Fleming v. Amateur Athletic Union of the U.S., Inc.

Docket NumberAppeal No. 2021AP1054
Decision Date14 July 2022
Parties Femala FLEMING, Plaintiff-Appellant, v. AMATEUR ATHLETIC UNION OF the UNITED STATES, INC., Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jason Sandler of Herman Law, Boca Raton, Florida, and James Scoptur of Aiken & Scoptur, Brookfield.

On behalf of the defendant-respondent, the cause was submitted on the brief of John J. Reid of Cassiday Schade LLP, Milwaukee.

Before Kloppenburg, Graham, and Nashold, JJ.


¶1 Femala Fleming sued Amateur Athletic Union of the United States, Inc. (AAU), alleging negligent hiring and supervision of a volunteer basketball coach who was an AAU member and who sexually assaulted Fleming when she was a teenaged member of an AAU sponsored basketball club. The circuit court dismissed Fleming's negligence action as untimely under WIS. STAT. § 893.54 (2019-20).1 On appeal, Fleming argues that the applicable limitation statute is WIS. STAT. § 893.587, which preserves certain causes of action related to child sexual assault until the claimant is thirty-five years old.2 AAU argues that § 893.587 applies only to suits brought against the claimant's abuser, or, in cases involving abuse by a member of the clergy, suits brought against a religious organization, and AAU is neither Fleming's abuser nor a religious organization.

¶2 We agree with Fleming. WISCONSIN STAT. § 893.587 in pertinent part extends until a claimant is thirty-five years old the time to file "[a]n action to recover damages for injury caused by an act that would constitute a violation of" certain enumerated statutes that define as crimes certain conduct related to child sexual assault. Sec. 893.587. Here, Fleming's action for negligent hiring and supervision alleges that AAU is liable for damages for the injuries that were caused by acts that constitute a violation of one or more of the statutes enumerated in § 893.587, committed by AAU's alleged "servant."3 Accordingly, we conclude, based on the pertinent language of the statute and consistent with case law, that § 893.587 is the applicable limitation statute. We also conclude, based on the language of the statute and consistent with case law, that the tolling statute, WIS. STAT. § 893.13, applies to actions brought under § 893.587. Therefore, Fleming's action is timely, and we reverse the circuit court's order granting AAU's motion to dismiss and remand for further proceedings.


¶3 The following facts are taken from the allegations in the complaint and undisputed federal and state court case records.

¶4 AAU is a non-profit, multi-sport organization that offers amateur sports programs and events for minors. Fleming was a member of a youth basketball club affiliated with AAU during the years 1997-2000, when she was between the ages of thirteen and sixteen. Fleming's basketball coach during this time was Shelton Kingcade, who himself was a member of the AAU. While serving as her coach, Kingcade sexually assaulted Fleming on multiple occasions, including in hotel rooms when they attended basketball tournaments in Wisconsin and Minnesota which were sanctioned and organized by AAU.4

¶5 In November 2019, when she was thirty-four years old, Fleming filed suit against AAU and others in federal court alleging causes of action related to Kingcade's sexual assault of Fleming. Doe v. Amateur Athletic Union of the United States, Inc., et al. , W.D. Wis. 19-cv-00901-jdp. The lawsuit was dismissed on August 11, 2020, for lack of personal jurisdiction. Id.

¶6 On August 31, 2020, Fleming filed the current action in Dane County circuit court. AAU moved to dismiss, arguing that the action is untimely under the applicable three-year limitation statute, WIS. STAT. § 893.54(1m)(a). AAU also argued that the extended period of limitation in WIS. STAT. § 893.587 is inapplicable because it allows a person injured by certain acts of sexual assault to file a civil suit before the person reaches age thirty-five against only the injured person's abuser, and AAU is not Fleming's abuser.

