John Doe v. Archdiocese of Milwaukee

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2007 WI 95 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2005AP1945 John 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. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: ___ Wis. 2d ___, 722 N.W.2d 400 (Ct. App. 2006-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: CONCUR/DISSENT: DISSENTED: July 11, 2007 April 24, 2007 Circuit Milwaukee Michael D. Guolee ABRAHAMSON, C.J., concurs in part and dissents in part (opinion filed). BRADLEY, J., joins the concurrence/dissent. NOT PARTICIPATING: ATTORNEYS: 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. 2 2007 WI 95 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP1945 (L.C. No. 2005CV1351, 2005CV1977, 2005CV4902) STATE OF WISCONSIN : IN SUPREME COURT John Doe 1, Plaintiff-Appellant-Petitioner, v. Archdiocese of Milwaukee, Defendant-Respondent, Alias Insurance Company #1, Defendant. ----------------------------------------------- FILED John Doe 2 and John Doe 3, JUL 11, 2007 Plaintiffs-Appellants-Petitioners, David R. Schanker Clerk of Supreme Court v. Archdiocese of Milwaukee, Defendant-Respondent. ----------------------------------------------Charles Linneman, Plaintiff-Appellant-Petitioner, v. Archdiocese of Milwaukee, Defendant-Respondent, Franklyn Becker, Defendant. REVIEW of a decision of the Court of Appeals. Affirmed in part; reversed in part and remanded to the circuit court. ¶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, Archdiocese John of Doe 3, Milwaukee and Charles Linneman Archdiocese).1 (the against The 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, 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 1 assault. However, we also Judge Michael D. Guolee, Milwaukee County Circuit Court, presided. 2 No. conclude that the misrepresentation Archdiocese's claims are alleged of fraud independent knowledge of for claims the intentional based priests' 2005AP1945 on prior the sexual molestation of children and the Archdiocese's intent to deceive children and their families. of the accrual of the We further conclude that the date fraud claims is "when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered" cause of their that the Archdiocese's injuries. John BBB alleged Doe v. fraud was Archdiocese a 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 of three claims; and we remand for further proceedings. I. ¶3 This review BACKGROUND2 arises from the consolidation 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 2 The facts set forth in the complaints and all reasonable inferences therefrom are taken as true for purposes of our review of the motion to dismiss. John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 320, 565 N.W.2d 94 (1997) (citing Watts v. Watts, 137 Wis. 2d 506, 512, 405 N.W.2d 305 (1987)) (BBB Doe). 3 John Doe 2 and John Doe 3 jointly filed one complaint against the Archdiocese. 3 No. 1973 to 1976, when they were children, a 2005AP1945 now-deceased Roman Catholic priest, Siegfried Widera, abused them sexually after he had been criminally convicted of sexually molesting child and the Archdiocese knew of his conviction. another 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 molested The Archdiocese also was informed that Widera sexually an altar boy at St. Andrew's Parish Widera, who admitted he had made "a slip." and confronted 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 The Doe plaintiffs claim negligent supervision because "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 4 No. 2005AP1945 Siegfried Widera had a history of sexually molesting children and that he was a danger to children," but notwithstanding that knowledge, the Archdiocese: it "did not know that (1) affirmatively represented 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 in the The Doe plaintiffs contend they did not discover, nor 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 4 moved to a parish The complaint states that Charles Linneman approximately 12 years old at the time of the abuse. 5 in was No. but continued to maintain 2005AP1945 Milwaukee, Wisconsin, 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. court agreed that the statute of limitations The circuit barred the Doe plaintiffs' claims because the last sexual assault occurred 29 years before stipulated to they brought suit. the circuit court Linneman that his subsequently 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 5 Charles Linneman also sued Franklyn W. Becker for "fiduciary fraud"; however, the appellants do not assert this claim on appeal. 6 No. filed. 2005AP1945 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 Archdiocese, dismissal concluding the that statute of limitations. slip op., ¶1. of the complaints claims were against barred by the the John Doe 1, No. 2005AP1945, unpublished 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 John Doe 1, No. that result[ed] from [the] tortious activity." 2005AP1945, unpublished slip op., ¶¶10-11 (quoting BBB Doe, 211 Wis. 2d at 340). victims' claims As such, "the discovery rule did not save the 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; Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 31617, 533 N.W.2d 780 (1995)). ¶11 claims The court of appeals also concluded that the fraud 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 6 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 7 No. 2005AP1945 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." Doe 1, No. 2005AP1945, unpublished slip op., ¶¶13-15. plaintiffs petitioned for supreme court II. review, John All the which we DISCUSSION failure to granted. A. Standard of Review ¶12 We independently review a dismissal state a claim as a question of law. for 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. The reviewing court liberally construes the pleadings and accepts the facts as set forth in the complaint, as well as all reasonable inferences from those facts. Wis. 2d at 311. Kaloti, 283 Wis. 2d 555, ¶11; Pritzlaff, 194 However, the court is "not required to assume as true legal conclusions pled by the plaintiffs." Wis. 2d at 331. BBB Doe, 211 "Dismissal of a claim is improper if there are any conditions under which the plaintiffs could recover." ¶13 In order to decide whether we should Id. grant the Archdiocese's motion to dismiss, we must determine whether the plaintiffs' claims for negligent supervision and fraud are barred by the applicable statute of limitations. As such, we must or, determine "when the plaintiffs 8 discovered in the No. 2005AP1945 exercise of reasonable diligence, should have discovered that they were injured, and the cause of their injury." Id. at 340. Reasonable diligence is ordinarily a question of fact for the fact-finder. at 341. reasonable inferences that undisputed, whether diligence Id. in question of a can In his or when drawn has her addition, reasonable is a question of law." ¶14 be plaintiff discovering law. "However, the facts and from them are exercised cause whether of an reasonable action is inference a is Id. (citations omitted).7 In our analysis of this case, we may consider whether the complaints state claims for fraud due to the failure to disclose, which turns on whether the Archdiocese had a duty to disclose the history of the priests' sexual abuse. "Whether a duty we exists is also independently . . . ." B. a question of law that review Kaloti, 283 Wis. 2d 555, ¶10. Motion to Dismiss ¶15 whether "A threshold question when reviewing a complaint is the complaint has been timely filed, because an otherwise sufficient claim will be dismissed if that claim is time barred." Pritzlaff, 194 Wis. 2d at 312. In general, the controlling statutory limitation period is the one in effect when the Protective claim for relief Co., 172 accrued. Wis. 2d 141, 7 493 Betthauser N.W.2d 40 v. Med. (1992). Therefore, whether a reasonable person knew or should have known of the Archdiocese's alleged fraud more than six years before the complaints were filed may be a question of law depending on the reasonable inferences from undisputed facts. See BBB Doe, 211 Wis. 2d at 341. 9 No. 2005AP1945 Substantive "legislation is presumptively prospective unless the statutory statute language applies clearly [indicates] retroactively." Id. at an 147 intent that (quoting the United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis. 2d 305, 319, 313 N.W.2d 833 (1982)). remedial, rather than However, if "a statute is procedural or substantive, given retroactive application." Id. the statute is generally Statutes of limitations are generally viewed as substantive because they can extinguish otherwise valid claims, and therefore, the statute of limitations that applies is the one in effect when the claim for relief accrued.8 Id. at 149. 1. Negligent supervision ¶16 A claim for negligent supervision of an employee requires a plaintiff to plead and prove all of the following: (1) the employer had a duty of care owed to the plaintiff; (2) the employer breached its duty; (3) a wrongful act or omission of an employee was a cause-in-fact of the plaintiff's injury; and (4) an act or omission of the employer was a cause-in-fact of the wrongful act of the employee. John Doe 67C, 284 Wis. 2d 307, ¶43 (citations omitted). 8 Black's Law Dictionary defines "accrue" as follows: "To come into existence as an enforceable claim or right." Black's Law Dictionary 22 (8th ed. 2004). We have explained that before a claim for relief can accrue, there must exist "a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it." Meracle v. Children's Serv. Soc'y of Wis., 149 Wis. 2d 19, 26, 437 N.W.2d 532 (1989) (quoting Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906)). 