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. KAROFSKY, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by John J. Reid and Cassiday Schade LLP, Milwaukee. There
was an oral argument by John J. Reid.
For the plaintiff-appellant, there was a brief filed by
James P. Scoptur, Jeffrey M. Herman, Jason S. Sandler, and Aiken
& Scoptur, Brookfield, and Herman Law, Boca Raton. There was an
oral argument by Jeffrey M. Herman.
An amicus curiae brief was filed by Timothy W. Burns, Jesse
J. Bair, Nathan M. Kuenzi, and Burns Bair LLP, Madison, for
CHILD USA.
2
2023 WI 40NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1054
(L.C. No. 2020CV1789)
STATE OF WISCONSIN : IN SUPREME COURT
Femala Fleming,
Plaintiff-Appellant, FILED
v. MAY 17, 2023
Amateur Athletic Union of the United States, Sheila T. Reiff
Inc., Clerk of Supreme Court
Defendant-Respondent-Petitioner.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. KAROFSKY, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
a published decision of the court of appeals, Fleming v. Amateur
Athletic Union of the United States, Inc., 2022 WI App 46, 404
Wis. 2d 377, 979 N.W.2d 614, reversing the Dane County circuit
court's1 order dismissing Femala Fleming's action against Amateur
1 The Honorable Rhonda L. Lanford presided.
No. 2021AP1054
Athletic Union of the United States, Inc. ("AAU") as untimely
under Wis. Stat. § 893.54 (2021-22).2 We reverse.
¶2 Fleming argues that she timely filed her negligence
claim against AAU because the governing statute of limitations
is Wis. Stat. § 893.587, which requires that "[a]n action to
recover damages for injury caused by an act that would
constitute a violation of" certain ch. 948 sexual assault
offenses against children "shall be commenced before the injured
party reaches the age of 35 years or be barred." According to
Fleming, § 893.587 governs her negligence claim because she
alleged AAU negligently hired, retained, and supervised Shelton
Kingcade, who sexually assaulted Fleming between 1997 and 2000,
making her "injury caused by an act that would constitute a
violation of" an enumerated ch. 948 offense. She also argues
that Wis. Stat. § 893.13 tolls this deadline for "30 days from
the date of final disposition" of Fleming's "action to enforce
[her] cause of action." Because Fleming originally filed her
action against AAU in federal court, turned 35 years old while
that action was pending, and filed this action in the Dane
County circuit court within 30 days after her federal action was
dismissed, Fleming argues that her action was timely filed.
¶3 At issue is not whether Fleming could sue Kingcade.
Our analysis concerns only the claim against AAU. We conclude
that Fleming's negligence claim against AAU was not timely
All references to the Wisconsin Statutes are to the 2021-
2
22 version unless otherwise noted.
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No. 2021AP1054
filed. Wisconsin Stat. § 893.587 does not provide the governing
statute of limitations for Fleming's negligence claim against
AAU because her claim is not "[a]n action to recover damages for
injury caused by an act that would constitute a violation of" an
enumerated ch. 948 offense. Instead, Fleming's "action to
recover damages" is "for" "injury caused by an" entirely
different act——AAU's act of negligently hiring, retaining, and
supervising Kingcade. Because Fleming does not allege that AAU
committed an enumerated injury-causing act, her claim is not
"[a]n action to recover damages" to which § 893.587 applies.
The governing time limit is instead the three-year statute of
limitations under Wis. Stat. § 893.54 as extended by Wis. Stat.
§ 893.16, which the parties agree would bar Fleming's negligence
claim against AAU if applicable. Accordingly, Fleming's claim
is time-barred, and the circuit court was correct to grant AAU's
motion to dismiss. We therefore do not reach the issue of
whether the tolling period under Wis. Stat. § 893.13 applies to
§ 893.587.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 The following facts are taken from Fleming's complaint
as well as federal and state court case records, including
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documents AAU attached as exhibits to its motion to dismiss.3 We
accept these facts as true for purposes of our review. Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356
Wis. 2d 665, 849 N.W.2d 693.
¶5 Between 1997 and 2000, Fleming was a member of the
Madison Spartans Youth Basketball Club, an AAU-affiliated youth
basketball program. AAU is a non-profit "multi-sport
organization dedicated to the promotion and development of
amateur sports and physical fitness programs," and which
"sponsors and sanctions athletic events, including basketball
tournaments in Wisconsin and Minnesota." Fleming's coach was
Shelton Kingcade, an adult male who coached both the Madison
Spartans and Fleming's school basketball team. "Kingcade
applied for and became a member and/or volunteer affiliated
with" AAU, and he maintained this affiliation at all relevant
times. "In order for a coach to participate in AAU tournaments,
he must be a member of the AAU. Furthermore, athletes can only
participate in AAU tournaments with coaches who are AAU
members."
3 AAU argued to the circuit court that the court could
accept the facts in these exhibits as "incorporated into the
pleadings by reference." "The incorporation-by-reference
doctrine 'prevents a plaintiff from "evad[ing]
dismissal . . . simply by failing to attach to his complaint a
document that prove[s] his claim has no merit."'" Soderlund v.
Zibolski, 2016 WI App 6, ¶38, 366 Wis. 2d 579, 874 N.W.2d 561(quoting Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687,
690 (7th Cir. 2012)) (alterations in original). The circuit
court and court of appeals considered the contents of these
exhibits in ruling on AAU's motion, and Fleming does not object
to our doing the same here.
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¶6 Kingcade sexually assaulted Fleming on multiple
occasions during the relevant period, for which he was later
convicted of repeated sexual assault of a child contrary to Wis.
Stat. § 948.025(1) and second-degree sexual assault of a child
contrary to Wis. Stat. § 948.02(2). State v. Kingcade,
No. 2015CF1094 (Dane Cnty. Cir. Ct. June 27, 2016). These
assaults "occurred in Kingcade's home and in hotels rented by
Kingcade," and while Fleming and Kingcade attended tournaments
"sanctioned and organized" by AAU. Fleming was a minor, between
the ages of 13 and 16, during this entire period. She alleges
that Kingcade was previously arrested and convicted of second-
degree sexual assault of a minor in 1990, again arrested but not
convicted of the same offense in 1992, that Kingcade's
supervisor was aware of the conviction, and that "AAU was aware
or should have been aware that Kingcade was convicted of Second-
Degree Sexual Assault of a Minor in 1990."
¶7 On November 1, 2019, Fleming filed a complaint in the
United States District Court for the Western District of
Wisconsin alleging various causes of action against AAU, Dane
County, the Madison Metropolitan School District, and Kingcade's
supervisor Stephen Blue. Doe v. Amateur Athletic Union of the
U.S., Inc., No. 19-cv-901-jdp (W.D. Wis.). Fleming turned 35
years old on November 4, 2019, while that action was still
pending, and the district court dismissed that action on
August 11, 2020, on jurisdictional grounds. Id.¶8 On August 31, 2020, Fleming filed this action against
AAU in the Dane County circuit court alleging AAU was negligent
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No. 2021AP1054
in hiring, retaining, and supervising Kingcade, and "[a]s a
direct and proximate result of [AAU's] negligence" Fleming "was
sexually abuse[d] by Kingcade" and suffered damages. AAU filed
a motion to dismiss based on the three-year statute of
limitations under Wis. Stat. § 893.54(1m)(a) for negligence
claims. Fleming argued this statute of limitations is
inapplicable and that the appropriate statute of limitations is
instead Wis. Stat. § 893.587, which states, "[a]n action to
recover damages for injury caused by an act that would
constitute a violation of [certain enumerated criminal sexual
assault offenses against minors] . . . shall be commenced before
the injured party reaches the age of 35 years or be barred."
Fleming further argued that, though she already reached the age
of 35, Wis. Stat. § 893.13 tolled the limitations period during
the duration of her federal action, making this claim timely.
AAU responded in supplemental briefing that § 893.13 did not
toll the limitations period because "§ 893.587 functions as a
statute of repose, not limitations and as such, it is explicitly
not subject to tolling."
¶9 In a written decision dated April 30, 2021, the
circuit court granted AAU's motion to dismiss. The court
concluded,
Due to the nature of the statutes listed in [Wis.
Stat.] § 893.587, and the legislature choosing to hold
religious organizations accountable until an
individual reaches the age of 35 and not extending
that accountability to other similar groups this Court
finds that [§ ]893.587 was not intended to provide an
extended statute of limitations for the claims
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No. 2021AP1054
Plaintiff sets forth in her Complaint. The Court
finds that Wis. Stat. [§ ]893.54 applies and
Plaintiff's lawsuit is time-barred.
