Hornback v. Archdiocese of Milwaukee

• Decision Date: 16 July 2008
• Docket Number: No. 2006AP291.,2006AP291.
• Citation: 752 N.W.2d 862,2008 WI 98
• Parties: Kenneth W. HORNBACK, Dennis L. Bolton, Ronald W. Kuhl, David W. Schaeffer and Glenn M. Bonn, Plaintiffs-Appellants-Petitioners, v. ARCHDIOCESE OF MILWAUKEE and Diocese of Madison, Defendants-Respondents, Commercial Union Insurance Company, Intervening Defendant.
• Court: Wisconsin Supreme Court

752 N.W.2d 862

2008 WI 98

Kenneth W. HORNBACK, Dennis L. Bolton, Ronald W. Kuhl, David W. Schaeffer and Glenn M. Bonn, Plaintiffs-Appellants-Petitioners, v. ARCHDIOCESE OF MILWAUKEE and Diocese of Madison, Defendants-Respondents Commercial Union Insurance Company, Intervening Defendant.

No. 2006AP291.

Supreme Court of Wisconsin.

Argued March 13, 2008.

Decided July 16, 2008.

For the plaintiffs-appellants-petitioners there were briefs filed by James S. Smith, Wendy G. Gunderson, and Smith, Gunderson & Rowen, S.C., Brookfield, and J. Andrew White and J. Andrew White & Associates, Louisville, Ky., and oral argument by Marci A. Hamilton, appearing Pro Hac Vice.

For the defendant-respondent, Archdiocese of Milwaukee, there was a brief by John A. Rothstein, David P. Muth, and Quarles & Brady LLP, Milwaukee, and oral argument by John A. Rothstein.

For the defendant-respondent, Diocese of Madison, there was a brief by Donald L. Heaney, Kenneth B. Axe, Carrie Benedon, and Lathrop & Clark LLP, Madison, and oral argument by Donald L. Heaney.

¶ 1 LOUIS B. BUTLER, JR., J

Kenneth W. Hornback, Dennis L. Bolton, Ronald W. Kuhl, David W. Schaeffer and Glenn M. Bonn (the plaintiffs) seek review of a court of appeals decision¹ that affirmed the circuit court's dismissal of the plaintiffs' complaint against the Archdiocese of Milwaukee (the Archdiocese) and the Diocese² of Madison (the Diocese), along with their insurance companies.

¶ 2 The plaintiffs' complaint against the Archdiocese and the Diocese alleged that the plaintiffs were sexually abused by Gary R. Kazmarek from 1968 to 1973, during the time when Kazmarek taught at Our Mother of Sorrows School in Louisville, Kentucky. Kazmarek had previously taught at Catholic schools in Milwaukee and Middleton run by the Archdiocese and Diocese, and the plaintiffs claimed the Archdiocese and the Diocese "knew or should have known of Kazmarek's propensity for sexually abusing children," and were negligent for failing to take certain steps to prevent Kazmarek's future sexual abuse. In oral argument to this court, plaintiffs specified that their claims included a negligent failure to warn unforeseeable third parties of Kazmarek's propensity for sexual abuse.

¶ 3 A significant difference between the plaintiffs' claims against the Archdiocese and the Diocese is that the plaintiffs' complaint alleges that when the sexual abuse of students in Milwaukee was brought to the attention of the Archdiocese of Milwaukee, the Archdiocese promised two dozen of the victims' parents "that Kazmarek would be sent to a treatment center and that he would never have contact with children again," and "pleaded with parents to not report Kazmarek's crimes to the police." However, the complaint alleges, instead of subsequently referring Kazmarek to the police or alerting others about the abuse, the Archdiocese simply told Kazmarek "to leave Milwaukee quietly." Similar claims were not alleged as to the Diocese.

¶ 4 In a response to motions to dismiss brought by the Archdiocese and Diocese, the circuit court, the Honorable Francis T. Wasielewski presiding, dismissed the complaint as to both. The court of appeals affirmed the circuit court order.

¶ 5 This court is equally divided on whether to affirm or reverse the decision of the court of appeals' dismissing the plaintiffs' complaint against the Archdiocese of Milwaukee. Justice N. Patrick Crooks, Justice Patience D. Roggensack, and Justice Annette Kingsland Ziegler would affirm; Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice Louis B. Butler would reverse.³ Consequently, we affirm the court of appeals' decision to affirm the circuit court's dismissal of the plaintiffs' claims against the Archdiocese of Milwaukee, without further analysis of that issue.

