June 2, 2023 – A law that extends the statute of limitations for actions seeking redress for injuries caused by sexual assault does not apply to a claim of negligent supervision of an employee who committed sexual assault, the Wisconsin Supreme Court has ruled.
In Fleming v. Amateur Athletic Union of the United States, 2023 WI 40 (May 17, 2023), the supreme court (4-3) held that the statute applies only to claims for damages caused by the sexual assault, and not related to acts caused by third parties.
Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Bradley, and Justice Brian Hagedorn. Justice Jill Karofsky wrote a dissenting opinion, joined by Justice A.W Bradley and Justice Rebecca Dallet.
From 1997 to 2000, Femala Fleming played in a basketball league affiliated with the American Athletic Union of the United States, Inc. (AAU). During the time Fleming played in the AAU league, she was between 13 and 16 years old.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Fleming’s coach, Shelton Kingcade, was a member of the AAU. Kingcade sexually assaulted Fleming multiple times.
Fleming sued the AAU and others in federal court on Nov. 1, 2019, when she was 34 years old. She turned 35 three days later.
Fleming’s lawsuit alleged causes of actions related to Kingcade’s sexual assaults. The federal court dismissed the lawsuit for lack of personal jurisdiction on Aug. 11, 2020.
Fleming filed the present case in Dane County Circuit Court on Aug. 31, 2020.
In the state lawsuit, Fleming alleged that AAU was negligent in hiring and supervising Kincade. The AAU moved to dismiss the lawsuit for failure to state a claim.
AAU argued that the lawsuit was untimely because it was filed after the three-year statute of limitations established in Wis. Stat. section 893.54(1m)(a).
AAU also argued that section 893.587, which specifies that an action to recover damages for violations of statutes that prohibit child sexual assault must be filed before the injured party turns 35, applies only to lawsuits filed against the person who abused the plaintiff and AAU wasn’t that person.
The circuit court granted the motion to dismiss. Fleming appealed.
In October 2022, the Wisconsin Court of Appeals District IV held that section 893.587 applies to a negligent hiring and supervision action.
Lawsuit Claims Injury from Negligence, Not ‘Enumerated Act’
Before the supreme court, Fleming argued that section 893.587 applied to her lawsuit because the injury it sought to redress was, ultimately, the injury that Kingcade caused by sexually assaulting her, which meant the injury was “caused by an [enumerated] act” as specified in the statute.
But Chief Justice Ziegler concluded that Fleming’s lawsuit did not come within the ambit of section 893.587, because it sought damages for an injury caused by the negligence of AAU, rather than any “injury caused by an [enumerated] act.”
“When the injury-caused ‘act’ changes, so too does the nature of the ‘action to recover damages,’” Ziegler wrote.
A Look to Legislative History
Chief Justice Ziegler reasoned that the legislative history of section 893.587 supported such a conclusion.
She noted that the legislature had amended the statute in 2001 to add to the list of enumerated acts contained therein, to remove the requirement that a perpetrator have a familial or adoptive relationship with the child.
“It retained the same operative language – ‘[a]n action to recover damages for an injury caused by’ – and did not extend the limitations period in any way other than by expanding this list of enumerated acts,” Ziegler wrote.
Look to Canons and Precedent
Additionally, Chief Justice Ziegler concluded that to adopt Fleming’s argument would render some parts of section 893.587 meaningless.
“If section 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 section 895.442,” Ziegler wrote.
Chief Justice Ziegler pointed out that the supreme court had held that section 893.587 does not apply to claims of negligent supervision and fraud brought against a Catholic archdiocese for injuries caused by sexual abuse of the archdiocese’s employees.
“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 section 893.587 does not apply,” Ziegler wrote.
Dissent: Section 893.587 ‘Squarely’ Applies
In her dissent, Justice Karofsky noted that to succeed on her claim, Fleming must prove that: 1) AAU was negligent in hiring Kingcade; and 2) Kingcade assaulted her.
“Fleming’s injury, as alleged in this particular cause of action, would not have existed but for Kingcade’s assaults,” Karofsky wrote. “Those assaults are acts that would constitute (and in fact did constitute) a violation of sections 948.02 and 948.025.
“Therefore, Fleming’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.”
The majority, Justice Karofsky wrote, had created “out of thin air” and “not from the words of a statute” a “requirement that the defendant themselves must have committed an enumerated act.”
Karofsky also argued the majority’s interpretation created a constitutional problem with section 893.587, because it allows a victim to bring a negligent supervision claim under the statute but only against a religious institution (the section also applies to acts that would give rise to a cause of action under section 894.442, which prohibits sexual abuse by clergy members).
“This arbitrarily favors secular organizations and clearly runs the risk of violating both the Federal and Wisconsin Constitutions,” Justice Karofsky wrote.