Because the circuit court concluded § 893.54(1m)(a) was the
applicable statute of limitations, the court did not reach the
issue of whether Wis. Stat. § 893.13 applied to toll the
limitations period.
¶10 Fleming appealed, and the court of appeals reversed.
The court of appeals first concluded that Wis. Stat. § 893.587applies to Fleming's negligence claim because the statute's
language "expressly expands the injury-causing act that may
underlie the action for damages to any act that would violate
any of the enumerated statutes" and "defines only the universe
of injury-causing acts, not actors or theories of liability."
Fleming, 404 Wis. 2d 377, ¶20. The court also held that Wis.
Stat. § 893.13 tolled that limitations period because,
"regardless of whether Wis. Stat. § 893.587 is a statute of
repose or a statute of limitation, the distinction asserted by
AAU is irrelevant" as the tolling statute applies to both. Id.,
¶¶44-48. As a result, the court of appeals concluded that
Fleming timely filed her action in state court. Id., ¶49.
¶11 AAU petitioned this court for review on the questions
of whether Wis. Stat. § 893.587 provides the applicable time
limitation for Fleming's negligence action and, if so, whether
Wis. Stat. § 893.13 tolls that limit. We granted review.
II. STANDARD OF REVIEW
¶12 "In this case, we review a motion to dismiss for
failure to state a claim. 'Whether a complaint states a claim
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No. 2021AP1054
upon which relief can be granted is a question of law for our
independent review; however, we benefit from discussions of the
court of appeals and circuit court.'" Saint John's Communities,
Inc. v. City of Milwaukee, 2022 WI 69, ¶13, 404 Wis. 2d 605, 982
N.W.2d 78 (quoting Data Key Partners, 356 Wis. 2d 665, ¶17).
¶13 "The motion to dismiss here is based on whether the
complaint was timely filed under the applicable statute of
limitations . . . ." Doe 56 v. Mayo Clinic Health Sys., 2016 WI
48, ¶14, 369 Wis. 2d 351, 880 N.W.2d 681. "This involves the
interpretation and application of a statute to an undisputed set
of facts, which also presents a question of law we review de
novo. If a complaint is not timely filed, the claim is time-
barred and dismissal will be upheld." Id. (citation omitted).
¶14 "Judicial deference to the policy choices enacted into
law by the legislature requires that statutory interpretation
focus primarily on the language of the statute. We assume that
the legislature's intent is expressed in the statutory
language." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "Thus, we have
repeatedly held that statutory interpretation 'begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry.'" Id., ¶45 (quoting
Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612
N.W.2d 659). "[S]tatutory language is interpreted in the
context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
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No. 2021AP1054
unreasonable results." Id., ¶46. Additionally, "[s]tatutory
language is read where possible to give reasonable effect to
every word, in order to avoid surplusage." Id. "Where
statutory language is unambiguous, there is no need to consult
extrinsic sources of interpretation, such as legislative
history." Id. "However, even where the statutory language
bears a plain meaning, 'we nevertheless may consult extrinsic
sources "to confirm or verify a plain-meaning interpretation."'"
Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶20, 379
Wis. 2d 471, 907 N.W.2d 68 (quoting State v. Grunke, 2008 WI 82,
¶22, 311 Wis. 2d 439, 752 N.W.2d 769).
III. ANALYSIS
¶15 AAU raised three issues in its petition for
review: (1) whether an injured party bringing "claims for
negligent hiring and negligent supervision of the sexual abuser
of a child . . . may file such claims against a non-abuser at
any time before reaching the age of 35 years under Wis. Stat.
§ 893.587"; (2) "[a]re claims for negligent hiring and negligent
supervision of a sexual abuser subject to the three-year
limitations period in Wis. Stat. § 893.54"; and (3) "[i]f Wis.
Stat. § 893.587 applies to Fleming's claims against a non-
abuser, does § 893.587 operate as a statute of repose to which
no tolling provision applies . . . or as a statute of
limitations, such that the tolling provisions in Wis. Stat.
§ 893.13 apply to extend the time within which Fleming may file
her action under § 893.587."
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No. 2021AP1054
¶16 We begin by reviewing Wis. Stat. §§ 893.54(1m)(a) and
893.587, and we explain that Fleming's claim may proceed only if
the governing statute of limitations is § 893.587. We then
interpret § 893.587, and we conclude it does not govern
Fleming's negligence claim against AAU. Instead, the applicable
statute of limitations4 is the three-year period under
§ 893.54(1m)(a) as extended by Wis. Stat. § 893.16, which
renders Fleming's claim time-barred. We therefore do not reach
the issue of whether the tolling period under Wis. Stat.
§ 893.13 applies to § 893.587.
A. The Competing Limitations Periods
¶17 The primary dispute in this case is which of two
statutes of limitations governs Fleming's negligence claim
against AAU: Wis. Stat. §§ 893.587 or 893.54(1m)(a).
¶18 Fleming argues the governing statute of limitations is
Wis. Stat. § 893.587. Under this statute,
An action to recover damages for injury caused by an
act that would constitute a violation of s. 948.02,
948.025, 948.06, 948.085, or 948.095 or would create a
cause of action under s. 895.442 shall be commenced
before the injured party reaches the age of 35 years
or be barred.
§ 893.587. Fleming filed her action in federal court on
November 1, 2019, and she turned 35 years old three days later
on November 4, 2019. The Western District of Wisconsin
4One issue raised in the briefing is whether Wis. Stat.
§ 893.587 is a statute of limitations or a statute of repose.
We do not reach this issue. However, for the sake of
simplicity, we refer to § 893.587 as a statute of limitations.
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No. 2021AP1054
dismissed her federal action on August 11, 2022. Under Wis.
Stat. § 893.13,
(2) A law limiting the time for commencement of
an action is tolled by the commencement of the action
to enforce the cause of action to which the period of
limitation applies. The law limiting the time for
commencement of the action is tolled for the period
from the commencement of the action until the final
disposition of the action.
(3) If a period of limitation is tolled under
sub. (2) by the commencement of an action and the time
remaining after final disposition in which an action
may be commenced is less than 30 days, the period
within which the action may be commenced is extended
to 30 days from the date of final disposition.
According to Fleming, this statute tolls the limitations period
by the length of her federal action plus an additional 30 days.5
Because she filed this action in the circuit court on August 31,
2020, only 20 days after her federal action was dismissed,
Fleming concludes her action is timely.
¶19 AAU argues the governing statute of limitations is not
Wis. Stat. § 893.587 but is instead Wis. Stat. § 893.54(1m)(a).
Under § 893.54(1m)(a), "[a]n action to recover damages for
injuries to the person" "shall be commenced within 3 years or be
barred." "The three year period begins on the same date that
the cause of action accrued against [AAU]." Pritzlaff v.
Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780(1995). For "a person entitled to bring an action [who] is, at
5Fleming argues in the alternative that 28 U.S.C. § 1367(d)
applies and accomplishes the same result. We likewise do not
reach this argument.
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No. 2021AP1054
the time the cause of action accrues, . . . under the age of 18
years," Wis. Stat. § 893.16 extends this limitations period to
the age of 20.6
6 Wisconsin Stat. § 893.16 provides in full:
(1) If a person entitled to bring an action is,
at the time the cause of action accrues, either under
the age of 18 years, except for actions against health
care providers; or mentally ill, the action may be
commenced within 2 years after the disability ceases,
except that where the disability is due to mental
illness, the period of limitation prescribed in this
chapter may not be extended for more than 5 years.
(2) Subsection (1) does not shorten a period of
limitation otherwise prescribed.
(3) A disability does not exist, for the
purposes of this section, unless it existed when the
cause of action accrues.
(4) When 2 or more disabilities coexist at the
time the cause of action accrues, the 2-year period
specified in sub. (1) does not begin until they all
are removed.
(5) This section applies only to statutes in
this chapter limiting the time for commencement of an
action or assertion of a defense or counterclaim
except it does not apply to:
(a) Actions for the recovery of a penalty or
forfeiture or against a sheriff or other officer for
escape;
(b) Extend the time limited by s. 893.33,
893.41, 893.59, 893.62, 893.73 to 893.76, 893.77(3),
893.86 or 893.91 or subch. VIII for commencement of an
action or assertion of a defense or counterclaim; or
(c) A cause of action which accrues prior to
July 1, 1980.
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No. 2021AP1054
¶20 Both AAU and Fleming agree that if Wis. Stat.