¶7 Fleming responded by arguing that "the language of [ WIS. STAT. ] § 893.587, ‘injury caused by an act that would constitute a violation of [enumerated criminal statutes],’ describes a claim of negligent hiring or supervision where the underlying wrongful act by the defendant's servant is also a violation of one of the enumerated criminal statutes." Fleming argued that § 893.587 does not limit who may be liable for such an injury-causing act. In addition, Fleming argued that the current action is timely under § 893.587 because she initiated the lawsuit in federal court when she was thirty-four, and she filed the present action in Dane County within thirty days from the date of final disposition of the federal court action in compliance with the applicable tolling statute, WIS. STAT. § 893.13.5

¶8 In supplemental briefing, AAU argued that the tolling statute, WIS. STAT. § 893.13, applies only to statutes of limitation, and, therefore, it does not apply to WIS. STAT. § 893.587 because § 893.587 is a statute of repose. AAU argued that because Fleming filed this action when she was already thirty-five, her claim is untimely under § 893.587. Fleming responded that § 893.587 is a statute of limitation, but that regardless of such characterization, § 893.13 applies to both statutes of limitation and statutes of repose and, accordingly, her current action is timely as it was filed within thirty days of her federal action being dismissed.

¶9 The circuit court granted AAU's motion to dismiss.

¶10 Fleming appeals.


¶11 In her complaint, Fleming alleges that Kingcade "sexually abused" her when she was thirteen to sixteen years old, and that the "acts of sexual abuse included vaginal intercourse, oral sex and anal sex." Fleming also alleges that she suffered "severe psychological and emotional injuries" "as a result of the sexual assaults" by Kingcade, as well as "severe psychological, emotional and physical injuries and emotional distress" "as a direct and proximate result of Defendant AAU's negligence" in hiring and supervising Kingcade. Thus, Fleming seeks damages for injury that was caused by Kingcade's acts, and alleges that AAU's negligence caused Kingcade's injury-causing acts.

¶12 Whether the circuit court properly granted AAU's motion to dismiss based on Fleming's action being untimely depends on whether WIS. STAT. § 893.587 applies to her negligent hiring and supervision cause of action and, if so, whether the tolling statute, WIS. STAT. § 893.13, applies to the circumstances here. These issues are matters of statutory interpretation. We first state the standard of review governing a circuit court's order granting a motion to dismiss and the general principles governing statutory interpretation. We next apply those principles to address the interpretation and application first of § 893.587 and, given our conclusion that § 893.587 applies, then of § 893.13.

I. Standard of Review and Legal Principles

¶13 This court reviews de novo the legal question of whether a complaint states a claim on which relief can be granted. Data Key Partners v. Permira Advisers LLC , 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693. "Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom," in favor of the party against whom the motion is brought. Id. , ¶19 (quoted source omitted); Preston v. Meriter Hosp., Inc. , 2005 WI 122, ¶13, 284 Wis. 2d 264, 700 N.W.2d 158. This court does not add facts when analyzing the sufficiency of the complaint, nor does this court accept as true any legal conclusions it states.

Data Key Partners , 356 Wis. 2d 665, ¶19, 849 N.W.2d 693. To survive a motion to dismiss, a complaint "must allege facts that, if true, plausibly suggest a violation of applicable law." Id. , ¶21 ; see also WIS. STAT. § 802.02(1)(a) (complaint must show "that the pleader is entitled to relief.").

¶14 "[A]n otherwise sufficient claim will be dismissed if that claim is time barred." Pritzlaff v. Archdiocese of Milwaukee , 194 Wis. 2d 302, 312, 533 N.W.2d 780 (1995). A motion to dismiss for failure to meet a limitation statute "can be decided on the sufficiency of the facts alleged in the petition when combined with those facts asserted by the response when there is no conflict." Johnson v. Litscher , 2001 WI App 47, ¶4, 241 Wis. 2d 407, 625 N.W.2d 887.

¶15 "The interpretation and application of statutes present questions of law that we review independently." Brey v. State Farm Mut. Auto. Ins. Co. , 2022 WI 7, ¶9, 400 Wis. 2d 417, 970 N.W.2d 1. "[T]he 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. Circuit Ct. for Dane Cnty. , 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. When interpreting a statute, Wisconsin courts begin with the statutory language. Id. The words used by the legislature are to be given their "common, ordinary, and accepted meaning." Id. , ¶45. In addition, statutory language must be 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 unreasonable results." Id. , ¶46.

¶16 A review of statutory history is part of our analysis "because it is part of the context in which we interpret statutory terms." County of Dane v. LIRC , 2009 WI 9, ¶27, 315 Wis. 2d 293, 759 N.W.2d 571 (quoted source omitted); Brey , 400 Wis. 2d 417, ¶20, 970 N.W.2d 1.

¶17 "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno v. Milwaukee Cnty. , 2003 WI 28, ¶20, 260 Wis....

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