10 No. ¶17 2005AP1945 In the case before us, the last sexual assault of the Doe plaintiffs occurred no later than 1976. Therefore, if their claim for negligent supervision accrued then, the statute of limitations would be three years from that date in 1976. Stat. § 893.205(1) (1975-76). Wis. However, because all of the Doe plaintiffs were less than 18 years of age at the time their claims for relief accrued, the statute of limitations would have been tolled for one year after each Doe claimant reached the age of 18. Wis. Stat. § 893.33(1) (1975-76). ¶18 In 1979, ch. 893 was repealed and recreated in its entirety and Wis. Stat. § 893.33 was revamped and renumbered as Wis. Stat. § 893.16. § 28, ch. 323, Laws of 1979. Therefore, if the claim for negligent supervision accrued in 1982, when Linneman alleges he was last assaulted by Becker, the statute of limitations would still be three years, Wis. Stat. § 893.54(1) (1981-82), but it would be tolled for two years after Linneman reached the age of 18. Wis. Stat. § 893.16.9 The current statute of limitations for negligence is still three years from the date when the claim accrued. § 893.54(1). Therefore, unless the claims for negligent supervision accrued within three years of barred. ¶19 when the complaints were filed in 2005, they are Accordingly, we must determine when the claims accrued. Similar to this case, in BBB Doe, all the plaintiffs' claims against the Archdiocese included a claim for negligence 9 The current Wis. Stat. § 893.16 applies to claims for relief that accrued after July 1, 1980. See Wis. Stat. § 893.16(5)(c). 11 No. in the training, placement and supervision of 2005AP1945 priests allegedly sexually assaulted them while they were minors. Doe, 211 Wis. 2d at 324. In determining when the who BBB claims accrued, we first reviewed the policy considerations underlying the statute of limitations and noted: On the one hand, we are concerned with allowing tort victims a fair opportunity to enforce legitimate claims against wrongdoers. On the other hand, we are concerned with protecting defendants from having to defend against stale claims, where so much time has passed between the allegedly tortious act and the filing of the claim that witnesses and relevant evidence may be unavailable. Id. at 334. ¶20 With these policy considerations in mind, we reviewed the development of the discovery rule in Wisconsin. 38. Id. at 334- We noted that the discovery rule was first adopted in Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983). There we held that "all tort actions other than those already governed by a legislatively created discovery rule . . . accrue on the date the injury is discovered or with reasonable diligence first." should Id. [have been] discovered, whichever occurs After Hansen, we decided that the discovery rule also applied to discovery of the cause of the injury. BBB Doe, 211 Wis. 2d at 335 (citing Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411, 388 N.W.2d 140 (1986)). ¶21 discovery In BBB rule Doe, was from sexual assault. we applied reviewed to opinions negligence in which allegations the arising Id. at 335-38 (citing Hammer v. Hammer, 12 No. 2005AP1945 142 Wis. 2d 257, 267, 418 N.W.2d 23 (Ct. App. 1987);10 Pritzlaff, 194 Wis. 2d at 319). In Pritzlaff, the plaintiff alleged that she was coerced into sexual relations with a priest and filed claims against the priest and also against the Archdiocese for negligent hiring, retaining, training Pritzlaff, 194 Wis. 2d at 306-07. and supervision. Twenty-seven years had passed since the end of the alleged relationship between the plaintiff and the priest, and therefore, one of the issues was whether the Id. at statute of limitations had been tolled during that time. 312. We explained that the discovery rule "tolls the statute of limitations until the plaintiff discovers or with reasonable diligence should have discovered that he or she has suffered actual damage due to wrongs committed by a particular, identified person." Id. at 315-16 (citations omitted). Pritzlaff the knew both identity of the tortfeasor Since and the injurious conduct, we determined that she could have alleged her complete cause of action by the time the relationship ended, and therefore, the claims were time barred. ¶22 claims In BBB Doe, against the one or more Archdiocese Id. at 316-17. of "for the plaintiffs negligent alleged training, placement, and supervision of the priest, liability under the doctrine of apparent authority, and for breach of duty under Wis. Stat. § 48.981 [(1995-96)] to report abuse and mitigate harm." BBB Doe, 211 Wis. 2d at 322. 10 During our review, we In Hammer v. Hammer, 142 Wis. 2d 257, 267, 418 N.W.2d 23 (Ct. App. 1987), the court of appeals applied the discovery rule to claims of incest. 13 No. 2005AP1945 explained a plaintiff's duty to conduct due diligence under the discovery rule: Plaintiffs have a duty to inquire into the injury that results from tortious activity. The measure of diligence required of a plaintiff to discover the elements of his or her cause of action is such diligence as the great majority of persons would use in the same or similar circumstances. Plaintiffs may not ignore means of information reasonably available to them, but must in good faith apply their attention to those particulars which may be inferred to be within their reach. . . . If the plaintiff has information providing the basis for an objective belief as to his or her injury and its cause, he or she has discovered the injury and its cause. Id. at 340-41 (citations omitted). Applying the discovery rule in that case, we concluded as a matter of law that each of the five "plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered" their injury and the cause thereof at least by the time of the last incident of assault. Id. at 342. actionable We noted that "[a]s we recognized in Pritzlaff, injury flows immediately intentional sexual touching. from a nonconsensual, While the plaintiffs may not have known the extent of their injuries at the time of the sexual assaults, in Wisconsin accrual of an action is not dependent upon knowing the full extent of one's injuries." (citing Pritzlaff, 194 Wis. 2d at 317). Id. at 343-44 Accordingly, we decided "as a matter of law that the claims of these plaintiffs accrued by the time of the last incident of sexual assault." Id. at 346. ¶23 We concluded that the plaintiffs' claims "accrued by the time of the last incident of sexual assault," id., even 14 No. 2005AP1945 though the plaintiffs claimed that they repressed their memories of the sexual abuse. Because their recollections were delayed, they were unable to discover the identity of the abuser and the fact of the abuse until their memory had returned. Id. at 357. We reasoned that: [I]t would be contrary to public policy, and would defeat the purposes of limitations statutes, to allow claims of repressed memory to invoke the discovery rule and to indefinitely toll the statutory limitations for these plaintiffs. We hold that a claim of repressed memory of past sexual abuse does not delay the accrual of a cause of action for nonincestuous sexual assault, regardless of the victim's minority and the position of trust occupied by the alleged perpetrator. Id. at 364. ¶24 While our discussion in BBB Doe focused on the direct claims against the priests, we extended our analysis to the claims of negligent supervision against the Archdiocese, which we held were derivative claims.11 11 We explained that we were not A derivative claim is one "that derives from, grows out of, or results from an earlier or fundamental state or condition." Webster's Third New International Dictionary Unabridged 608 (1961 ed.). For example, a derivative action is a suit by a shareholder to enforce a corporate cause of action based on a right of the corporation. Wis. Stat. § 180.0740(2). Accordingly, a claim against an employer for negligent supervision of an employee is derivative of an employee's wrongful act that causes injury to another, which wrongful act is alleged to have been caused by the employer's negligence. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998). A claim for negligent supervision by an employer contrasts with a claim of fraud by an employer, which is not a derivative claim. The contrast is demonstrated by the elements of the fraud claim. For example, proof of a claim based on fraud does not require proof of a wrong by an employee that causes injury to another. Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶12, 283 Wis. 2d 555, 699 N.W.2d 205. 15 No. addressing the plaintiffs' statute claims of based limitations on negligent 2005AP1945 relative to employment the theories because "[p]laintiffs' derivative causes of action against the Archdiocese and the churches accrued at the same time that the underlying intentional tort claims accrued, and similarly would be barred by the statute of limitations." Id. at 366 (citing Pritzlaff, 194 Wis. 2d at 312). ¶25 We note that in Pritzlaff we decided that the discovery rule did not save the plaintiff's claims against the priest and that the claim for negligent supervision accrued against the Archdiocese on the same date as those against the priest. Pritzlaff, 194 Wis. 2d at 312. decision in Pritzlaff, we assumed, At the time of our without deciding, that a claim for negligent hiring, training and supervision existed in Wisconsin. Id. at 325-26. We looked to opinions from other jurisdictions for the elements of such a claim. Id. at 326. We reasoned that if such a claim existed in Wisconsin, Pritzlaff would have to prove that the Archdiocese was negligent in hiring or retaining the priest because he was unfit for the role of a priest. Id. United States We explained that the First Amendment of the Constitution prevents Wisconsin courts from determining what makes a person competent to serve as a Catholic priest. Id. Therefore, we concluded that even if the plaintiff's negligent supervision claims were not time-barred, the claims were prohibited by the First Amendment to the United States Constitution. Id. 16 No. ¶26 2005AP1945 In BBB Doe, we relied on Pritzlaff for its discussion of the discovery rule as applied to claims of sexual assault. BBB Doe, 211 Wis. 3d at 336-38. We then concluded that because the negligent supervision claims were derivative of the claims against the priests for sexual assault, they were also barred by the statute of limitations. ¶27 Id. at 366. In L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.3d 434 (1997), we also addressed a claim for negligent supervision of a priest that was brought against the Diocese of Madison. We assumed in that a claim for negligent supervision existed Id. at 685. Wisconsin, as we did in Pritzlaff. However, we refused to reach that claim because we concluded that the case involved sexual contact between two consenting adults, therefore, a priest's vow of celibacy could be involved. 