¶ 6 In addition, we do not reach the statute of limitations question in this case regarding the dismissal of claims against the Diocese of Madison because we conclude that the plaintiffs have failed to articulate a claim upon which relief could be granted, rendering our consideration of the statute of limitations issue unnecessary. We further conclude that the plaintiffs have not alleged an actionable claim for negligence against the Diocese under which relief could be granted under Wisconsin law. We finally conclude that even if a viable negligence claim had been made, recovery would nonetheless be precluded on the public policy ground that allowing recovery would send this court down a slippery slope with no sensible or just stopping point. We therefore affirm the decision of the court of appeals, on different grounds.

I

¶ 7 On October 3, 2005, the plaintiffs filed a complaint against the Archdiocese of Milwaukee, the Diocese of Madison, and their insurance companies. In the complaint, each of the plaintiffs alleges being a child victim of sexual abuse at some point between the years of 1968 and 1973 at the hands of Gary Kazmarek, who was a teacher at the Catholic school the plaintiffs attended in Louisville, Kentucky, Our Mother of Sorrows. The complaint describes an ongoing pattern of sexual abuse of children by Kazmarek over the years. The plaintiffs allege that prior to 1964, he had engaged in inappropriate sexual conduct while at a Catholic seminary; that between 1964 and 1966, he abused more than two dozen children while a teacher at St. John de Nepomuc School in the Milwaukee Archdiocese; that he subsequently admitted to sexually abusing up to ten more children at St. Bernard School in the Madison Diocese; and that the pattern of sexual abuse continued while he was a teacher at Our Mother of Sorrows for approximately five years, beginning in 1967.

¶ 8 The complaint alleges that the Diocese "knew or should have known of Kazmarek's propensity for sexually abusing children and, despite this knowledge, did not refer Kazmarek to the police or take any other action to prevent Kazmarek from continuing his pattern of sexually abusing children." The complaint further alleges that the failure of the Diocese to refer Kazmarek to the police and/or to take "other action to prevent Kazmarek's continuation of his pattern of sexually abusing children"⁴ constitutes negligence, and that the Diocese's negligent conduct was a substantial factor in causing Kazmarek's sexual abuse of and resulting injuries to the plaintiffs. The complaint adds that discovery of Kazmarek's sexual abuse of children in Wisconsin and of the Diocese's negligent conduct did not occur until October 2002.

¶ 9 The Archdiocese filed a motion to dismiss parallel claims against it on October 21, 2005, arguing that the plaintiffs' claims were barred by the statute of limitations. In the alternative, the Archdiocese argued that public policy considerations regarding the delay in bringing this case preclude the liability for the plaintiffs' claims, maintaining that such public policy concerns "strongly militate against permitting 32 year old claims based on alleged assaults, where most other witnesses and relevant evidence are dead." On October 27, 2005, the Diocese also filed a motion to dismiss, adopting the Archdiocese's memorandum in support of dismissal.

¶ 10 The plaintiffs responded that the motions to dismiss should be denied because the plaintiffs' claims were not barred by the statute of limitations and because public policy favors litigation of the issues presented in the case rather than encouraging the concealment of information by employers about sexual abusers in their midst.

¶ 11 The circuit court held a motion hearing on December 19, 2005. In a ruling based on statute of limitations grounds, the court granted the defendants' motions to dismiss, and an order dismissing the case was filed on January 4, 2006.

¶ 12 The plaintiffs appealed, and on November 28, 2006, the court of appeals affirmed the circuit court's order, also confining its discussion to the statute of limitations issue. Hornback v. Archdiocese of Milwaukee, No.2006AP291, 298 Wis.2d 248, 726 N.W.2d 357, unpublished slip op. (2006). Review was granted on October 11, 2007.

II

¶ 13 "A motion to dismiss for failure to state a claim `tests the legal sufficiency of the complaint.'" John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, ¶19, 284 Wis.2d 307, 700 N.W.2d 180. We review a circuit court's dismissal of a complaint for failure to state a claim de novo. Id. Without drawing unreasonable interferences from the pleadings, we will accept as true the facts pled in the complaint for purposes of review. See id., ¶¶ 19-20.

¶ 14 Whether Wisconsin courts recognize an alleged duty and how far the scope of such a duty extends may be questions of law determined judicially rather than questions of fact. Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 23 n. 12, 291 Wis.2d 283, 717 N.W.2d 17.

¶ 15 Whether a defendant failed to exercise ordinary care and is negligent as a matter of law ("`i.e., based on the facts presented, no properly instructed, reasonable jury could find the defendant [exercised] ordinary care'") is a question of law. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 60, 236 Wis.2d 435, 613 N.W.2d 142 (citations omitted). As with our review of the legal sufficiency of a complaint, the determination of whether public policy considerations preclude liability in a negligence case is also a question of law that this court determines without deference to any other court. See Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis.2d 781, 611 N.W.2d 906.

III

¶ 16 In Wisconsin, the sufficiency of a negligence claim depends on whether a complaint alleges facts adequately establishing the following four required elements: "(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the injury." Gritzner, 235 Wis.2d 781, ¶ 19, 611...