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

2023 WI 40, 990 N.W.2d 244, 407 Wis. 2d 273

• Court: Wisconsin Supreme Court
• Decided: May 17, 2023
• Docket: 2021AP001054
• Status: Published

Opinion

2023 WI 40

SUPREME 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 614 PDC 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 40 NOTICE 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.

2 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

3 No. 2021AP1054

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.

4 No. 2021AP1054

¶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 5 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

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

6 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. § 893.587

applies 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

7 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 8 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."

9 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.

10 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.

11 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.

12 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).

13 No. 2021AP1054

"[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

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

14 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

15 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").

16 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

17 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

¶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. § 893.587

is 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. § 893.587

did 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).

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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.

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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.

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

offenses against children "shall be commenced before the injured

party reaches the age of 35 years or be barred." According to

alleged AAU negligently hired, retained, and supervised Kingcade, who sexually assaulted Fleming between 1997 and 2000,

that Wis. Stat. § 893.13 tolls this deadline for "30 days from

the date of final disposition" of Fleming's "action to enforce

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

¶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

different act——AAU's act of negligently hiring, retaining, and

supervising Kingcade. Because Fleming does not allege that AAU

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

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. § 893.587

but 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

7 No. 2021AP1054.jjk

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.

8 No. 2021AP1054.jjk

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. § 893.587

did 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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¶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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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. § 893.587

to 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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§ 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)).

15 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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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.

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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. § 893.13 11

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.

18 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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