§ 893.587 does not provide the governing statute of limitations
for Fleming's claim, then the governing statute of limitations
is instead Wis. Stat. § 893.54(1m)(a) as extended by Wis. Stat.
§ 893.16. They also agree that, even with this extension,
Fleming's claim would be time-barred if § 893.54(1m)(a) is the
governing statute of limitations. Accordingly, Fleming's claim
may proceed only if § 893.587 governs her claim and Wis. Stat.
§ 893.13 tolls the limitations period.
B. Wisconsin Stat. § 893.587
¶21 As always, we begin with the text of the statute. To
repeat, Wis. Stat. § 893.587, titled "Sexual assault of a child;
limitation," reads as follows:
An action to recover damages for injury caused by an
act that would constitute a violation of s. 948.02,
948.025, 948.06, 948.085, or 948.095 or would create a
cause of action under s. 895.442 shall be commenced
before the injured party reaches the age of 35 years
or be barred.
The statute applies to two types of actions. The first is "[a]n
action to recover damages for injury caused by an act that would
constitute a violation of" certain enumerated statutes. Id.Each of these enumerated statutes is a criminal offense relating
to sexual assault of children.7 The second type of action is
7 The enumerated offenses include sexual assault of a child
(Wis. Stat. § 948.02), engaging in repeated acts of sexual
assault of the same child (Wis. Stat. § 948.025), incest with a
child (Wis. Stat. § 948.06), sexual assault of a child placed in
substitute care (Wis. Stat. § 948.085), and sexual assault of a
child by a school staff person or a person who works or
volunteers with children (Wis. Stat. § 948.095).
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"[a]n action to recover damages for injury caused by an act
that . . . would create a cause of action under s. 895.442."
Id. Wisconsin Stat. § 895.442 provides a cause of action for
"[a]ny person who suffers an injury as a result of sexual
contact with a member of the clergy that occurs while the person
is under the age of 18." § 895.442(2)(a). It also provides a
cause of action against a religious organization:
Any person who may bring an action under par. (a) may
bring an action against the religious organization
that employed the member of the clergy for all damages
caused by that sexual contact if, at the time that the
sexual contact occurred, another employee of that
religious organization whose duties included
supervising that member of the clergy knew or should
have known that the member of the clergy previously
had sexual contact with a person under the age of 18
and failed to do all of the following:
1. Report that sexual contact under s. 48.981(3).
2. Exercise ordinary care to prevent similar
incidents from occurring.
§ 895.442(2)(b).
¶22 Fleming argues that Wis. Stat. § 893.587 applies
because her action against AAU for negligence is "[a]n action to
recover damages for injury caused by an act that would
constitute a violation of" an enumerated ch. 948 offense. All
agree the alleged negligent acts of AAU——negligently hiring,
retaining, and supervising Kingcade——do not "constitute a
violation of" an enumerated ch. 948 offense or "create a cause
of action under s. 895.442." However, according to Fleming,
§ 893.587 nonetheless applies because her injury was ultimately
caused by Kingcade sexually assaulting her, making her injury
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No. 2021AP1054
"caused by an [enumerated] act." In other words, Fleming
furthers the court of appeals' argument that § 893.587's "first
clause does not impose any restriction based on whom the action
is against or the theory of liability."
¶23 We disagree. Wisconsin Stat. § 893.587 does not apply
to Fleming's negligence claim against AAU because her claim is
not "[a]n action to recover damages for injury caused by an act
that would constitute a violation of" an enumerated ch. 948
offense. Rather, Fleming's claim is an entirely different kind
of "action to recover damages" because it is "for" injury caused
by AAU's negligence, not "injury caused by an [enumerated] act."
¶24 Wisconsin Stat. § 893.587 defines the particular
"action to recover damages" to which the extended limitations
period applies. The statute defines the "action to recover
damages" using two criteria: the presence of an injury, and the
type of injury-causing act. First, there must be "an injury."
Second, the injury-causing act must be one of the enumerated
acts. A qualifying "action to recover damages" must therefore
allege both an injury and an enumerated injury-causing act.
¶25 Additionally, and most important to this case, it is
not enough that the "action to recover damages" is "for injury"
and that this injury be "caused by an [enumerated] act." This
reading isolates portions of the statute, failing to give the
whole statute its "common, ordinary, and accepted meaning."
Kalal, 271 Wis. 2d 633, ¶45. Rather, the "action to recover
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No. 2021AP1054
damages" must be "for"8 the particular "injury caused by an
[enumerated] act." Section 893.587 defines a qualifying "action
to recover damages." If the alleged injury-causing "act" is not
one of the enumerated acts, then this changes the nature of the
"action to recover damages." It is no longer "[a]n action to
recover damages" "for" "injury caused by an [enumerated] act";
it is instead "[a]n action to recover damages" "for" "injury
caused by" an entirely different act. When the injury-causing
"act" changes, so too does the nature of the "action to recover
damages."
¶26 In other words, the question is not whether the injury
was "caused by an act that would constitute a violation of" an
enumerated ch. 948 offense. That interpretation reads out the
first part of the clause and disregards the fact that Wis. Stat.
§ 893.587 defines a qualifying "action to recover damages."
Rather, the question is whether the plaintiff's action is "[a]n
action to recover damages for" the injury as caused by an
enumerated act. If the alleged injury was caused by an
enumerated act, but the "action to recover damages" is not "for"
injury as caused by that same act, then it is a different kind
of "action to recover damages," and § 893.587 does not apply.
As a result, for § 893.587's extended limitations period to
apply, at the motion to dismiss stage, a plaintiff must have
See For, The American Heritage Dictionary of the English
8
Language 709 (3d ed. 1992) ("[u]sed to indicated the object,
aim, or purpose of an action or activity"; "[u]sed to indicate
equivalence or equality").
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No. 2021AP1054
alleged in the complaint that the defendant caused the
plaintiff's injury by committing an enumerated act.
¶27 A review of Wis. Stat. § 893.587's statutory history
supports this plain meaning. "A review of statutory history is
part of a plain meaning analysis. Statutory history encompasses
the previously enacted and repealed provisions of a statute."
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309
Wis. 2d 541, 749 N.W.2d 581 (citation omitted).
¶28 Wisconsin Stat. § 893.587's original form contained
the same operative language we interpret here, but the only
enumerated act was incest:
An action to recover damages for injury caused by
incest shall be commenced within 2 years after the
plaintiff discovers the fact and the probable cause,
or with the exercise of reasonable diligence should
have discovered the fact and the probable cause, of
the injury, whichever occurs first.
Wis. Stat. § 893.587 (1987-88) (emphasis added). The crime of
incest could only be committed by "persons related by blood or
adoption." Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312,
351, 565 N.W.2d 94 (1997) (citing Wis. Stat. § 948.06 (1993-
94)). In cases of incest, the perpetrator's access to the child
is due to a familial relationship, not the perpetrator's
affiliation with any third person or organization.
¶29 The legislature amended this statute in 2001 to expand
the list of enumerated acts. Whereas the previous version
applied to "[a]n action to recover damages for injury caused by
incest," the amended version applied to "[a]n action to recover
damages for injury caused by an act that would constitute a
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No. 2021AP1054
violation of s. 948.02, 948.025, 948.06, or 948.095." 2001 Wis.
Act 16, § 3862x. Importantly, this amendment only expanded the
list of enumerated acts beyond incest. The legislature's intent
as evident from the text was to eliminate the requirement that
the perpetrator have a familial or adoptive relationship with
the child. It retained the same operative language——"[a]n
action to recover damages for injury caused by"——and did not
extend the limitations period in any way other than by expanding
this list of enumerated acts.
¶30 The legislature amended Wis. Stat. § 893.587 in 2003
again to expand the list of enumerated acts. It added to this
list "an act that . . . would create a cause of action under
s. 895.[442]."9 2003 Wis. Act 279, § 6. Wisconsin Stat.
§ 895.442 provides a cause of action for "[a]ny person who
suffers an injury as a result of sexual contact with a member of
the clergy that occurs while the person is under the age of 18"
"against the member of the clergy" and "against the religious
organization that employed the member of the clergy."
§ 895.442(2)(a) and (b). This amendment continued the
legislature's pattern of defining the specific conduct that
exposed a person to claims under § 893.587's extended
limitations period.
¶31 Under Fleming's interpretation, several parts of Wis.
Stat. § 893.587 would be meaningless. "Where possible,
9The amendment cited Wis. Stat. § 895.71, which has since
been renumbered to Wis. Stat. § 895.442.