695-96. and Id. at We reasoned that a civil court "has no authority to determine or enforce standards of religious conduct and duty" and held that the First Amendment precluded L.L.N.'s claim for negligent supervision. ¶28 First Id. at 696. In the case before us, we do not address whether the Amendment prohibits the negligent supervision claims because the issue was not brought to us. explicitly stated in its brief that "there or fraud The Archdiocese are no First Amendment grounds or issues presented on this record or appeal." The Archdiocese about First maintained Amendment the same defenses position when questioned during oral argument. Nevertheless, we are not unmindful of the conclusions we reached 17 No. in BBB Doe, Clauder and Pritzlaff relative 2005AP1945 to claims of negligent supervision. ¶29 and The plaintiffs herein contend that BBB Doe, Clauder Pritzlaff negligent are not employment decisions. controlling and because supervision has the law evolved regarding since those The plaintiffs also argue that an employer's torts are not derivative, but independent of a plaintiff's underlying claim against an employee who caused the injury. They rely on Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998). ¶30 In Miller, we recognized that in Wisconsin a claim for negligent supervision is a "valid claim." Id. However, a review of our jurisprudence prior to and subsequent to Miller demonstrates that Miller in no way undermines or overrules our holdings in BBB Doe, Clauder or Pritzlaff. ¶31 Prior to Miller, we had not decided whether a common law claim against an employer for negligent hiring, training or supervision courts. of an employee Id. at 259. could be maintained in Wisconsin Our decision in Miller does not mention BBB Doe, nor does it opine whether the tort of negligent hiring, training or supervision employee is not, against an employee. employer, there Id. at 263. training must be or conduct supervision wrongful of a However, we did say in Miller that in order for a hiring, wrongful or employee. negligent underlying is, claim of the an derivative claim of of to conduct the arise by an And finally, since the employee in 18 No. 2005AP1945 Miller was not a priest employed by an archdiocese, the First Amendment was not mentioned. ¶32 claim We also recognize that there are cases describing the of negligent supervision as a claim that focuses on conduct that is separate from the underlying wrongful act of the employer. See, e.g., Doyle v. Engelke, 219 Wis. 2d 277, 291 n.6, 580 N.W.2d 245 (1998) ("While negligent supervision does require an underlying wrong to be committed by [an] employee as an element, the tort actually focuses on the tortious, i.e., negligent, conduct of the employer."); Clauder, 209 Wis. 2d at 698-99 n.21 (reasoning that "liability does not result solely because of the relationship of the employer and employee, but instead because of the independent negligence of the employer"). However, Doyle and Clauder negligent supervision was or were was not not a determining derivative whether claim for purposes of determining whether the statute of limitations bars the action. ¶33 insurer For example, in Doyle, we were deciding whether an had a duty to negligent supervision. defend its insured against claims Doyle, 219 Wis. 2d at 291 n.6. of We were explaining that the insurer's argument that it did not have to defend the claim on vicarious liability grounds was not persuasive because the claim for negligent supervision was not a claim based on vicarious liability. Id. at 291-92. We also said that while the intentional acts exclusion in the policy may exempt the insurer from defending the individual employees for what was characterized as intentional 19 conduct, the tort of No. 2005AP1945 negligent supervision focused on the negligence of the employer. Id. at 291. As with Miller, in Doyle, we did not mention BBB Doe, did and we not discuss whether a claim of negligent supervision was or was not derivative of the underlying wrong of the employee. ¶34 In Clauder, the language to which the plaintiffs refer arose when we were explaining that a tort claim for negligent supervision was distinct from a tort claim for vicarious liability because vicarious liability is based on principles of agency that are implicated in claims of negligent Clauder, 209 Wis. 2d at 698-99 n.21. supervision. ¶35 not Clauder was released on May 23, 1997 and BBB Doe was released one argument month that proposition later Clauder that a on June 27, is claim 1997. persuasive of negligent Therefore, authority supervision for is any the not a derivative claim as we said it was in BBB Doe is unavailing. ¶36 Accordingly, we conclude that BBB Doe and Pritzlaff control the outcome of the claims for negligent supervision that are before us. that the They are controlling precedent that have decided claims of negligent supervision made here are derivative of the underlying sexual molestations by the priests. As such, those claims accrued, as a matter of law, by the time of the last incident of sexual assault. For the Does, this would be no later than 1976 and for Linneman, it would be no later than 1982. As all claims for negligent supervision accrued at least 23 years before the complaints were filed, the tolling periods due to the plaintiffs' 20 minorities are of No. insufficient length to save them. 2005AP1945 Furthermore, even though the plaintiffs contend that their injuries and the cause thereof were not discovered until recently due to psychological coping mechanisms, the statute of limitations is not tolled based on claims of repressed memories. BBB Doe, 211 Wis. 2d at 357. Therefore, the claims for negligent supervision are barred by the statute of limitations for negligence, as applied in prior controlling precedent. 2. Fraud ¶37 The statute of limitations for an action based on fraud is six years, regardless of whether the claim accrued in the mid-1970s or any time thereafter. Wis. Stat. § 893.93(1)(b); see, e.g., Wis. Stat. § 893.19(1) (1973-74). As with the statute of limitations for negligent supervision, this statute would be tolled for one or two years after the person who brings occurred the during claim the reaches minority the of age the § 893.33 (1975-76); Wis. Stat. § 893.16. of 18, claimant. if the injury Wis. Stat. Based on this statute of limitations, unless the claims for fraud accrued within six years of when the complaints were filed in 2005, the claims are barred. Accordingly, we must examine when the claims for fraud accrued. However, before we analyze claim accrual for fraud, we decide whether the plaintiffs sufficiently allege all of the elements of a claim based on fraud. a. Fraud allegations ¶38 A claim for intentional proof that: 21 misrepresentation requires No. 2005AP1945 (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment. Kaloti, 293 Wis. 2d 555, ¶12.12 The allegations of fraud in the complaints that are before us are of two types: (1) alleged affirmative not representations that the priests did have a history of molesting children and that they were not a danger to children; and (2) alleged failures to disclose the material fact that each children. priest had a history of sexual molestation of Either an affirmative representation or a failure to disclose, when there is a duty to disclose, can support a claim of intentional misrepresentation. ¶39 Id., ¶13. We note that Wis. Stat. §§ 802.02 and 802.03 set forth the requirements of pleadings generally and pleadings for claims of fraud. Section 802.02(1)(a) requires "[a] short and plain statement of the claim." However, § 802.03(2), pertaining to 12 We have concluded that a party to a business transaction has a duty to disclose a fact when: (1) the fact is material to the transaction; (2) the party with knowledge of that fact knows that the other party is about to enter into the transaction under a mistake as to the fact; (3) the fact is peculiarly and exclusively within the knowledge of one party, and the mistaken party could not reasonably be expected to discover it; and (4) on account of the objective circumstances, the mistaken party would reasonably expect disclosure of the fact. Kaloti, 283 Wis. 2d 555, ¶20. 22 No. pleadings for fraud, states "the circumstances 2005AP1945 constituting fraud or mistake shall be stated with particularity." We have interpreted this statute to require that "allegations of fraud must specify the particular individuals involved, where and when misrepresentations occurred, and to whom misrepresentations were made." Id., ¶21. i. Affirmative representations ¶40 As affirmative factual representations, the Doe plaintiffs allege that the Archdiocese represented that it did not know that Widera had a history of molesting children and it did not know he was a danger to children. The Doe plaintiffs allege the Archdiocese did so by its responses to parishioners' letters wherein it affirmed the parishioners' positive comments about Widera's frequent interactions with children. For example, on February 12, 1974, the Vice President of the St. Andrew School Board wrote: The children in our school literally follow him (Widera) around, he is so kind and shows so much interest in them. On February 19, 1974, the Reverend John J. Theisen, Executive Secretary for the Archdiocese, responded: We are most happy to hear that you are so pleased with Father Sig Widera. We are happy to hear that he is doing well in the school and shows so much interest in the children. The Doe plaintiffs' complaints attach and incorporate these letters and other documents showing that Widera was convicted of a violation of Wis. Stat. § 944.17 (1973-74) (sexual perversion) 23 No. on August 13, 1973. 2005AP1945 It is alleged that the Archdiocese knew of this conviction when it responded in a reaffirming manner to the parishioners' letters. ¶41 The Doe and Linneman complaints also allege that the Archdiocese's act unsupervised access to that the representations of placing the priests children in parishes constituted Archdiocese did not with affirmative know that the priests had a history of sexually molesting children and that the Archdiocese children. did not know the priests were a danger to For example, the Doe plaintiffs' complaints allege: 34. By placing Siegfried Widera at St. Andrews in Delavan, the Archdiocese affirmatively represented to minor children and their families at the parish, including [the] Plaintiffs [] and their families, that Siegfried Widera did not have a history of molesting children, that Defendant Archdiocese did not know that Siegfried Widera had a history of molesting children and that Defendant Archdiocese did not know that Siegfried Widera was a danger to children. . . . . 