John Doe 1 v. Archdiocese of Milwaukee

Decision Date11 July 2007
Docket NumberNo. 2005AP1945.,2005AP1945.
Citation734 N.W.2d 827,2007 WI 95
PartiesJOHN DOE 1, Plaintiff-Appellant-Petitioner, v. ARCHDIOCESE OF MILWAUKEE, Defendant-Respondent, Alias Insurance Company # 1, Defendant. John Doe 2 and John Doe 3, Plaintiffs-Appellants-Petitioners, v. Archdiocese of Milwaukee, Defendant-Respondent. Charles Linneman, Plaintiff-Appellant-Petitioner, v. Archdiocese of Milwaukee, Defendant-Respondent, Franklyn Becker, Defendant.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners there were briefs by Jeffrey R. Anderson, St. Paul, MN, Marci A. Hamilton, Washington, PA, and James S. Smith, Brookfield, and oral argument by Marci A. Hamilton.

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

An amicus curiae brief was filed by Richard Jasperson and Richard Jasperson P.A., St. Paul, MN, and Matthew A. Biegert and Doar Drill, S.C., New Richmond, on behalf of the Leadership Council on Child Abuse & Interpersonal Violence.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This is a review of an unpublished decision of the court of appeals that affirmed the circuit court's order dismissing the complaints of John Doe 1, John Doe 2, John Doe 3, and Charles Linneman against the Archdiocese of Milwaukee (the Archdiocese).1 The court of appeals agreed with the circuit court that the claims against the Archdiocese for negligent supervision and fraud relating to the Roman Catholic priests' sexual molestation of children were barred by the statute of limitations. John Doe 1 v. Archdiocese of Milwaukee, No.2005AP1945, 296 Wis.2d 419, 722 N.W.2d 400, unpublished slip op., ¶ 1 (Wis.Ct.App. Aug. 29, 2006) (John Doe 1).

¶ 2 We conclude that the claims asserted against the Archdiocese for negligent supervision are barred by the statute of limitations because according to controlling precedent such claims are derivative and accrued as a matter of law by the time of the last incident of sexual assault. However, we also conclude that the claims of fraud for intentional misrepresentation are independent claims based on the Archdiocese's alleged knowledge of the priests' prior sexual molestation of children and the Archdiocese's intent to deceive children and their families. We further conclude that the date of the accrual of the fraud claims is "when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered" that the Archdiocese's alleged fraud was a cause of their injuries. John BBB Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 340, 565 N.W.2d 94 (1997) (BBB Doe). This determination cannot be resolved by a motion to dismiss the complaints. Therefore, we affirm the dismissal of the negligent supervision claims; we reverse the dismissal of the fraud claims; and we remand for further proceedings.

I. BACKGROUND2

¶ 3 This review arises from the consolidation of three lawsuits filed against the Archdiocese that was dismissed for failure to state a claim. In 2005, John Doe 1 and John Does 2 and 3 (the Doe plaintiffs), filed complaints that were nearly identical.3 The Doe plaintiffs, who are adults, allege that from 1973 to 1976, when they were children, a now-deceased Roman Catholic priest, Siegfried Widera, abused them sexually after he had been criminally convicted of sexually molesting another child and the Archdiocese knew of his conviction. It was after Widera's criminal conviction that the Archdiocese moved Widera from a parish in Port Washington, Wisconsin, to St. Andrew's Parish in Delavan, Wisconsin, where Widera molested the Doe plaintiffs.

¶ 4 The Archdiocese also was informed that Widera sexually molested an altar boy at St. Andrew's Parish and confronted Widera, who admitted he had made "a slip." The Archdiocese's notes made contemporaneously with this assault are attached to the complaint. They reveal that it would "try to keep the lid on the thing, so no police record would be made" and also that it knew the mother of the boy "feared reprisals from Church if she would go to police." Subsequently, in 1976, the Archdiocese transferred Widera to California. The Archdiocese told Widera to tell people in Delavan that he was going on vacation rather than telling the truth. Widera molested numerous boys after his transfer to California.

¶ 5 The Doe plaintiffs claim negligent supervision because the "Defendant Archdiocese knew or should reasonabl[y] have known of Widera's dangerous and exploitative propensities as a child sexual exploiter and/or as an unfit agent and despite such knowledge, Defendant Archdiocese negligently retained and failed to provide reasonable supervision of Widera." The Doe plaintiffs also claim fraud because the Archdiocese "knew that Siegfried Widera had a history of sexually molesting children and that he was a danger to children," but notwithstanding that knowledge, the Archdiocese: (1) affirmatively represented that it "did not know that Siegfried Widera had a history of molesting children" and "did not know that Siegfried Widera was a danger to children"; and (2) failed to disclose its knowledge of Widera's history of sexually molesting children.