18
No. 2021AP1054
statutory provisions dealing with the same subject matter should
be interpreted 'in a manner that harmonizes them in order to
give each full force and effect.' Further, '[a] construction of
a statute rendering a portion of it meaningless must be
avoided.'" Belding v. Demoulin, 2014 WI 8, ¶33, 352
Wis. 2d 359, 843 N.W.2d 373 (first quoting Madison Metro. Sch.
Dist. v. Cir. Ct. for Dane Cnty., 2011 WI 72, ¶101, 336
Wis. 2d 95, 800 N.W.2d 442; and then quoting State v. Kruse, 101
Wis. 2d 387, 395, 305 N.W.2d 85 (1981)). If § 893.587's first
clause applied to claims against persons or organizations that
did not themselves commit an enumerated "act," there would be no
need for the statute to reference claims against religious
organizations under § 895.442.10 The same is true for another
Fleming argues our interpretation cannot be correct
10
because it "would create a constitutional problem by
discriminating against religious organizations." However, "the
purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and
intended effect." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. It is
true that "[a] court should avoid interpreting a statute in such
a way that would render it unconstitutional." Am. Fam. Mut.
Ins. Co. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d 872 (1998).
But the constitutional-doubt canon does not trump a plain
meaning. "[T]he canon rests instead upon a judicial policy of
not interpreting ambiguous statutes to flirt with
constitutionality, thereby minimizing judicial conflicts with
the legislature." Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 249 (2012). The canon
thus "has no application in the absence of statutory ambiguity."
United States v. Palomar-Santiago, 593 U.S. ___, 141
S. Ct. 1615, 1622 (2021) (quoting United States v. Oakland
Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001)). Therefore,
"[w]e will not rewrite a law to conform it to constitutional
requirements." United States v. Stevens, 559 U.S. 460, 481
(2010). We likewise will not decide whether any portion of Wis.
19
No. 2021AP1054
statute enumerated as a qualifying "act"——Wis. Stat. § 948.06,
the incest statute. That statute defines the crime of incest,
but it also imposes criminal liability on a person responsible
for a child's welfare whose inaction exposes the child to the
risk of incest:
(2) Is a person responsible for the child's
welfare and:
(a) Has knowledge that another person who is
related to the child by blood or adoption in a degree
of kinship closer than 2nd cousin or who is a child's
stepparent has had or intends to have sexual
intercourse or sexual contact with the child;
(b) Is physically and emotionally capable of
taking action that will prevent the intercourse or
contact from occurring or being repeated;
(c) Fails to take that action; and
(d) The failure to act exposes the child to an
unreasonable risk that intercourse or contact may
occur between the child and the other person or
facilitates the intercourse or contact that does occur
between the child and the other person.
§ 948.06(2). The extended limitations period under § 893.587
therefore applies to claims against persons who did not commit
incest but did commit an offense in violation of § 948.06(2).
If all that mattered was the injury-causing act, § 893.587 would
not need to reference this offense. These examples demonstrate
that the statutes enumerated as qualifying acts under § 893.587
specifically identify when the extended limitations period
Stat. § 893.587 is unconstitutional as a consequence of our
interpretation, as that is a question for another day, and we
must not prejudge the issue.
20
No. 2021AP1054
applies against persons or organizations that did not directly
commit an act of sexual abuse. Where the limitations period has
broader application, the enumerated statutes say so. Fleming's
interpretation would render reference to these provisions
meaningless.
¶32 Indeed, our prior application of Wis. Stat. § 893.587is consistent with this plain meaning. In Doe 1 v. Archdiocese
of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, we
determined the proper limitations periods for claims brought by
three plaintiffs who alleged, "when they were children, a now-
deceased Roman Catholic priest . . . abused them sexually after
he had been criminally convicted of sexually molesting another
child and the Archdiocese knew of his conviction." Id., ¶3.
The plaintiffs brought claims of negligent supervision and fraud
against the Archdiocese. Id., ¶5. Though the plaintiffs'
injuries were all ultimately caused by acts of sexual abuse, we
concluded that the limitations period in Wis. Stat. § 893.587did not apply to their fraud claims against the Archdiocese11:
The statutes listed in Wis. Stat. 893.587 refer
to acts of sexual assault, incest, or sexual
exploitation. The act that the complaints allege
caused injury is the Archdiocese's fraudulent
misrepresentation, i.e., the representation that the
11We did not address Wis. Stat. § 893.587 with regard to
the negligent supervision claims because "those claims accrued
at the time of abuse in the mid–1970s or 1982 and were barred by
the statute of limitations then in effect. Wisconsin Stat.
§ 893.587 was not created until 2003 and did not take effect
until May 2004." Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95,
¶59 n.18, 303 Wis. 2d 34, 734 N.W.2d 827 (citing 2003 Wis. Act
279, § 6).
21
No. 2021AP1054
Archdiocese did not know the priests had histories of
sexually abusing children and did not know the priests
were dangerous to children. None of the statutes
listed in § 893.587 refers to fraudulent
misrepresentations. Therefore, the statute does not
apply to these claims of fraud.
Id., ¶60. It is therefore consistent for us to hold that
§ 893.587 only applies to claims against persons or
organizations that directly committed an enumerated act.
¶33 Consulting extrinsic sources further confirms this
plain meaning. Even though Wis. Stat. § 893.587 is unambiguous,
we may nonetheless consult extrinsic sources, such as
legislative history, but only "to confirm the plain meaning."
Anderson v. Aul, 2015 WI 19, ¶112, 361 Wis. 2d 63, 862
N.W.2d 304 (Ziegler, J., concurring).
¶34 The legislature originally enacted Wis. Stat.
§ 893.587 to provide an extended limitations period for actions
against abusers, codifying the court of appeals' decision in
Hammer v. Hammer, 142 Wis. 2d 257, 418 N.W.2d 23 (Ct. App.
1987). Hammer involved a suit against the plaintiff's "father
for incestuous abuse, intentional infliction of emotional
distress, and negligent infliction of emotional distress." Id.
at 259. The issue was "whether the discovery rule . . . applies
to cases of incestuous abuse." Id. We held, "as a matter of
law, that a cause of action for incestuous abuse will not accrue
until the victim discovers, or in the exercise of reasonable
diligence should have discovered, the fact and cause of the
22
No. 2021AP1054
injury."12 Id. at 264. "The legislature later codified the
Hammer decision by enacting Wis. Stat. § 893.587 as the statute
of limitations for claims of incest." Doe, 211 Wis. 2d at 336;
accord 1987 Wis. Act 332, § 22m. The fact that the legislature
enacted § 893.587 in response to Hammer, where the only claim
was against the individual who committed the incest, supports
our interpretation of § 893.587.
¶35 The legislature has also considered, but repeatedly
rejected, an amendment that would achieve Fleming's proposed
interpretation. The first instance of this was in 2007, where
the legislature rejected an amendment that would have extended
Wis. Stat. § 893.587 to claims "against any person"13:
An action to recover damages against any person for
injury caused by an act that would constitute a
violation of s. 948.02, 948.025, 948.06, 948.085, or
948.095 an adult's sexual contact with anyone under
the age of 18 or by an act committed by an adult that
would create a cause of action under s. 895.442 shall
may be commenced before the injured party reaches the
age of 35 years or be barred at any time.
2007 S.B. 356; 2007 A.B. 651. In fact, the legislature
considered the very same amendment numerous times in the
following years. See 2009 S.B. 319; 2009 A.B. 839; 2009 A.B.
The discovery rule no longer applies, as Wis. Stat.
12
§ 893.587 was later amended to remove language that incorporated
the rule: "within 5 years after the plaintiff discovers the
fact and the probable cause, or with the exercise of reasonable
diligence should have discovered the fact and the probable
cause, of the injury, whichever occurs first." 2003 Wis. Act
279, § 6.
Underlines
13 indicate proposed additions, and
strikethroughs indicate proposed deletions.
23
No. 2021AP1054
453; 2011 S.B. 345; 2011 A.B. 461; 2013 S.B. 225; 2013 A.B. 265;
2015 S.B. 262; 2015 A.B. 348; 2019 S.B. 381; 2019 A.B. 424. It
rejected the amendment each time, indicating that § 893.587 does
not apply to claims "against any person."
¶36 We therefore conclude the limitations period in Wis.