36. Particularly, Defendant Archdiocese knew that Siegfried Widera had sexually molested numerous children and that Siegfried Widera was a danger to children before Widera molested [] Plaintiff[s]. . . . . 50. Defendant Archdiocese knew that Siegfried Widera had a history of sexually molesting children before Plaintiff[s]. (See John Linneman's Doe 1 Compl.) complaint Similar relative representations about Becker. 24 allegations are to Archdiocese's the made in No. ¶42 We have held that acts can be the equivalent of a representation. N.W.2d 2005AP1945 510 represented Scandrett v. Greenhouse, 244 Wis. 108, 113, 11 (1943). In Greenhouse in Scandrett, a prior the suit attorney received who offer an had to settle the entire suit, including a subrogated claim, for $250. Id. at 110. He responded to the offer by saying he would have to check with the insurance carrier in regard to its position on settling the subrogated claim. the check without further Id. The attorney later accepted comment. However, Id. when he accepted the check, he had not contacted the insurance carrier, and he did not pay its claim. Id. at 110-11. Later, when the insurance carrier sued to collect its $41.20 subrogated claim, there was accepting a question the check about could whether be the construed attorney's as an act affirmative representation sufficient to support a claim for fraud. 111. of Id. at We concluded that it did and explained: It is not necessary for a person to make oral misrepresentation of fact in order to be guilty of fraudulent conduct, such representations may be made by the acts or conduct of the party. The rule is stated in 1 Bigelow, Fraud, p. 467: "Any conduct capable of being turned into a statement of fact is a representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts." Id. at 113 (citations omitted). ¶43 that Courts of affirmative circumstances, be other jurisdictions representations made by non-verbal 25 also may, have recognized under conduct. certain See, e.g., No. 2005AP1945 Haberstick v. Gordon A. Gundaker Real Estate Co., 921 S.W.2d 104, 109 (Mo. Ct. App. 1996) (concluding that conduct undertaken to mislead may satisfy an affirmative representation); Bedell v. Daugherty, 242 S.W.2d 572, 575 (Mo. 1951) (concluding "[a] misrepresentation may be made by conduct calculated to mislead and to fraudulently obtain an undue advantage"); Guaranty Bond State Bank of Mt. Pleasant v. Kelley, 13 S.W.2d 69, 71 (Tex. Comm'n App. 1929) (concluding that even if the husband consummated the deal with the bank, the wife's conduct "amounted to an affirmative representation that she and her husband had, in good faith, conveyed the homestead and reserved the lien thus assigned to the bank"). ¶44 act Here, all the plaintiffs allege that the Archdiocese's of placing the priests in parishes where they had unsupervised access to children affirmatively represented to the minor children and their families that the Archdiocese did not know the priests had a history of molesting children and that the Archdiocese children. did not know the priests were a danger to Because acts can constitute representations of fact, based solely on the allegations in the complaints before us, we cannot conclude complaints are that not such acts sufficient as to are described constitute an in the affirmative representation. ¶45 The other four elements of misrepresentation were also pled by the plaintiffs. intentional First, the plaintiffs allege that the affirmative representations that the Archdiocese did not know of the priests' history of molestation 26 No. 2005AP1945 and that the Archdiocese did not know the priests were a danger to children were untrue. Second, the plaintiffs allege that the Archdiocese knew the representations were untrue when made.13 ¶46 to Third, the complaints allege the Archdiocese intended deceive the representations plaintiffs by not and telling induce the them to parishioners act of on the Widera's criminal conviction of sexually molesting a minor boy and of Becker's history of sexually molesting children. 13 The Doe plaintiffs' complaints state that Widera had been criminally convicted of child molestation and the Archdiocese knew of the conviction. The complaints also state that the Archdiocese received a letter detailing comments of a priest that worked at the parish Widera worked at when criminally convicted. The letter stated that a male grade school teacher who saw Widera "fooling around with the boys of another teacher" told the priest that if Widera "fooled around in the same way with his students, he would punch Father in the face"; that parishioners had come forward after the criminal conviction and reported incidents they had noticed and warnings they gave to their own children; and that Widera would shower all in the nude with boys and then "[w]hen an adult male entered the shower, Fr. Siegfried covered himself with a towel." Linneman alleged that the Archdiocese knew Becker had sexually molested numerous children and that he was a danger to children. Linneman's complaint states that Becker fondled the genitals and attempted to sodomize a minor boy on approximately ten separate occasions from 1971 to 1972 in Milwaukee, Wisconsin, and in approximately 1978, fondled another boy numerous times in California. The pastor at the church in California asked that Becker be transferred back to Milwaukee. Linneman's complaint also states that the Archdiocese received a report from two parishioners in 1980 that Becker had "an unfortunate incident" with a teenage boy, whereupon the Archdiocese sent Becker to therapy and transferred him to another parish. Linneman's complaint also states the Archdiocese received other complaints from concerned parents regarding Becker's inappropriate behavior with children. 27 No. ¶47 2005AP1945 Fourth, the plaintiffs allege that they relied on such representations superiority because and the defendants influence, which molested and suffer damages. were caused in them positions to be of sexually Therefore, we conclude that the plaintiffs have alleged facts sufficient to state claims for fraud. ii. Failure to disclose ¶48 The complaints also alleged fraud through the Archdiocese's failure to disclose the fact that the priests had histories of sexual abuse of children. failure to disclose misrepresentation unless a fact the In general, silence or a is person not has an a duty intentional to disclose. Kaloti, 283 Wis. 2d 555, ¶13; Doe 676C, 284 Wis. 2d 307, ¶49; Ollerman v. O'Rourke Co., 94 Wis. 2d 17, 26, 288 N.W.2d 95 (1980). "If there is a duty to disclose a fact, failure to disclose that fact is treated in the law as equivalent to a representation of the nonexistence of the fact." Wis. 2d at 26. Ollerman, 94 Therefore, whether non-disclosure can satisfy an element of fraud turns on whether the Archdiocese had a duty to disclose to the plaintiffs the fact that the priests had histories of sexual molestation of children. ¶49 Although the question of whether a legal duty exists is a question of law, id. at 27, it is an extremely complex question that may have factual components unsuitable to address on a motion to dismiss. that make it When we review a motion to dismiss, we may, but we are not compelled to, address whether the complaint states more than one claim for relief. 28 No. 2005AP1945 Attoe v. Madison Prof'l Policemen's Ass'n, 79 Wis. 2d 199, 205, 255 N.W.2d 489 plaintiffs' (1977). allegations misrepresentations sufficiency claims based Because of on are the we of failures to concluded affirmative sufficient, plaintiffs' have we do fraudulent disclose that the fraudulent not address the misrepresentation Widera's and Becker's histories of sexually molesting children that were known to the Archdiocese prior to the sexual abuse of the plaintiffs. iii. Accrual of fraud claims14 ¶50 Since we conclude that claims for fraud against the Archdiocese based sufficiently pled, on we intentional now misrepresentations determine whether barred by the statute of limitations. such are claims are The claims for fraud based on intentional misrepresentations are distinguishable from negligent supervision claims. As we explained above, fraud claims are not derivative claims, but rather, intentional torts where the wrongful act is the Archdiocese's fraudulent representation that it did not know of the priests' histories of sexually molesting children and that it did not know the priests 14 Our opinion in BBB Doe did not address intentional misrepresentation. BBB Doe, 211 Wis. 2d at 319 (explaining that the plaintiffs alleged claims against the Archdiocese for "negligent employment, training and supervision of the defendant priests, and for failure to report the abuse"). Our opinion in BBB Doe also contains no discussion of the statute of limitations for fraud, as it would have if the viability of a fraud claim had been analyzed. We point this out because there has been some confusion about whether BBB Doe addressed claims of fraud (intentional misrepresentation) by the Archdiocese. It did not. 29 No. 2005AP1945 were dangerous to children. Fraud claims, if proven, provide a separate cause of the plaintiffs' injuries.15 ¶51 The statute of discovery rule and states: limitations for fraud codifies the "The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the § 893.93(1)(b). facts constituting the fraud." Wis. Stat. We explained the discovery rule as it pertains to fraud as follows: Actual and complete knowledge of the fraud on the part of the plaintiff is not necessary in order to set the limitation period running. When the information brought home to the aggrieved party is such as to indicate where the facts constituting the fraud can be effectually discovered upon diligent inquiry, it is the duty of such party to make the inquiry, and if he fails to do so within a reasonable time he is, nevertheless, chargeable with notice of all facts to which such inquiry might have led. . . . Under the rule quoted above, it is not necessary that a defrauded party have knowledge of the ultimate fact of fraud. What is required is that it be in possession of such essential facts as will, if diligently investigated, disclose the fraud. The burden of diligent inquiry is upon the defrauded party as soon as he has such information as indicates where the facts constituting the fraud can be discovered. 