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  • October 11, 2022

    Child Sex Assault Statute of Limitations Extender Applies to Negligent Hiring Lawsuit

    The Wisconsin Court of Appeals has ruled that a statute that extends the statute of limitations for actions seeking damages for child sexual assault applies to a negligent hiring and supervision action.

    Jeff M. Brown

    A Stopwatch Sits Atop A Conference Table Next To A Judge’s Gavel With Law Books In The Background

    Oct. 11, 2022 – The Wisconsin Court of Appeals has ruled that a statute that extends the statute of limitations for actions seeking damages for child sexual assault applies to a negligent hiring and supervision action.

    In Fleming v. Amateur Athletic Union of the United States, Inc., 2021AP1054 (July 14, 2022), the Court of Appeals District IV also held that the statute applies to both secular and religious organizations.

    Federal Case

    From 1997 to 2000, Femala Fleming played in a youth 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 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. Some of the assaults occurred in hotel rooms in Minnesota and Wisconsin, when Fleming’s team participated in tournaments sanctioned by the AAU.

    Fleming sued the AAU and others in federal court in November 2019, when she was 34 years old. The 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.

    State Case

    Fleming filed the present case in Dane County Circuit Court on Aug. 31, 2020. She was 35 years old at the time.

    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 was not that person.

    The circuit court granted the motion to dismiss.

    Statute Silent on Theories of Liability

    Writing for a three-judge panel, Judge Joanne Kloppenburg explained that section 893.587 applies to an action seeking recovery for injury caused by two categories of acts: 1) an act that would violate a series of statutory provisions prohibiting child sexual assault; and 2) an act that would create a cause of action under section 895.442, which allows a cause of action for damages for injury caused by a clergy member.

    With regard to the acts that would violate one of the child sexual assault statutes, Kloppenburg pointed out that section 895.587 is not limited to causes of action brought directly against the person who allegedly violated the child sexual assault statutes.

    “This language contains no express limitation regarding under what theory of liability an injured party may recover the damages sought for the injury, or what party an action may be brought against, in order to be subject to the extended period of limitation,” Judge Kloppenburg wrote.

    “By the plain meaning of this language, section 893.587 defines only the universe of injury-causing acts, not actors or theories of liability.”

    Linked Causes-in-Fact

    Under Wisconsin Supreme Court precedent, Kloppenburg pointed out, there are two causes-in-fact which a plaintiff must prove to make out a negligent hiring and supervision claim: the employee’s wrongful act, which is the cause-in-fact of the plaintiff’s injury; and 2) the employer’s negligence, which is the cause-in-fact of the employee’s wrongful act.

    That brought Fleming’s lawsuit squarely within the ambit of section 893.587, Judge Kloppenburg concluded.

    “Therefore,” Kloppenburg wrote, “Fleming’s action for negligent supervision is an action to recover damages for an injury caused by Kingcade’s act.”

    AAU argued that Fleming had alleged no act against AAU that would violate one of the child sexual assault statutes. But Judge Kloppenburg explained that that argument took the wording of section 893.587 out of context.

    “There is no language in section 893.587 that limits its application only to actions seeking damages against the party whose acts constitute the violations of the enumerated statutes,” Kloppenburg wrote.

    Religious vs. Secular Organization

    AAU also argued that the fact that section 893.587 references actions against clergy members meant that the legislature did not intent section 893.587 to apply to actions against secular organizations.

    After all, AAU argued, when the legislature enacted section 895.442, it could have enacted a similar provision allowing actions seeking damages for child sexual assault against secular organizations and then amended section 893.587 to include a reference to that provision.

    But that argument ignored the word “or” between the two clauses in section 893.587, Judge Kloppenburg explained. The word “or” functions as a connector, Kloppenburg pointed out.

    As a result, Kloppenburg wrote, “the two defined types of injury-causing acts [specified in section 893.587] … are alternatives, each of which alone would be sufficient to bring the action within the extended period of limitation in section 893.587.”

    Judge Kloppenburg also explained that the legislative history of section 893.587 undermined AAU’s argument.

    Before the enactment of section 895.442, Kloppenburg pointed out, actions alleging negligent hiring and supervision against religious organizations were prohibited by the First Amendment.

    The enactment of section 895.442 and the creation of the reference to it in section 893.587, Kloppenburg concluded, “means that, with respect to seeking damages for injury caused by acts of child sexual assault, actions against religious organizations are treated the same as actions against secular organizations for limitation statute purposes.”  

    Tolling Statute Applies

    The court of appeals also held that Fleming timely filed her state case, even though it was filed after she turned 35.

    Judge Kloppenburg explained that section 893.13 tolls the running of the period of time in which a person must bring an action from the date the action is commenced until the final disposition of the action, plus 30 days.

    “Here, Fleming filed the current action within thirty days of the final disposition of her action in federal court,” Kloppenburg wrote, “Therefore, her action is timely under section 893.13.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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