Stat. § 893.587 applies only to claims alleging that the
defendant caused the plaintiff's injury by committing an
enumerated act. The question is not whether the injury was
"caused by an act that would constitute a violation of" an
enumerated ch. 948 offense. Rather, the question is whether the
plaintiff's action is "[a]n action to recover damages for" the
injury as caused by an enumerated act. If the alleged injury
was caused by an enumerated act, but the "action to recover
damages" is not "for" the injury as caused by that same act,
then the "action to recover damages" is not "for" "injury caused
by an [enumerated] act," and § 893.587 does not apply.
C. Fleming's Claim Against AAU
¶37 We conclude that Fleming's claim against AAU does not
qualify as "[a]n action to recover damages for injury caused by
an [enumerated] act" under Wis. Stat. § 893.587. The governing
statute of limitations is instead the three-year period under
Wis. Stat. § 893.54(1m)(a). Accordingly, Fleming's claim is
time-barred.
¶38 Fleming's claim against AAU is "for negligence in its
hiring, retention and supervision of Kingcade as a coach-
24
No. 2021AP1054
member."14 In her complaint, Fleming alleged, "As a direct and
proximate result of Defendant AAU's negligence, [Fleming] has
suffered severe psychological, emotional and physical injuries,
and emotional distress."
¶39 We first recognized a cause of action for negligent
supervision in Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250,
580 N.W.2d 233 (1998), which involved a claim by a shopper
alleging "Wal-Mart employees unlawfully stopped, detained,
searched, and interrogated him." Id. at 258. Relevant to this
case, we explained the causation element for such claims as
requiring two wrongful acts——one by the employer, and one by the
employee:
With respect to a cause of action for negligent
hiring, training or supervision, we determine that the
causal question is whether the failure of the employer
to exercise due care was a cause-in-fact of the
wrongful act of the employee that in turn caused the
plaintiff's injury. In other words, there must be a
nexus between the negligent hiring, training, or
supervision and the act of the employee. This
requires two questions with respect to causation. The
first is whether the wrongful act of the employee was
a cause-in-fact of the plaintiff's injury. The second
question is whether the negligence of the employer was
a cause-in-fact of the wrongful act of the
employee. . . . The act of the employee, whether
intentional or unintentional, must be causal to the
injury sustained. But equally important, the
negligence of the employer must be connected to the
act of the employee.
We refer to
14 such claims in shorthand as "negligent
supervision" claims.
25
No. 2021AP1054
Id. at 262. Fleming argues this is significant because it means
a negligent supervision claim "inherently includ[es] the
intentional tort committed by the perpetrator."
¶40 We do not place the same significance on the fact that
negligent supervision claims require two causal acts. Fleming's
claim is not "[a]n action to recover damages" to which Wis.
Stat. § 893.587 applies. "While negligent supervision does
require an underlying wrong to be committed by the employee as
an element, the tort actually focuses on the tortious, i.e.
negligent, conduct of the employer." Doyle v. Engelke, 219
Wis. 2d 277, 291 n.6, 580 N.W.2d 245 (1998), overruled on other
grounds by Talley v. Mustafa, 2018 WI 47, 381 Wis. 2d 393, 911
N.W.2d 55. To argue that an employer's act of negligent
supervision "inherently includ[es]" an employee's intentional
tort conflates the two separate acts, and it morphs liability
for negligence into vicarious liability.15 See Lewis v.
Physicians Ins. Co. of Wis., 2001 WI 60, ¶11, 243 Wis. 2d 648,
627 N.W.2d 484 (quoting Vicarious Liability, Black's Law
Dictionary 927 (7th ed. 1999)) ("[T]he law in certain
circumstances will impose 'vicarious liability' on a non-
negligent party. Vicarious liability is '[l]iability that a
supervisory party (such as an employer) bears for the actionable
conduct of a subordinate or associate (such as an employee)
We leave for another day, however, the issue of whether
15
Wis. Stat. § 893.587 applies to claims that a defendant is
vicariously liable for injury caused by the enumerated act of
another.
26
No. 2021AP1054
because of the relationship between the two parties.'").
Fleming's claim against AAU is "for injury caused by" AAU's
negligence, not Kingcade's intentional tort.16 For this reason,
§ 893.587 does not apply.
¶41 Though Fleming did suffer an injury, and that injury
was in part caused by an act enumerated under Wis. Stat.
§ 893.587, her claim against AAU is not based on that act. For
§ 893.587 to apply, Fleming's claim would have to be "for"
injury as caused by an enumerated act——Kingcade's act of sexual
assault. However, her claim is for injury as caused by an
entirely separate act——AAU's negligence, an act that all agree
is not enumerated in § 893.587 and would not constitute an
enumerated offense. This changes the nature of Fleming's
"action to recover damages" such that it is not "for" "injury
caused by an [enumerated] act," and § 893.587 therefore does not
apply.17
¶42 Both AAU and Fleming agree that if Wis. Stat.
§ 893.587 does not provide the governing statute of limitations
We emphasize that this distinction is based on the
16
alleged act, not the theory of liability applied to that act.
We have previously held that a negligent supervision
17
claim is a "derivative cause[] of action" which "accrue[s] at
the same time that the underlying intentional tort claims
accrue[]." Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312,
366, 565 N.W.2d 94 (1997). However, this conclusion is based on
application of the discovery rule to determine when a
limitations period commences for a derivative claim. See
Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 311-15,
533 N.W.2d 780 (1995). That rationale does not inform our
decision here because the discovery rule does not apply under
the current version of Wis. Stat. § 893.587.
27
No. 2021AP1054
for Fleming's claim, then the governing statute of limitations
is instead Wis. Stat. § 893.54(1m)(a) as extended by Wis. Stat.
§ 893.16. They also agree that, even with this extension,
Fleming's claim would be time-barred if § 893.54(1m)(a) is the
governing statute of limitations. Therefore, because § 893.587
does not provide the governing statute of limitations, Fleming's
claim against AAU is time-barred, and the circuit court was
correct to grant AAU's motion to dismiss.
IV. CONCLUSION
¶43 Fleming argues that she timely filed her negligence
claim against AAU because the governing statute of limitations
is Wis. Stat. § 893.587, which requires that "[a]n action to
recover damages for injury caused by an act that would
constitute a violation of" certain ch. 948 sexual assault
offenses against children "shall be commenced before the injured
party reaches the age of 35 years or be barred." According to
Fleming, § 893.587 governs her negligence claim because she
alleged AAU negligently hired, retained, and supervised
Kingcade, who sexually assaulted Fleming between 1997 and 2000,
making her "injury caused by an act that would constitute a
violation of" an enumerated ch. 948 offense. She also argues
that Wis. Stat. § 893.13 tolls this deadline for "30 days from
the date of final disposition" of Fleming's "action to enforce
[her] cause of action." Because Fleming originally filed her
action against AAU in federal court, turned 35 years old while
that action was pending, and filed this action in the Dane
28
No. 2021AP1054
County circuit court within 30 days after her federal action was
dismissed, Fleming argues that her action was timely filed.
¶44 At issue is not whether Fleming could sue Kingcade.
Our analysis concerns only the claim against AAU. We conclude
that Fleming's negligence claim against AAU was not timely
filed. Wisconsin Stat. § 893.587 does not provide the governing
statute of limitations for Fleming's negligence claim against
AAU because her claim is not "[a]n action to recover damages for
injury caused by an act that would constitute a violation of" an
enumerated ch. 948 offense. Instead, Fleming's "action to
recover damages" is "for" "injury caused by an" entirely
different act——AAU's act of negligently hiring, retaining, and
supervising Kingcade. Because Fleming does not allege that AAU
committed an enumerated injury-causing act, her claim is not
"[a]n action to recover damages" to which § 893.587 applies.
The governing time limit is instead the three-year statute of
limitations under Wis. Stat. § 893.54 as extended by Wis. Stat.
§ 893.16, which the parties agree would bar Fleming's negligence
claim against AAU if applicable. Accordingly, Fleming's claim
is time-barred, and the circuit court was correct to grant AAU's
motion to dismiss. We therefore do not reach the issue of
whether the tolling period under Wis. Stat. § 893.13 applies to
§ 893.587.
By the Court.—The decision of the court of appeals is
reversed.
29
No. 2021AP1054.jjk
¶45 JILL J. KAROFSKY, J. (dissenting). This case
demands that we answer a straightforward question: Under Wis.