15 As we explained above, the reason the negligent supervision claims accrue at the same time as the underlying sexual assault claims is because when sexual assault by a priest is alleged, the negligent supervision claims are derivative causes of action to the underlying intentional tort claims. BBB Doe, 211 Wis. 2d at 366. No claim for intentional misrepresentation was made in BBB Doe. 30 No. 2005AP1945 Koehler v. Haechler, 27 Wis. 2d 275, 278, 133 N.W.2d 730 (1965) (internal quotations and citations omitted). ¶52 In Koehler, we concluded that a stock purchaser was not barred by the statute of limitations from claiming fraud in the sale of corporate stock allegedly in excess of the number of shares authorized because no fact was presented that should have alerted the purchaser to look to the probate proceeding for information regarding ownership of shares prior to when he did Id. at 278-79. so. should have whether Here, the complaints set out no fact that alerted the the plaintiffs knew Archdiocese to the that attempt to priests discover had prior histories of sexual abuse of children.16 ¶53 fraud The court of appeals applied the discovery rule to a claim in Stroh Die Casting Co. v. Monsanto Wis. 2d 91, 502 N.W.2d 132 (Ct. App. 1993). Stroh was liability a hydraulic action against fluid user that 177 The plaintiff in brought the manufacturer, Co., a products Monsanto, alleging the fluid was defective due to high polychlorinated biphenyl compounds (PCBs).17 Id. at 98. Monsanto moved for summary 16 Although voluminous submissions were made after we accepted review of this case, they may not be used in the motion to dismiss the complaints for failing to state a claim because that motion tests only the legal sufficiency of the complaint. BBB Doe, 211 Wis. 2d at 331. 17 PCBs (polychlorinated biphenyls) "are toxic [compounds that] persist in the environment, and tend to accumulate in the food chains of both human beings and animals." Stroh Die Casting Co. v. Monsanto Co., 177 Wis. 2d 91, 97, 502 N.W.2d 132 (Ct. App. 1993). 31 No. 2005AP1945 judgment, claiming that the cause of action was time barred. Id. at 99. The court of appeals noted that the "date of discovery" is generally a question of fact for the jury and is a question of law only where the facts are undisputed. 104. Id. at The parties in Stroh agreed that for purposes of claim accrual, "it is not necessary that a defrauded knowledge of the ultimate fact of fraud. party have What is required is that it be in possession of such essential facts as will, if Id. at 117-18 diligently investigated, disclose the fraud." (quoting Milwaukee W. Bank v. A.A. Lienemann, 15 Wis. 2d 61, 65, 112 N.W.2d 190 (1961)). ¶54 The court of appeals in Stroh concluded that action was time barred under Wis. Stat. § 893.93(1)(b). the With the enactment of Chapter NR 157 of the Wisconsin Administrative Code in Products September Containing 1977, entitled PCBs," "Management Stroh had to of incur PCBs and substantial expenses for PCB testing and incineration due to its continued use of PCBs regulation in also its hydraulic alerted the fluids. user Id. "to the at 118-19. The pervasiveness and persistence of PCB-containing products in the environment." Id. Furthermore, the user noted that the problems associated with PCB-containing products created throughout the mid-1970s." concluded that enterprise in the suspicious of Monsanto's fluids could "[a]s of Id. to public outcry Therefore, the court of appeals September position continue "tremendous of 1977, Stroh should used 32 in conscientious have become that its Pydraul Stroh's die casting [representation] be a No. operation." Id. at 119. 2005AP1945 Since the court of appeals concluded that had Stroh "diligently investigated the facts known to it [in] September 1977, the alleged fraud on the part of Monsanto would have been discovered." Id. Accordingly, intentional misrepresentation claim was time barred. ¶55 Stroh's Id. Stroh does not provide sufficient support to cause us to dismiss the fraud claims for at least three reasons. First, Stroh was decided after motions for summary judgment and a full Id. at 99. trial for factual development. In contrast, the case now before us presents as a motion to dismiss where the only facts developed are those stated in the complaints or the reasonable inferences that flow from facts pled. Wis. 2d at 331. regulations injuries. in BBB Doe, 211 Second, Stroh's failure to comply with federal regard to PCB disposal Stroh, 177 Wis. 2d at 112. was a cause of its By contrast, none of the children who was assaulted by Widera and Becker did anything to cause their investigation own injuries. that reasonably Third, may be reasoning required in about a the business context is not directly transferable to a relationship that is based on trust, particularly when the trust relationship arises in a religious context such as that of priest and parishioner. Therefore, it does not follow from the fact of being sexually molested that any plaintiff would suspect that the Archdiocese knew that the priests had prior histories of sexual molestation of children and yet placed them in the position where they would molest more children. 33 No. ¶56 It also has been argued that we should 2005AP1945 follow the reasoning of the Utah Court of Appeals in Colosimo v. Roman Catholic dismiss Bishop the of fraud Salt claims Lake City, because 104 the P.3d 646 plaintiffs (2004) should and have discovered the Archdiocese's fraud long before the statute of limitations on fraud had run. We decline the invitation to do so. ¶57 In Colosimo, the plaintiffs brought suit against the Bishop of Salt Lake City, d/b/a the Catholic Diocese of Salt Lake City, and other archdioceses (the Bishop) grounded in their Id. at 649. sexual assaults by a parish priest. of the claims alleged against the Bishop. Id. dismissed all claims on summary judgment. Fraud was one The trial court Id. at 650. The court of appeals affirmed the dismissal based on its conclusion that the trial court had correctly interpreted the Utah statute of limitations as barring all claims. that because the plaintiffs knew at Id. at 652. the time It concluded of the sexual assault that they were injured by the priest and because they knew of the priest's relationship to the other defendants, they were required reasonable after diligence" against the Bishop. ¶58 turning in 18 years discovering of whether age to they "exercise had claims Id. at 653. Colosimo is not persuasive. Initially, we note that Colosimo is a summary judgment decision where facts outside of the pleadings were considered by the court in coming to its conclusions. Id. at 650. We have not considered facts outside of the pleadings and the reasonable inferences therefrom, when 34 No. deciding the case now before us. Furthermore, conclusion Colosimo that the does BBB Doe, 211 Wis. 2d at 331. not assaulted 2005AP1945 give children any reason on for reaching its majority should have investigated whether the Bishop knew of the priest's history of sexually assaulting children before the Bishop placed the priest in the parishes where he assaulted Colosimo. Accordingly, as we review the complaints before us, we conclude they do not provide a basis from which we can conclude, as a matter of law, that a reasonable person in the position of the plaintiffs should have investigated whether the Archdiocese knew of Widera's and Becker's prior sexual molestations of children and yet placed them in positions where they could sexually molest more children. ¶59 The Archdiocese also contends that the statute of limitations for sexual abuse of a child, Wis. Stat. § 893.587, demonstrates that the legislature's public policy is to toll the statute of limitations for the plaintiffs' claims no later than their 35th birthday.18 Wisconsin Stat. § 893.587 states: An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred. 18 We did not address this contention under the claim for negligent supervision because we concluded those claims accrued at the time of abuse in the mid-1970s or 1982 and were barred by the statute of limitations then in effect. Wisconsin Stat. § 893.587 was not created until 2003 and did not take effect until May 2004. 2003 Wis. Act 279, § 6. 35 No. ¶60 2005AP1945 The statutes listed in Wis. Stat. § 893.587 refer to acts of sexual assault, incest, or sexual exploitation.19 The act the that the Archdiocese's complaints allege fraudulent caused injury misrepresentation, is i.e., the representation that the Archdiocese did not know the priests had histories of sexually abusing children priests were dangerous to children. in § 893.587 refers to and did not know the None of the statutes listed fraudulent misrepresentations. Therefore, the statute does not apply to these claims of fraud. ¶61 We do recognize the important policy consideration of protecting defendants from defending stale claims, witnesses and relevant evidence may be unavailable. 211 Wis. 2d at 334. However, we also recognize when BBB Doe, that tort victims should be given a fair opportunity to enforce legitimate claims against wrongdoers. ¶62 Id. Keeping these policy considerations in mind, we deny the motion to dismiss the fraud claims because we conclude that, based solely on the complaints, we cannot determine when the plaintiffs alleged knew knowledge or of should have the priests' 19 known past of the Archdiocese's histories of sexual Wisconsin Stat. § 948.02 refers to "[s]exual assault of a child"; Wis. Stat. § 948.025 refers to "[e]ngaging in repeated acts of sexual assault of the same child"; Wis. Stat. § 948.06 refers to "[i]ncest with a child"; Wis. Stat. § 948.085 refers to "[s]exual assault of a child placed in substitute care"; Wis. Stat. § 948.095 refers to "[s]exual assault of a child by a school staff person or a person who works or volunteers with children"; and Wis. Stat. § 895.442 refers to "[s]exual exploitation by a member of the clergy." 36 No. molestation of children. 