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

Decision Date17 May 2023
Docket Number2021AP1054
PartiesFemala Fleming, Plaintiff-Appellant, v. Amateur Athletic Union of the United States, Inc., Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

ORAL ARGUMENT: February 23, 2023

Circuit Court Dane County L.C. No. 2020CV1789 Rhonda L Lanford Judge:

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

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 &amp 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.

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:

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 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's[1] order dismissing Femala Fleming's action against Amateur 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 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 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."

¶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 in hiring, retaining, and supervising Kingcade, and "[a]s a direct and proximate result of [AAU's] negligence" Fleming "was sexually abuse[d] by Kingcade" and suffered damages. AAU filed a motion to dismiss based on the three-year statute of limitations under Wis.Stat. § 893.54(1m)(a) for negligence claims. Fleming argued this statute of limitations is inapplicable and that the appropriate statute of limitations is instead Wis.Stat. § 893.587, which states, "[a]n action to recover damages for injury caused by an act that would constitute a violation of [certain enumerated criminal sexual assault offenses against minors] . . . shall be commenced before the injured party reaches the age of 35 years or be barred." Fleming further argued that, though she already reached the age of 35, Wis.Stat. § 893.13 tolled the limitations period during the duration of her federal action, making this claim timely. AAU responded in supplemental briefing that § 893.13 did not toll the limitations period because "§ 893.587 functions as a statute of repose, not limitations and as such, it is explicitly not subject to tolling."

¶9 In a written decision dated April 30, 2021, the circuit court granted AAU's motion to dismiss. The court concluded,

Due to the nature of the statutes listed in [Wis. Stat.] § 893.587, and the legislature choosing to hold religious organizations accountable until an individual reaches the age of 35 and not extending that accountability to other similar groups this Court finds that [§ ]893.587 was not intended to provide an extended statute of limitations for the claims 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...

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  • Wisconsin Supreme Court Update: June 2023
    • United States
    • Mondaq United States
    • 13 Junio 2023
    ...courts.) Fleming v. Amateur Athletic Union of the United States, No. 2021AP1054 Employment Decision Filed: May 17, 2023 Public Citation: 2023 WI 40 Does an extended statute of limitations for an "action to recover damages for injury cause by an act that would constitute a violation of" cert......

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