Stat. § 893.587, is Femala Fleming's1 action against the Amateur
Athletic Union (AAU) an "action to recover damages for injury
caused by an act that would constitute a violation of" an
enumerated child sexual assault statute? I would answer this
question with a resounding "yes." Fleming's action requires her
to prove that the following two acts caused her injury: (1) the
AAU negligently hired and supervised Kingcade; and (2) Kingcade
sexually assaulted her when she was a child. Therefore,
Fleming's action is "an action to recover damages for injury
caused by an act that" undisputedly constitutes a violation of
§§ 948.025(1) & 948.02(2).2 The majority atextually reads Wis.
Stat. § 893.587 to require that "the defendant cause[] the
plaintiff's injury by committing an enumerated act"3 and thus
improperly excludes actions to recover damages for injury caused
by more than one act. Therefore, I respectfully dissent.
¶46 Having decided that Wis. Stat. § 893.587 operates to
allow Fleming to file her action against the AAU until she turns
35, I would also hold that such limitation is tolled under Wis.
Stat. § 893.13. This section applies in general terms to any
1 This court generally refers to victims using pseudonyms.
However, on appeal Fleming referred to herself by name. We
therefore follow her lead and refer to her by name.
2 Fleming's coach, Shelton Kingcade, has already been
convicted of repeated sexual assault of the same child under
Wis. Stat. § 948.025(1) and second degree sexual assault of a
child under § 948.02(2) for the conduct alleged in this action.
3 See Majority op., ¶26 (emphasis added).
1
No. 2021AP1054.jjk
"law limiting the time for commencement of an action," and thus
applies in this case whether § 893.587 is considered a statute
of limitations or a statute of repose. Wis. Stat.
§ 893.13(2). As such, Fleming's filing was timely and should
not be dismissed on those grounds. I would affirm the court of
appeals decision and remand the cause for further proceedings.
I. BACKGROUND
¶47 The majority provides an accurate description of the
facts of this case which I briefly reiterate here. Fleming
brought an action against the AAU alleging that a supervising
member of the AAU was aware that Kingcade had been convicted of
second-degree sexual assault of a minor in 1990 and was
arrested, but not convicted, for the same offense in 1992.
Despite knowledge of the these convictions, the AAU——an
organization that promotes and organizes youth and adult
athletic events——granted Kingcade membership and allowed him to
coach Fleming's youth basketball team between 1997 and 2000
without adequate supervision. During the time Kingcade was a
member and coach with the AAU, he assaulted Fleming on multiple
occasions. Fleming was between 13 and 16 years old at the time
of the assaults.
¶48 Fleming filed a complaint in the United States
District Court for the Western District of Wisconsin when she
was 34 years old, and she turned 35 while the action was
pending. That federal action was then dismissed on
jurisdictional grounds, and Fleming filed this action in the
2
No. 2021AP1054.jjk
Dane County Circuit Court within 30 days of the federal action's
dismissal.
II. ANALYSIS
¶49 We must determine whether Fleming's claim was timely
filed. The facts regarding when Fleming filed her claim are
undisputed. The parties dispute: (1) whether Wis. Stat.
§ 893.587 extends the time period in which Fleming may bring her
claims against the AAU until she is 35 years old; and if so, (2)
whether Wis. Stat. § 893.13 tolls said limitation for 30 days
from the time her federal action was dismissed. Both are
matters of statutory interpretation which we decide
independently. Duncan v. Asset Recovery Specialists, Inc., 2022
WI 1, ¶9, 400 Wis. 2d 1, 968 N.W.2d 661. I begin by addressing
Wis. Stat. § 893.587 and then will turn to the tolling statute,
Wis. Stat. § 893.13.
A. Wisconsin Stat. § 893.587
¶50 Wisconsin Stat. § 893.587 reads in full:
An action to recover damages for injury caused by an
act that would constitute a violation of s. 948.02,
948.025, 948.06, 948.085, or 948.095 or would create a
cause of action under s. 895.442 shall be commenced
before the injured party reaches the age of 35 years
or be barred.
The language of this statute is not, on its face, difficult to
understand. The phrase "caused by an act that would constitute
a violation of [an enumerated statute]" modifies the word
"injury." The relevant action brought by the injured party must
therefore be to recover damages for injury caused by such an
act.
3
No. 2021AP1054.jjk
¶51 In this case Fleming alleges that the AAU was
negligent in hiring, retaining, and supervising Kingcade.4 The
elements of a negligent supervision claim are: (1) the
organization had a duty of care owed to the plaintiff; (2) the
organization breached its duty; (3) a wrongful act or omission
of an organization member was a cause-in-fact of the plaintiff's
injury; and (4) an act or omission of the organization was a
cause-in-fact of the wrongful act of the member. See John Doe 1
v. Archdiocese of Milwaukee, 2007 WI 95, ¶16, 303 Wis. 2d 34,
734 N.W.2d 827. Specifically, the cause of action in this case
is to recover damages for injury caused by two acts: (1)
Kingcade's assault of Fleming; and (2) the AAU's negligent act
of allowing Kingcade to become a member of the AAU and coach
youth basketball without adequate supervision despite his
history of child sexual assault. Fleming must prove that both
acts caused her injury in order to establish causation and
recover damages.
¶52 If the AAU had allowed Kingcade to become an AAU
member and coach despite his history of child sexual assault but
Kingcade had not then assaulted Fleming, then Fleming would not
be able to support this specific cause of action against the
AAU. Fleming's injury, as alleged in this particular cause of
The elements of these negligence claims are generally
4
expressed in terms of an employer/employee relationship.
Fleming's claim characterizes Kingcade as a "servant" of the
AAU. Neither the relationship between the AAU and Kingcade nor
the applicability of such negligence claims to these facts are
at issue in this appeal. As such, I present the elements as an
organization/member relationship, and, for simplicity, focus on
the negligent supervision claim.
4
No. 2021AP1054.jjk
action, would not have existed but for Kingcade's assaults.
Those assaults are acts that would constitute (and in fact did
constitute) a violation of Wis. Stat. §§ 948.02 & 948.025.
Therefore, Flemings's specific cause of action is to recover
damages for injury caused by acts that constitute a violation of
an enumerated child sexual assault statute. Section 893.587
squarely governs and extends the time to file a claim until
Fleming turns 35.
¶53 The majority opinion confuses this plain reading in a
number of ways. First, it tortures the language of the statute
to create an atextual requirement that the defendant in the
action be the same person who committed the act of child sexual
assault enumerated in the statute. Second, the majority focuses
on the statutory and legislative history of Wis. Stat. § 893.587but fails to acknowledge that the statutory language never
excluded actions against third parties. Third, the majority
mistakenly asserts that Fleming's reading of the statute renders
operative portions of the statutes meaningless. Fourth, the
majority's approach raises constitutional issues that are easily
avoided by a straightforward reading of the statute. I will
address each of the majority's missteps in turn.
1. Textual Analysis
¶54 The majority's first misstep is a tortured textual
analysis that contradicts itself in its quest to add additional
requirements not present in the statute. The majority opinion
begins by rightly acknowledging that "the statute defines the
'action to recover damages' using two criteria: the presence of
5
No. 2021AP1054.jjk
an injury, and the type of injury-causing act." Majority op.,
¶24. But the majority quickly contradicts itself, insisting
that "it is not enough that the 'action to recover damages' is
'for injury' and that this injury be 'caused by an [enumerated]
act.'" Id., ¶25. If the statute provides only two criteria to
define the "action to recover damages," then how could those
criteria not be enough?
¶55 The majority then asserts that "the question is not
whether the injury was 'caused by an act that would constitute a
violation of' an enumerated ch. 948 offense" because such a
reading does not account for the part of the statute that
requires "an action to recover damages." Id., ¶26. That is
nonsense. The words of the statute clearly indicate that this
is precisely the question to answer, and the "action to recover
damages" language remains fully operative. There clearly must
be an action to recover damages, and the statute sets out two
criteria for what that action must be: it must be for injury and
the injury must be caused by an act that would constitute a
violation of an enumerated statute. As set out above, Fleming's
action against the AAU satisfies both criteria.
¶56 All of the majority's attempts to reorder the words of
the statute lead to the same result. The reordering only serves
to confuse the analysis and provide an opening to create
atextual requirements. For example, the majority opinion states
that "if the alleged injury was caused by an enumerated act, but
the 'action to recover damages' is not 'for' injury as caused by
that same act, then it is a different kind of 'action to recover
6
No. 2021AP1054.jjk
damages' and § 893.587 does not apply." Id. As already
explained, Fleming's action against the AAU is an "action to
recover damages" "for" injury caused by an enumerated act and an
additional act of negligence by the AAU. Fleming's cause of
action requires her to establish that both acts caused her
injury. Thus, Fleming's cause of action satisfies this
formulation of the majority's reading of the statute as well.