2005AP1945 Therefore, their claims may or may not be time-barred by Wis. Stat. § 893.93(1)(b), depending on when the claims for fraud accrued. a question of fact. if the facts are The date of discovery is usually See Borello, 130 Wis. 2d at 404. not in dispute or if there However, is only one reasonable inference to be drawn from them, determination of the date of discovery is a question of law that we will review independently. See Vocational, Technical & Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977). ¶63 Since opportunity a to Archdiocese's motion fully argument to dismiss develop that does the not plaintiffs' fraud the surrounding facts present the claims accrued more than six years before the date on which they were filed, we conclude that the claims for fraud survive the motion to dismiss. However, we want to clarify that we are not precluding summary judgment if undisputed facts demonstrate that the claims for fraud accrued more than six years prior to the dates on which the claims were filed. III. ¶64 We conclude CONCLUSION 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 conclude last incident that misrepresentation Archdiocese's the are alleged of sexual claims assault. of independent knowledge 37 of fraud claims the However, for also intentional based priests' we on prior the sexual No. 2005AP1945 molestation of children and the Archdiocese's intent to deceive children and their families. of the accrual of the We further conclude that the date fraud claims is "when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered" that the cause of their injuries. determination cannot be Archdiocese's alleged fraud BBB Doe, 211 Wis. 2d at 340. resolved by a motion to was a This 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. By the Court. The decision of the court of appeals is affirmed in part; reversed in part and remanded to the circuit court. 38 No. ¶65 SHIRLEY S. ABRAHAMSON, dissenting in part). C.J. (concurring in part, This case involves two types of claims against the Archdiocese of Milwaukee: fraud. 2005AP1945.ssa negligent supervision and The plaintiffs, now adults, allege that as children they were sexually abused by Roman Catholic priests and that the defendant, the Archdiocese of Milwaukee, negligently supervised the priests and committed fraud by not disclosing information about, and by actively covering up, previous incidents of sexual abuse by the priests. The Archdiocese asserts that these claims are barred by the statute of limitations because the last sexual assault occurred 29 years prior to the commencement of the lawsuit. ¶66 I agree with the majority opinion 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 intent to deceive children and their families." ¶2. Archdiocese's Majority op., I further agree that "the date of the accrual of the fraud claims is 'when the plaintiffs discovered or, in the exercise of reasonable diligence, Archdiocese's alleged should fraud have was a discovered' cause Majority op., ¶2 (quoted source omitted). of their that the injuries." I join that part of the majority opinion that remands the cause to the circuit court for further proceedings on the plaintiffs' fraud claims. ¶67 I cannot, however, join that part of the opinion that affirms the dismissal of the plaintiffs' negligent supervision 1 No. claims. 2005AP1945.ssa I do not agree 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." Majority op., ¶2. I think the majority opinion turns the case law on its head. ¶68 I reason classification of as the follows: tort of (I) the majority negligent opinion's supervision as "derivative" does not comport with traditional understandings of "derivative claims"; (II) the controlling precedent, the Miller1 and Doyle2 cases, is clear that claims brought against an employer for negligent supervision are independent claims; and (III) the BBB Doe3 and Pritzlaff4 cases (and similar cases) do not control. I ¶69 The majority opinion holds that negligent supervision claims are "derivative claims" that accrue at the time of the wrongful act of the employee, not at the time of the wrongful act of the employer. 1 Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998). 2 Doyle v. Engelke, 219 Wis. 2d 277, 291 n.6, 580 N.W.2d 245 (1998). 3 John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997). 4 Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995) 2 No. ¶70 The majority opinion classification "derivative." ¶71 and has no 2005AP1945.ssa trouble with the I do. The distinction drawn by this court between derivative independent causes In labels has court has "separate" [of fact, action "this consistent. of and particularly useful . . . ."5 not been concluded "derivative" clear that claims] or these are not The distinction often depends on the purpose for which the distinction is being made.6 Moreover, our cases have reached divergent conclusions about whether a claim is derivative or not. "The concept of what is a 'separate claim' and what is a 'derivative claim' has caused this court great difficulty, and 'the cases are confusing.'"7 ¶72 Even more troubling is that the majority opinion, by classifying this claim as "derivative," distorts the traditional and accepted understanding of "derivative claims." The Restatement (Third) of Torts instructs that "derivative claims" occur "where a plaintiff claims injury due to the defendant's 5 Theama v. City N.W.2d 513 (1984). of Kenosha, 6 117 See Finnegan ex rel. Skoglind v. 2003 WI 98, ¶44 n.9, 263 Wis. (Abrahamson, C.J., concurring) characterization depends on whether contributory negligence, limits on statutes of limitations). 7 Wis. 2d 508, 527, 344 Wis. Patients Comp. Fund, 2d 574, 666 N.W.2d 797 (discussing how the the court is addressing amount of recovery, or Wangen v. Ford Motor Co., 97 Wis. 2d 260, 316, 294 N.W.2d 437 (1980) (quoted source omitted). In White v. Lunder, 66 Wis. 2d 563, 574, 225 N.W.2d 442 (1975), the court confessed that "[t]o declare both of these causes of action [medical expenses for his wife and loss of consortium] derivative might not be entirely logical" but did so anyway. 3 No. tortiously explains injuring that a third "[c]laims in 2005AP1945.ssa person."8 The which plaintiff's the Restatement also recovery depends on the defendant's committing a tort against a third person are often called 'derivative claims,'" and include wrongful death claims.9 ¶73 Traditionally, claims are "derivative" when one person asserts that he or she experienced damage as a result of a tort committed by a tortfeasor against another person.10 8 Restatement (Third) of Torts: § 6 cmt. b (reporter's note) (1999). The claim Apportionment of Liability, 9 Restatement (Third) of Torts: Apportionment of Liability, § 6 cmt. a (1999). 10 See also Wis. Stat. § 655.007 (2005-06) which provides that "On and after July 24, 1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter." In Pierce v. Physicians Insurance Co. of Wisconsin, Inc., 2005 WI 14, ¶12, 278 Wis. 2d 82, 692 N.W.2d 558, the court explained the obvious application of § 655.007: "[t]here is no dispute that Pierce [the mother] has the derivative claim of a parent for the wrongful death of Brianna [her daughter] under Wis. Stat. § 655.007." In Maurin v. Hall, 2004 WI 100, ¶29, 274 Wis. 2d 28, 682 N.W.2d 866, the court also explained that "[a] parent's claim for the loss of society and companionship with a minor child is a derivative claim." See also State Farm Mutual Automobile Insurance Co. v. Langridge, 2004 WI 113, ¶33, 275 Wis. 2d 35, 683 N.W.2d 75, discussing and agreeing with Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997), and Richie v. American Family Mutual Insurance Co., 140 Wis. 2d 51, 409 N.W.2d 146 (Ct. App. 1987), two cases that "distinguish between independent claims and derivative claims. Both conclude that when an insured seeks payment arising out of the bodily injury of another, the insured's claims are 'derivative' of the claim of the person suffering the bodily injury . . . ." 4 No. derives from the injury another suffers. 2005AP1945.ssa In negligent supervision claims, however, a plaintiff asserts that he or she was directly injured by two separate persons. supervision claim, there are two wrongs: In a negligent one wrong by the employee and a separate wrong by the employer. A negligent supervision concept claim does not fit the traditional of "derivative claim." ¶74 The majority opinion tries to find support for its characterization "derivative" suits.11 by of the resort to negligent corporate supervision law, claim namely as shareholder In a shareholder suit, the shareholder sues on behalf of the company for wrongs done to the company. Put another way, the shareholder is asserting the company's claim, not his or her own personal claim.12 The analogy to shareholder suits thus does not support the treatment of a claim for negligent supervision as a derivative claim. The plaintiff with a negligent In Finnegan, 263 Wis. 2d 574, ¶26, a plurality of the court explained that "[o]ur jurisprudence outlines the types of claims that are considered derivative. Claims for the loss of society, companionship, and consortium are derivative even though they technically 'belong' to the close relative making the claim." 11 The majority opinion states that "a derivative action is a suit by a shareholder to enforce a corporate cause of action based on a right of the corporation." Majority op., ¶24 n.11. 12 Justice Roggensack explained in a concurring opinion that "[i]n the context of corporate law, a derivative claim for relief permits an individual shareholder to enforce a claim for relief that belongs to the corporation by claiming the action of another injured the corporation. See Einhorn v. Culea, 2000 WI 65, ¶16, 235 Wis. 2d 646, 612 N.W.2d 78." Gottsaker v. Monnier, 2005 WI 69, ¶47 n.4, 281 Wis. 2d 361, 697 N.W.2d 436 (Roggensack, J., concurring). 5 No. 2005AP1945.ssa supervision claim is asserting a personal claim for a personal injury that was caused by the employer. ¶75 Of course, the conduct supervision claim is related employee. to leading the to the underlying negligent wrong by the But as a plurality of the court explained in Finnegan ex rel. Skoglind v. Wisconsin Patients Compensation Fund, 2003 WI 98, ¶27, 263 Wis. 2d 574, 666 N.W.2d 797, a claim can be nonderivative "although [the claim] arises from a shared set of underlying facts" as another claim. Despite the shared set of underlying facts, a plaintiff who sues for negligent supervision is asserting independent that tort, he not or she that has he or been she the has victim a of separate an but dependent damages claim deriving from a tort injury to another (as in a derivative claim such as loss of consortium or society) or from a tort injury by the employee. ¶76 A derivative claim does not have its own elements distinct from the negligence claim to which it attaches. For instance, juries are instructed that loss of consortium and loss of society separate and companionship negligence are inquiries.13 13 categories A claim of damages, for not negligent See Wis JI Civil 1815 (loss of consortium); 1837 (parent's loss of society and companionship); 1838 (minor child's loss of society and companionship) (all appearing in the jury instruction manual under the subheading "Damages"). Jury instructions for "Employer Negligence: Negligent Hiring, Training, or Supervision" are located in the jury instruction manual under the subheading "Other Negligence." Wis JI Civil 1383. 