¶ 6 The Doe plaintiffs contend they did not discover, nor in the exercise of reasonable diligence should they have discovered, that the Archdiocese negligently supervised Widera or that the Archdiocese knew of Widera's history of sexually abusing children until 2004. It was in 2004 that the Doe plaintiffs allege they discovered that Widera had been convicted of sexually molesting a minor boy prior to Widera's abuse of them. The Doe plaintiffs also contend that they did not discover, nor in the exercise of reasonable diligence should they have discovered, that the Archdiocese's fraud was a cause of their injuries until they learned of Widera's conviction.

¶ 7 In addition, in 2005, Charles Linneman, an adult, filed a complaint alleging that in approximately 1982 another Roman Catholic priest, Franklyn W. Becker, abused him sexually while he was a child.4 Becker and Linneman became acquainted while Linneman was an altar boy at St. Joseph Church in Lyons, Wisconsin. Becker was subsequently moved to a parish in Milwaukee, Wisconsin, but continued to maintain contact with Linneman. Linneman was sexually abused in the priest's living quarters when he stayed overnight at one of the Archdiocese's churches in Milwaukee in order to serve as an altar boy the next day.

¶ 8 Similar to the Doe plaintiffs' complaints, Linneman claims that the "Archdiocese knew that Franklyn Becker had a history of sexually molesting children and that he was a danger to children" before he molested Linneman in 1982. Linneman sued the Archdiocese for negligent supervision and fraud.5 Linneman also claims he did not know the Archdiocese defrauded him until recently and did not discover, nor in the exercise of reasonable diligence should he have discovered, that the Archdiocese was a cause of his injuries until recently.

¶ 9 The Archdiocese moved to dismiss the Doe plaintiffs' complaints asserting, among other things, that the claims were barred by the applicable statute of limitations. The circuit court agreed that the statute of limitations barred the Doe plaintiffs' claims because the last sexual assault occurred 29 years before they brought suit. Linneman subsequently stipulated to the circuit court that his claims were "substantially identical" to the Doe plaintiffs' claims and had similar statute of limitations problems because his last sexual contact with Becker occurred 23 years before his lawsuit was filed. He agreed to the consolidation and dismissal of his claims, but he preserved his right to appeal.

¶ 10 All the plaintiffs appealed and the court of appeals affirmed the dismissal of the complaints against the Archdiocese, concluding that the claims were barred by the statute of limitations. John Doe 1, No.2005AP1945, unpublished slip op., ¶ 1. The court of appeals concluded that the negligent supervision claims were controlled by BBB Doe, which concluded that victims of non-incestuous sexual assault knew or should have known they were injured when they were assaulted, and therefore, the victims had "a duty to inquire into the injury that result[ed] from [the] tortious activity." John Doe 1, No.2005AP1945, unpublished slip op., ¶¶ 10-11 (quoting BBB Doe, 211 Wis.2d at 340, 565 N.W.2d 94). As such, "the discovery rule did not save the victims' claims against the priests because the statute of limitations began to run no later than the date of the last sexual assault." Id., ¶ 11 (citing BBB Doe, 211 Wis.2d at 344-45, 565 N.W.2d 94; Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 316-17, 533 N.W.2d 780 (1995)).

¶ 11 The court of appeals also concluded that the fraud claims were barred by Wis. Stat. § 893.93(1)(b) (2005-06)6 because the statute of limitations began to run when the facts constituting fraud could have been discovered upon diligent inquiry and under BBB Doe, "the appellants are deemed, as a matter of law, to have discovered their injuries no later than the last sexual assault. . . . Accordingly, they had a duty to seek out the cause of their injuries . . . at that time." John Doe 1, No.2005AP1945, unpublished slip op., ¶¶ 13-15. All the plaintiffs petitioned for supreme court review, which we granted.

II. DISCUSSION
A. Standard of Review

¶ 12 We independently review a dismissal for failure to state a claim as a question of law. Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶ 10, 283 Wis.2d 555, 699 N.W.2d 205; John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, ¶ 19, 284 Wis.2d 307, 700 N.W.2d 180 (John Doe 67C). "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." BBB Doe, 211 Wis.2d at 331, 565 N.W.2d 94. The reviewing court liberally construes the pleadings and accepts the facts as set forth in the...

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