¶57 The majority then maintains that "[a]s a result, for
§ 893.587's extended limitations period to apply . . . a
plaintiff must have alleged in the complaint that the defendant
caused the plaintiff's injury by committing an enumerated act."
Id. (emphasis added). This requirement that the defendant
themselves must have committed an enumerated act comes out of
thin air and not from the words of the statute——no matter how
the majority reorders or emphasizes certain words.
¶58 Wisconsin Stat. § 893.587 does not specify who the
action to recover damages must be against. The statute does not
qualify the nature of the action other than that it must be for
a qualifying injury. Fleming's injury qualifies under the
criteria of the statute.
¶59 The majority supports its reading, in part, by looking
to Doe 1's analysis, which declined to apply Wis. Stat.
§ 893.587 to a fraudulent representation claim. Majority op.,
¶32; Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d
34, 734 N.W.2d 827. Doe 1 explicitly left open the question
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presented to us in this case.5 However, its holding that
negligent supervision claims are derivative of the employee's
wrongful acts while fraudulent representation claims are not
weighs heavily in Fleming's favor, rather than the AAU's. See
Doe 1, 303 Wis. 2d 34, ¶50. The Doe 1 court distinguished the
two types of claims based on the cause of the plaintiffs'
injuries, which goes to the very heart of the question presented
to us today.
¶60 Doe 1 concerned claims of both negligent supervision
and fraudulent representation by multiple plaintiffs. The
negligent supervision claims were based on the Archdiocese's
unsupervised placement of a priest who had previously molested
children and the priest's subsequent molestation of more
children. Id., ¶5. The fraudulent representation claims were
based on the Archdiocese's affirmative representation that the
priest did not have a history of molesting children. Id.
¶61 On the negligent supervision claim, Doe 1 held that
"the claims of negligent supervision made here are derivative of
the underlying sexual molestations." Id., ¶36. As the court
explained, "a derivative claim is one 'that derives from, grows
out of, or results from an earlier or fundamental state or
condition.'" Id., ¶24 fn. 11 (citing Webster's Third New
International Dictionary Unabridged 608 (1961 ed.)). In the
5Wisconsin Stat. § 893.587 did not apply to the negligent
supervision claims in Doe 1 because the assaults occurred on or
before 1982, prior to the relevant amendments to § 893.587. Doe
1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶59 n. 18, 303
Wis. 2d 34, 734 N.W.2d 827.
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case of negligent supervision, the claim derives, or results
from, the employee's wrongful act. Id. In contrast, "claims
for fraud based on intentional misrepresentations are
distinguishable from negligent supervision claims" because
"fraud claims are not derivative . . . ." Id., ¶50. A fraud
claim is not derivative, the court reasoned, because it "does
not require proof of a wrong by an employee that causes injury
to another." Id., ¶24 fn. 11. Instead, "the wrongful act is
the . . . fraudulent representation" and "[f]raud claims, if
proven, provide a separate cause of the plaintiffs' injuries."
Id., ¶50.
¶62 The Doe 1 court's assertion that Wis. Stat. § 893.587did not apply to fraudulent representation claims is consistent
with its holding regarding derivative claims. It makes sense
that if an action for fraudulent representation "does not
require proof of a wrong by an employee that causes injury to
another," then it is not an "action to recover damages for
injury caused by an act that would constitute a violation" of
the child sexual assault statutes. See id., ¶24 fn. 11;
§ 893.587. The same logic does not apply to a negligent hiring
action, which is "derivative of an employee's wrongful act that
causes injury to another" and does require proof that an
employee's wrongful acts caused the plaintiff's injury. See Doe
1 303 Wis. 2d 34, ¶16; ¶24 fn. 11.
¶63 Even without the "derivative" versus "not derivative"
labels, all we need to do is look to the elements of a negligent
supervision claim and an intentional misrepresentation claim to
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distinguish them. The elements of fraudulent misrepresentation,
as discussed in Doe 1, are:
(1) the defendant made a factual representation; (2)
which was untrue; (3) the defendant either made the
representation knowing it was untrue or made it
recklessly without caring whether it was true or
false; (4) the defendant made the representation with
intent to defraud and to induce another to act upon
it; and (5) the plaintiff believed the statement to be
true and relied on it to his/her detriment.
Id., ¶38 (quoting Kaloti Enters., Inc. v. Kellogg Sales Co.,
2005 WI 111, ¶12, 283 Wis. 2d 555, 699 N.W.2d 205). Each of
these elements is focused exclusively on the acts of the person
making the representation and the response of the plaintiff. In
contrast, the elements of a negligent supervision claim require
both that "a wrongful act or omission of an employee was a
cause-in-fact of the plaintiff's injury" and that "an act or
omission of the employer was a cause-in-fact of the wrongful act
of the employee." Id., ¶16. The elements require two acts by
different actors. In Fleming's case, she must establish one act
by Kingcade, and one act by the AAU. Thus, based on these
elements, § 893.587 should apply to Fleming's negligent
supervision cause of action even though it was not applied to
the fraudulent representation claims in Doe 1.
¶64 In sum, neither the language of the statute nor Doe 1
supports the majority's assertion that § 893.587 applies only to
actions where the defendant is the same person who committed the
act of child sexual assault. Instead, both the language of the
statute and Doe 1 indicate that Fleming's action is "[a]n action
to recover damages for injury caused by an act that would
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constitute a violation of" an enumerated child sexual assault
statute, and thus can be brought until Fleming turns 35.
2. Statutory and Legislative History
¶65 The majority recounts the legislative history of Wis.
Stat. § 893.587 without ever acknowledging that the statute was
always written to apply to actions against third parties.6 The
relevant portion of the statute originally read: "An action to
recover damages for injury caused by incest shall be commenced
within 2 years after the plaintiff discovers the fact and the
probable cause . . . ." Wis. Stat. § 893.587 (1987-88). The
operative language has not changed. It emphasizes that the
action to recover damages be for injury, and that the injury be
caused by incest. This does not mean that the only action to
recover damages could be against the person committing incest.
¶66 The legislature's subsequent amendments did not change
this operative language. The legislature never introduced a
requirement regarding the identity of the defendant in the
action to recover damages. See 2001 Wis. Act 16, 2003 Wis. Act
279, 2005 Wis. Act 277.
6 The majority goes so far as to state that "the fact that
the legislature enacted § 893.587 in response to Hammer, where
the only claim was against the individual who committed the
incest, supports our interpretation of § 893.587." ¶34. The
language of a statute cannot be limited by the specific fact
pattern presented in a case that inspired the drafting of that
statute. This court should not imply that statutes can be thus
limited.
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No. 2021AP1054.jjk
¶67 The majority also finds it significant that the
legislature has, on multiple occasions, rejected the following
proposed amendment:7
An action to recover damages against any person for
injury caused by an act that would constitute a
violation of s. 948.02, 948.025, 948.06, 948.085, or
048.095 an adult's sexual contact with anyone under
the age of 18 or by an act committed by an adult that
would create a cause of action under s. 895.442 shall
may be commenced before the injured party reaches the
age of 45 or be barred at any time.
This amendment includes the addition of the words "against any
person" to qualify the action to recover damages.
But that is not the only change it would make. The proposed
amendment would also remove any limitation on the time period in
which a child victim must bring an action to recover damages.
It would also add a requirement that the injury-causing act be
committed by an adult and would remove the enumerated child
sexual assault statutes in favor of more general language
encompassing any sexual contact with a child. The legislature
may have rejected this amendment because it disagreed with any
number of these significant proposed changes. This rejection
does not reliably indicate that the legislature was concerned
about the addition of the phrase "against any person."
¶68 But even if the only proposed change in this amendment
were the addition of "against any person," we could just as
easily assume the legislature rejected such a proposal because
the change is unnecessary. The statute currently contains no
7 Underlines indicate proposed additions, and strikethroughs
indicate proposed deletions.
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No. 2021AP1054.jjk
parameters regarding the identity of the defendant. Why would
the legislature need to further specify that the action to
recover damages could be against any person? In short, the
legislature wrote and amended the statute so that it has always
applied to actions against third-parties.
3. Surplusage
¶69 The majority mistakenly states that reading Wis. Stat.
§ 893.587 as I do——providing no limitations regarding the
identity of the defendant——would render several parts of Wis.