6 No. 2005AP1945.ssa supervision, on the other hand, has its own elements distinct from the tort claim against the employee.14 ¶77 Applying the traditional statement of the difference between derivative and independent claims, I conclude that the claim for negligent supervision is an independent claim. II ¶78 Contrary to the majority opinion, well-established precedent does not support the conclusion that the negligent supervision claims in the instant case are derivative actions that accrue at the time of the injury. A review of the case law makes this conclusion abundantly clear. ¶79 The claim of negligent supervision was not recognized by this court as a valid cause of action until 1998 in Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998).15 ¶80 The Miller court, 219 Wis. 2d at 262, makes clear that "there must be a nexus between the negligent hiring, training, 14 "A claim for negligent supervision of an employee requires the plaintiff to plead and prove all of the following: (1) the employer had a duty of care owed to the plaintiff; (2) the employer breached its duty; (3) a wrongful act or omission of an employee was a cause-in-fact of the plaintiff's injury; and (4) an act or omission of the employer was a cause-in-fact of the wrongful act of the employee." Majority op., ¶17. See also Wis JI Civil 1383 ("Employer Negligence: Negligent Hiring, Training, or Supervision"). The elements of the tort claim against the employee are different. For instance, a battery claim would require the fact-finder to determine whether the employee intentionally caused bodily harm to the plaintiffs and that the plaintiff did not consent to the harm. Wis JI Civil 2005 (battery). 15 John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, 284 Wis. 2d 307, ¶21 n.3, 700 N.W.2d 180. 7 No. or supervision and the act of the employee." Miller explained, "[w]ith respect to a 2005AP1945.ssa As the court in cause of action for negligent hiring, training or supervision, we determine that the causal question is whether the failure of the employer to exercise due care was a cause-in-fact of the wrongful act of the employee that in turn caused the plaintiff's injury." 219 Wis. 2d at 262. ¶81 The employee's wrongful act, however, did not have to be actionable itself. The Miller court, 219 Wis. 2d at 263, explained that "we stop short of requiring an underlying tort." The court clearly set forth the elements required for a claim of negligent supervision in Miller: "[w]e do conclude that there must be an underlying wrongful act committed by the employee as an element of the tort negligent hiring, act may be necessarily." The Miller court, 219 Wis. 2d at 263-64, went on to the The employer a tort, "should not but or A point: well training supervision. emphasize wrongful of not escape liability for its negligent act or omission simply because the employee's underlying wrongful act is not an actionable tort." ¶82 275, on Justice Steinmetz dissented in Miller, 219 Wis. 2d at the ground that he "would hold that the tort of negligent hiring, training, or supervision should include, as a necessary employee." element, an underlying tort committed by the Justice Steinmetz explained his position as follows: "Since the employee did not commit an underlying tort, the court should have simply reversed the judgment of the circuit court. The court, however, has taken it upon itself to craft a new, 8 No. 2005AP1945.ssa untested theory of law to allow this particular plaintiff to recover damages from the exonerated employee's employer." Miller, 219 Wis. 2d at 276 (Steinmetz, J., dissenting). ¶83 If there is no need for an underlying tort, how can the negligent supervision claim be derivative? it derivative of? What exactly is The majority opinion does not answer these questions, and as a result, rewrites Miller. ¶84 In Doyle v. Engelke, 219 Wis. 2d 277, 291 n.6, 580 N.W.2d 245 (1998), the court further discussed the nature of negligent supervision claims, making clear that negligent supervision claims are independent causes of action. ¶85 In Doyle, an employee had allegedly committed an intentional tort against the plaintiff, and the plaintiff sued the employer, whether the employer) claiming insurer against negligent had a claims duty of supervision. to defend negligent At its issue insured supervision when was (the the insurance policy exempted intentional torts from the duty to defend.16 concluded The that circuit the court and intentional the acts court exclusion of appeals clause of had the insurance policy released the insurance company from any duty to defend for negligent supervision stemming from the intentional torts of the employee. This court reached a different conclusion. 16 Specifically, the intentional that the insurance company injury . . . that's . . . intended by 219 Wis. 2d at 291 (quoting insurance person" was the employer. 9 act exclusion indicates "'won't cover bodily the protected person.'" policy). The "protected No. ¶86 This negligent court in supervision Doyle claim recognized was that related to 2005AP1945.ssa although the the employee's intentional misconduct, the claim of negligent supervision was nonetheless independent intentional tort. The and distinct Doyle court from the explained employee's that "[w]hile negligent supervision does require an underlying wrong to be committed focuses by on the the employee as tortious, an i.e. element, negligent, employer." 219 Wis. 2d at 291 n.6. court, claim the of negligent the tort conduct actually of the According to the Doyle supervision "focuses on [the employer's] negligence in supervising its employees whether or not the employees committed the underlying wrong intentionally." 219 Wis. 2d at 291. ¶87 The Doyle court further explained that the claim for negligent supervision liability. ¶88 was not a claim based on vicarious 219 Wis. 2d at 291-92. As in Miller, the decision in Doyle is abundantly clear that there need be no underlying tort for a claim of negligent supervision to arise. Without an underlying tort, what is a claim of negligent supervision derivative of? ¶89 Although the Miller and Doyle cases do not use the word "independent" or "derivative," the cases make clear that negligent supervision of an employee is an independent claim. ¶90 The majority opinion's attempt to distinguish the instant case from Miller and Doyle is weak and unpersuasive. The majority points out several times that the court in Miller and Doyle did not refer to BBB Doe. 10 Majority op., ¶¶31, 33. It No. 2005AP1945.ssa does not matter in the slightest that Miller and Doyle did not refer to BBB Doe. about negligent avoided BBB Doe did not conclusively decide anything supervision answering existed. even claims. whether The negligent court in BBB supervision Doe claims Why would a later case cite to BBB Doe in regard to negligent supervision?17 ¶91 and The majority opinion gives short shrift to the Miller Doyle involve cases, the apparently Archdiocese, on the priests, ground or that any they do religious not order employers or employees of a religious order. ¶92 The majority opinion's reliance on Pritzlaff and BBB Doe simply because they share a factual context supervision (or lack thereof) by the Archdiocese is misplaced. These cases did not recognize that the claim of negligent supervision existed in Wisconsin law, let alone definitively determine whether such a claim was derivative or independent or shared the same statute of limitations as a cause of action against a priest. ¶93 I turn to the cases involving priests and dioceses. III ¶94 The Pritzlaff supervision majority control that the are opinion outcome before asserts of us." the that "BBB claims for Majority op., Doe and negligent ¶36. The majority opinion states that "[t]hey are controlling precedent 17 The comments to the relevant jury instruction, Wis JI Civil 1383 ("employer negligence: negligent hiring, training, or supervision"), do not refer to BBB Doe or Pritzlaff. The comments instead rely heavily on Miller for guidance on the elements of and nature of the tort claim. 11 No. 2005AP1945.ssa that have decided that the claims of negligent supervision made here are derivative of the underlying sexual molestations by the priests." ¶95 Id. Not true! BBB Doe and Pritzlaff do not control the outcome in the instant case. These cases did not decide whether a claim of negligent supervision was a derivative or independent cause of action. not even In fact, when these cases were decided, the court had recognized that a claim of negligent supervision, training, or hiring could be brought against an employer under Wisconsin law. ¶96 of In 1995, this court decided Pritzlaff v. Archdiocese Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995). The plaintiff, an adult woman, brought suit against a priest whom she claimed had coerced her into having sexual relations. The plaintiff also sued the Archdiocese, claiming it was negligent in hiring, retaining, training, and supervising the priest. ¶97 The Pritzlaff court focused much of its attention and discussion on the plaintiff's direct claim against the priest. In fact, over 20 pages of the court's 35-page decision exclusively analyzed this claim. ¶98 When the Pritzlaff court finally got around to discussing the plaintiff's claim against the Archdiocese, the Pritzlaff court "assumed, without deciding, that a claim for negligent Wisconsin." 325-26). hiring, training and supervision existed in Majority op., ¶25 (citing Pritzlaff, 194 Wis. 2d at The assumption that the negligent supervision claim existed in Wisconsin was not the only assumption employed by the 12 No. Pritzlaff court. 2005AP1945.ssa The Pritzlaff court also "assume[d], without deciding, that the discovery rule applies to the Archdiocese." ¶99 The Pritzlaff court did not have occasion to decide whether the claim actually existed, and if so, whether it was independent or derivative of any tort committed by the priest, because of First Amendment issues. Pritzlaff, 194 Wis. 2d at 326). Majority op., ¶25 (citing The Pritzlaff court concluded that "the claims of negligent hiring, retaining, training and supervision are barred by the First Amendment in this case." 194 Wis. 2d at 307. See also 194 Wis. 2d at 326. ¶100 The Pritzlaff court never decided whether a claim of negligent supervision was viable in Wisconsin and whether the discovery rule would apply to it. The Pritzlaff court did not engage in any analysis of the nature of the plaintiff's claim against the Archdiocese. Pritzlaff, a case that made assumptions but did not decide the issue, is neither controlling nor helpful. ¶101 In 1997, the court again addressed supervision claims brought against the Archdiocese in negligent John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997). The plaintiffs in BBB Doe were adults who alleged that they were sexually molested by priests when they were children but had repressed their memories of these traumatic events. The plaintiffs who brought direct claims allegedly sexually abused them. against the priests The plaintiffs also brought claims against the churches and the Archdiocese for negligent 13 No. 2005AP1945.ssa employment, training and supervision of the priests, and for failure to report the abuse. ¶102 As in Pritzlaff, the court in BBB Doe focused almost exclusively on the claims brought directly against the priests. The opinion devotes over 50 pages (from 211 Wis. 2d at 312 to 211 Wis. 2d at 366) of analysis to discussing the claims against the priests. ¶103 Only in the "Conclusion" section of the opinion, that is, only at the very end of the majority opinion, does the court discuss the claims against the Archdiocese. The BBB Doe court states: In light of our conclusion that all seven plaintiffs' claims based on intentional sexual assault are barred by the applicable statute of limitations, we need not address their claims based on respondeat superior and negligent employment theories. Plaintiffs' derivative causes of action against the Archdiocese and the churches accrued at the same time that the underling intentional tort claims accrued, and similarly would be barred by the statute of limitations. See Pritzlaff, 194 Wis. 2d at 312, 533 N.W.2d 780 (statute of limitations period for actions against the Archdiocese begins on same date the cause of action accrued against the individual priest defendant). BBB Doe, 211 Wis. 2d at 366. court's entire supervision. discussion This paragraph constitutes the on the subject of negligent Two sentences later is the mandate line. ¶104 The BBB Doe decision barely paid any attention to the claim against afterthought in the the Archdiocese. decision, These and the claims only were support a mere for the conclusion that the claims were "derivative" and barred by the 14 No. 2005AP1945.ssa statute of limitations was the Pritzlaff decision, which, as discussed above, did not decide the issue. ¶105 Even more telling is that the BBB Doe court, 211 Wis. 2d at 366, characterized the claims against the Archdiocese as "based on respondeat superior and negligent employment theories" which suggests that the court viewed these claims as grounded in vicarious liability. The court later clarified in Miller and Doyle that this view of negligent supervision claims was wrong. claim These later cases which actually recognized that a of negligent supervision existed in Wisconsin law explained that a claim of negligent supervision was based on the independent wrongful act of the employer. ¶106 If Pritzlaff and BBB speculation, Doe how were can based they be only on assumptions and controlling precedent? Pritzlaff and BBB Doe cannot and do not hold the answer to the instant case. ¶107 Another supports the case, conclusion decided that after BBB BBB Doe Doe and and Pritzlaff, Pritzlaff did not resolve the questions surrounding negligent supervision claims. John Doe 67C Wis. 2d 307, v. Archdiocese of 700 N.W.2d 180, like brought against alleged they Specifically, priests and were sexually the plaintiffs Milwaukee, the abused BBB 2005 Doe, Archdiocese as alleged 123, involved by children that WI the claims adults by 284 who priests. Archdiocese negligently supervised the priests. ¶108 The majority opinion in John Doe 67C, however, did not answer whether a claim of negligent supervision was a derivative 15 No. claim and did not answer whether a claim 2005AP1945.ssa of supervision could be saved by the discovery rule. negligent The majority opinion in John Doe 67C upholds dismissal of the plaintiffs' negligent supervision claims on very limited grounds: the complaint insufficiently alleged facts to support the claim of negligent supervision. The John Doe 67C court makes clear that it was leaving resolution of the questions regarding negligent supervision for another day.18 ¶109 If there were any doubt about the majority's position in John Doe 67C, Justice Bradley's concurring opinion in John Doe 67C emphasized that "[i]nstead questions . . . the majority dodges them. in an error correcting fashion based on of answering the It decides this case the sufficiency particular allegations in an individual complaint." 67C, 284 Wis. 2d 307, ¶62 (Bradley, J., concurring). of John Doe Justice Bradley announced that "the questions in this context remain open." Id., ¶63 (Bradley, J., concurring). 18 The John Doe 67C court explained that "[i]n essence, Doe alleges that the Archdiocese committed the tort of negligent supervision because it 'knew or should have known' that its employee, Nuedling, was in fact a notorious pedophile." 284 Wis. 2d 307, ¶21. Footnote three in this paragraph explains: This court did not recognize the tort of 'negligent supervision' until 1998. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998). Doe argues that because he did not discover his claims until 2002, four years after our decision in Miller, he can benefit from that holding despite the fact that the Archdiocese's allegedly wrongful conduct occurred in 1960-62. Given our holding in this case, we need not address this argument. 16 No. ¶110 If compelled similar parties, examine L.L.N. (1997). In the v. to find support in majority opinion should Clauder, Clauder, similar to Pritzlaff. the 209 a Wis. 2d 674, court was faced 2005AP1945.ssa case involving more 563 with closely N.W.2d 434 a situation The plaintiff, an adult woman, alleged that the diocese was negligent in supervising the priest who served as a hospital chaplain and who used his position as a pastoral counselor to coerce the woman to have sexual relations. ¶111 The courts, Clauder refused to court, like recognize the Pritzlaff whether supervision existed in Wisconsin law. the claim and of BBB Doe negligent Nonetheless, the Clauder court elaborated on what it thought this claim might look like, reaching conclusions similar to those in the Miller and Doyle cases, which recognized the claim. ¶112 The Clauder court stated that in negligent supervision, "liability does not result solely because of the relationship of the employer and employee, but instead because of the independent negligence of the employer." 699 (citing Restatement (Second) of Agency 209 Wis. 2d at § 213 cmt. According to the Clauder court, a claim for negligent supervision is distinct from a claim for vicarious liability, in that the former is based on tort principles and the latter is based on agency principles. More specifically, with a vicarious liability claim, an employer is alleged to be vicariously liable for a negligent act or omission committed by its employee in the scope of employment. Thus, vicarious liability is based solely on the agency relationship of a master and servant. In contrast, with a negligent supervision claim, an employer is alleged to be liable for a negligent act or omission it has committed in supervising its 17 d). No. 2005AP1945.ssa employee. Therefore, liability does not result solely because of the relationship of the employer and employee, but instead because of the independent negligence of the employer. 209 Wis. 2d at 699 n.21. ¶113 The results Clauder under the court rule elaborated stated in further: this "Liability Section [of the Restatement (Second) of Agency] not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk." ¶114 Clauder, 209 Wis. 2d at 699. Clauder, too, is not controlling precedent. Like BBB Doe and Pritzlaff, it does not recognize the claim of negligent supervision and only ruminates about what it might look like. Nonetheless, Clauder engages in a richer discussion beyond the few sentences located in Pritzlaff and BBB Doe. ¶115 Justice Bradley's concurring opinion in John Doe 67C explained the application rule: of "Because direct the claims statute Doe's against of the Archdiocese limitations independent, direct and the claims and the discovery against the Archdiocese involve different elements from any potential cause of action against [the priest], the discovery rule may still benefit Doe's claims even when the underlying claim against the perpetrator has already been time barred. As counsel for Doe explained at oral argument, the allegations in this case 'do not arise out of the moment of the sexual attack. They arise out of the secrecy of the Archdiocese, which we could only learn about as of 2002.'" 284 Wis. 2d 307, ¶83 (Bradley, J., concurring). 18 No. 2005AP1945.ssa ¶116 Justice Bradley's reasoning in John Doe 67C applies in the instant case. * * * * ¶117 Decades conduct of the have elapsed Archdiocese since the occurred. alleged But that wrongful should prevent the plaintiffs from having their day in court. not The plaintiffs shoulder the burden of proving their case against the Archdiocese, applies to including their Archdiocese. demonstrating independent causes that of the discovery action rule against the I would give them that opportunity rather than dismissing their complaint and terminating their cause. ¶118 For the foregoing reasons, I concur in the parts of the majority opinion that reverse the decision regarding the plaintiffs' causes of action grounded in fraud and I dissent from the parts of the majority opinion that affirm the decision dismissing the negligent supervision claims. I would remand the cause to the circuit court for further proceedings on all of the plaintiffs' claims. ¶119 I am authorized to state BRADLEY joins this opinion. 19 that Justice ANN WALSH No. 1 2005AP1945.ssa