Stat. § 893.587 meaningless. See majority op., ¶31. The parts
the majority reference as meaningless actually functionally
expand § 893.587 under any reading of the statute. Furthermore,
the majority appears to forget that the enumerated statutes
serve a purpose beyond their connection to § 893.587, which
renders the referenced language far from meaningless.
¶70 In 2001, the legislature amended Wis. Stat. § 893.587to apply to acts other than incest and to include enumerated
statutory references rather than referencing only the general
act of incest. 2001 Wis. Act 16. Now, instead of an undefined
reference to an "act of incest," § 893.587 lists enumerated
statutes that clearly define the possible injury-causing acts.
This clarifying change could not be rendered "meaningless" by
any reading of the statute.
¶71 In 2003, the legislature again amended § 893.587 to
extend the limitation period to when the victim turns 35 and to
include an "act that would create a cause of action under s.
895.71" to the enumerated injury-causing acts. 2003 Wis. Act
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279. Section 895.71 was later renumbered to § 895.442. Section
895.442 creates a cause of action against clergy who have sexual
contact with a minor as well as a cause of action against
religious organizations who knowingly hire clergy who have
previously had sexual contact with a minor.
¶72 The majority asserts that Fleming's interpretation of
§ 893.587 would render this amendment meaningless because if the
statute already included claims against third parties, "there
would be no need for the statute to reference claims against
religious organizations." Majority op., ¶31. Not so——
referencing § 895.442 increased the scope of § 893.587 to
include causes of action that were not covered by any of the
other enumerated statutes. First, adding § 895.442 expanded the
limitation period for victims to bring an action against a
clergy member if they were abused by the clergy member when they
were 16 or 17 years old. Likewise, adding § 895.442 expanded
the limitation period for 16- or 17-year-old victims to bring a
claim against a third party (in this case the religious
organization). This is true even though the statute already
applied to actions against third parties for injuries caused by
violations of the other enumerated statutes.8 The reference to
The references to Wis. Stat. § 948.02 and § 948.025 would
8
not allow for such claims because they both require the victim
to be under 16 years old, § 948.06 and § 948.085 may not apply
because they require a familial or care-taking relationship
between perpetrator and victim, and § 948.095 may not apply
because it requires the perpetrator to be a school staff member
or in a position that requires the perpetrator to work directly
with children. Each of these are additional requirements that
§ 895.442 does not include.
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No. 2021AP1054.jjk
§ 895.442 was therefore not meaningless, but instead
functionally expanded the scope of the statute. To the extent
that causes of action brought under § 895.442 might overlap with
those brought for violations of the other enumerated statutes,
the same can be said for the other enumerated statutes under any
reading of § 893.587.9
¶73 Furthermore, the majority ignores the fact that the
enumerated statutes serve an independent purpose outside of
their use in § 893.587. The majority claims that the enumerated
statutes "specifically identify when the extended limitations
period applies against persons or organizations that did not
directly commit an act of sexual abuse." Id. But that is not
true. The enumerated statutes create some offenses or causes of
action against persons or organizations that did not directly
commit an act of sexual abuse, but the statutes do not do so for
the purpose of identifying an extended limitation period. The
enumerated statutes' purpose is to create and define those
offenses or causes of action. In contrast, § 893.587 addresses
9 For instance, § 948.025 requires three or more violations
of certain subsections of § 948.02. The fact that § 893.587
lists both statutes even though § 948.02 covers acts that
violate § 948.025 suggests that the legislature may have
prioritized covering its bases over maximum efficiency.
Although we avoid reading a statute to create surplusage, the
legislature is not restricted to writing statutes in the most
efficient manner possible. See Milwaukee Dist. Council 48 v.
Milwaukee Cnty., 2019 WI 24, ¶24, 385 Wis. 2d 748, 924 N.W.2d
153 (discussing the "reality that '[s]ometimes drafters do
repeat themselves and do include words that add nothing of
substance.'" (quoting Scalia & Garner, Reading Law: the
Interpretation of Legal Texts 176 (2012)).
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No. 2021AP1054.jjk
only the timing limitation of actions and does not create any
action in and of itself.
¶74 The fact that Wis. Stat. § 893.587 already
contemplates the timing limitation of a common law cause of
action for negligent supervision does not influence the
legislature's decision to implement a statutory cause of action
for negligent supervision by religious organizations in
§ 895.442(2)(b). Likewise, it is not meaningless to include a
reference to that statutory cause of action in § 895.587. As
such, Fleming's reading of the statue, which I would adopt, does
not render any portion of the statutes meaningless.
4. Constitutional Avoidance
¶75 Finally, the majority's reading of the statute likely
renders the statute unconstitutional. This issue could be
easily avoided by adopting Fleming's straightforward reading of
the statute.
¶76 I agree with the majority that a canon of
interpretation cannot trump a plain meaning interpretation of an
unambiguous statute. See majority op., ¶31 n.10. But as I
explain above, the majority does not offer a convincing reading
of the plain meaning of Wis. Stat. § 893.587, let alone an
unambiguous reading. Here, I maintain that the statute
unambiguously applies to third-party claims. However, if I were
to accept the majority's alternative reading as reasonable, and
thus agreed that the statue is ambiguous, the principle of
constitutional avoidance supports Fleming's position. When
faced with an ambiguous statute where one reading of the statute
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No. 2021AP1054.jjk
raises serious constitutional questions, this court has long
favored the reading of the statute that avoids constitutional
issues. See Baird v. La Follette, 72 Wis. 2d 1, 5, 239 N.W.2d
536 (1976) ("Where there is serious doubt of constitutionality,
we must look to see whether there is a construction of the
statute which is reasonably possible which will avoid the
constitutional question.").
¶77 The majority's reading both twists the language of the
statute and gives rise to a possible constitutional
issue. Under the majority's reading, §§ 893.587 and 895.442
work together to allow an extended period of time for a victim
to bring a negligent supervision cause of action, but only
against a religious organization. An action against any other
secular organization for acts of its employees or members would
have a much shorter statute of limitations. This arbitrarily
favors secular organizations and clearly runs the risk of
violating both the Federal and Wisconsin Constitutions.10 Such a
risk can be easily avoided by interpreting the statute as I
have, which would provide a consistent limitations period in
which to bring negligent supervision claims based on a violation
of an enumerated statute.
10 U.S. Const. amend. I; Wis. Const. art. I, § 8.
17
No. 2021AP1054.jjk
B. Tolling
¶78 Wisconsin Stat. § 893.1311 operates to toll a "law
limiting the time for commencement of an action" while the
action is pending and for up to "30 days from the date of final
disposition" of that action. Wis. Stat. § 893.13(2), (3). The
AAU argues that Wis. Stat. § 893.587 is a statute of repose
rather than a statute of limitations. As such, it argues that
§ 893.13 does not operate to toll the limitation in § 893.587.
¶79 There is no functional difference between a statute of
limitations and a statute of repose in Wisconsin law, at least
for the purposes of determining whether a tolling statute
applies. See Landis v. Physicians Ins. Co. of Wis., 2001 WI 86,
¶¶51-61, 245 Wis. 2d 1, 628 N.W.2d 893 (holding that the
statutory phrase "any applicable statute of limitations"
includes statutes of repose, in part because "the phrase
'statute of repose' is judicial terminology and is not featured
in legislative lingo."). Whether § 893.587 is a statute of
limitations or a statute of repose, it is a "law limiting the
time for commencement of an action." Wis. Stat. § 893.13. As
such, § 893.13 tolls the time limit set in § 893.587.
¶80 Fleming filed her action in federal court before she
turned 35 years old——before the limitation period under Wis.
Stat. § 893.587 ran. She then filed her action in Wisconsin
The briefing in this case focuses on Wis. Stat. § 893.1311
as the operative statute to toll Fleming's statute of limitation
while her federal case was pending. It appears that both
§ 893.13 and 893.15 are required to toll a limitation during the
pendency of a federal case, but this does not change the
relevant analysis, so I will also focus on § 893.13.
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No. 2021AP1054.jjk
court within 30 days of the final disposition of the federal
case. Her action was timely filed.
III. CONCLUSION
¶81 Fleming's cause of action against the AAU for
negligent supervision is "an action to recover damages for
injury caused by an act that would constitute a violation
of . . . s. 948.02 [and] 948.025" under Wis. Stat. § 893.587.
As such, Fleming had until she was 35 years old to bring her
action against the AAU, and the time limit was further tolled by
§ 893.13. Because the majority ignores the plain meaning of
§ 893.587's text and holds that Fleming's action is untimely, I
respectfully dissent.
¶82 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.

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1