¶ 65. (concurring in part, dissenting in pari). This case involves two types of claims against the Archdiocese of Milwaukee: negligent supervision and fraud. 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 Archdiocese's intent to deceive children and their families." Majority op., ¶ 2. I further agree that "the date of the accrual of the fraud claims is 'when the plaintiffs discovered or, in the exercise of *77reasonable diligence, should have discovered' that the Archdiocese's alleged fraud was a cause of their injuries." Majority op., ¶ 2 (quoted source omitted). 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 claims. 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., ¶ 2.1 think the majority opinion turns the case law on its head.
¶ 68. I reason as follows: (I) the majority opinion's classification of the tort of negligent 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.
HH
¶ 69. The majority opinion holds that negligent supervision claims are "derivative claims" that accrue at *78the time of the wrongful act of the employee, not at the time of the wrongful act of the employer.
¶ 70. The majority opinion has no trouble with the classification "derivative." I do.
¶ 71. The distinction drawn by this court between derivative and independent causes of action has not been clear or consistent. In fact, "this court has concluded that these labels [of "separate" and "derivative" claims] are not particularly useful. . . ."5 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 claim1 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 tortiously *79injuring a third person."8 The Restatement also explains that "[c]laims in which the plaintiffs 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 The claim derives from the injury *80another suffers. In negligent supervision claims, however, a plaintiff asserts that he or she was directly injured by two separate persons. In a negligent supervision claim, there are two wrongs: one wrong by the employee and a separate wrong by the employer. A negligent supervision claim does not fit the traditional concept of "derivative claim."
¶ 74. The majority opinion tries to find support for its characterization of the negligent supervision claim as "derivative" by resort to corporate law, namely shareholder suits.11 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 supervision claim is asserting a personal claim for a personal injury that was caused by the employer.
*81¶ 75. Of course, the conduct leading to the negligent supervision claim is related to the underlying wrong by the employee. 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 nonderiva-tive "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 that he or she has been the victim of an independent tort, not that he or she has a separate 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 and companionship are categories of damages, not separate negligence inquiries.13 A claim for negligent supervision, on the other hand, has its own elements distinct from the tort claim against the employee.14
*82¶ 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.
¶ 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 &f 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, or supervision and the act of the employee." As the court in Miller explained, "[w]ith respect to a cause of action for negligent hiring, training or supervision, we determine that the causal question is whether the failure of the employer to exercise *83due care was a cause-in-fact of the wrongful act of the employee that in turn caused the plaintiffs 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 of negligent hiring, training or supervision. A wrongful act may well be a tort, but not necessarily." The Miller court, 219 Wis. 2d at 263-64, went on to emphasize the point: The employer "should not escape liability for its negligent act or omission simply because the employee's underlying wrongful act is not an actionable tort."
¶ 82. Justice Steinmetz dissented in Miller, 219 Wis. 2d at 275, on the ground that he "would hold that the tort of negligent hiring, training, or supervision should include, as a necessary element, an underlying tort committed by the employee." 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, 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? What exactly is it derivative of? The majority opinion does not answer these questions, and as a result, rewrites Miller.
*84¶ 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, claiming negligent supervision. At issue was whether the insurer had a duty to defend its insured (the employer) against claims of negligent supervision when the insurance policy exempted intentional torts from the duty to defend.16 The circuit court and the court of appeals had concluded that the intentional acts exclusion clause of 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.
¶ 86. This court in Doyle recognized that although the negligent supervision claim was related to the employee's intentional misconduct, the claim of negligent supervision was nonetheless independent and distinct from the employee's intentional tort. The Doyle court explained that "[w]hile negligent supervision does require an underlying wrong to be committed by the employee as an element, the tort actually focuses on the tortious, i.e. negligent, conduct of the employer." 219 Wis. 2d at 291 n.6. According to the Doyle court, the claim of negligent .supervision "focuses on [the employer's] negligence in supervising its employees— *85whether 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 was not a claim based on vicarious liability. 219 Wis. 2d at 291-92.
¶ 88. 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. Majority op., ¶¶ 31, 33. It does not matter in the slightest that Miller and Doyle did not refer to BBB Doe. BBB Doe did not conclusively decide anything about negligent supervision claims. The court in BBB Doe avoided answering even whether negligent supervision claims existed. Why would a later case cite to BBB Doe in regard to negligent supervision?17
¶ 91. The majority opinion gives short shrift to the Miller and Doyle cases, apparently on the ground that they do not involve the Archdiocese, priests, or any religious order employers or employees of a religious order.
*86¶ 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.
I — i
¶ 94. The majority opinion asserts that "BBB Doe and Pritzlaff control the outcome of the claims for negligent supervision that are before us." Majority op., ¶ 36. The majority opinion states that "[t]hey are controlling precedent that have decided that the claims of negligent supervision made here are derivative of the underlying sexual molestations by the priests." Id. Not true!
¶ 95. 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. In fact, when these cases were decided, the court had not even recognized that a claim of negligent supervision, training, or hiring could be brought against an employer under Wisconsin law.
¶ 96. In 1995, this court decided Pritzlaff v. Archdiocese of 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 *87Archdiocese, 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 plaintiffs 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 plaintiffs claim against the Archdiocese, the Pritzlaff court "assumed, without deciding, that a claim for negligent hiring, training and supervision existed in Wisconsin." Majority op., ¶ 25 (citing Pritzlaff, 194 Wis. 2d at 325-26). The assumption that the negligent supervision claim existed in Wisconsin was not the only assumption employed by the Pritzlaff court. 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. Majority op., ¶ 25 (citing Pritzlaff, 194 Wis. 2d at 326). 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 plaintiffs 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 negligent supervision claims brought against the Archdio*88cese in 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 brought direct claims against the priests who allegedly sexually abused them. The plaintiffs also brought claims against the churches and the Archdiocese for negligent 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. This paragraph constitutes the court's entire discussion on the subject of negligent supervision. Two sentences later is the mandate line.
*89¶ 104. The BBB Doe decision barely paid any attention to the claim against the Archdiocese. These claims were a mere afterthought in the decision, and the only support for the conclusion that the claims were "derivative" and barred by the 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. These later cases — which actually recognized that a claim 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 Doe were based only on assumptions and speculation, how can they be controlling precedent? Pritzlaff and BBB Doe cannot and do not hold the answer to the instant case.
¶ 107. Another case, decided after BBB Doe and Pritzlaff, supports the conclusion that BBB Doe and Pritzlaff did not resolve the questions surrounding negligent supervision claims. John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, 284 Wis. 2d 307, 700 N.W.2d 180, like BBB Doe, involved claims brought against priests and the Archdiocese by adults who alleged they were sexually abused as children by priests. Specifically, the plaintiffs alleged that the Archdiocese negligently supervised the priests.
¶ 108. The majority opinion in John Doe 67C, however, did not answer whether a claim of negligent *90supervision was a derivative claim and did not answer whether a claim of negligent supervision could be saved by the discovery rule. 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 "[ijnstead of answering the questions . . . the majority dodges them. It decides this case in an error correcting fashion based on the sufficiency of particular allegations in an individual complaint." John Doe 67C, 284 Wis. 2d 307, ¶ 62 (Bradley, J., concurring). Justice Bradley announced that "the questions in this context remain open." Id., ¶ 63 (Bradley, J., concurring).
¶ 110. If compelled to find support in a case involving similar parties, the majority opinion should more closely examine L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997). In Clauder, the court was faced with a situation similar to Pritzlaff. The plaintiff, *91an 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 Clauder court, like the Pritzlaff and BBB Doe courts, refused to recognize whether the claim of negligent supervision existed in Wisconsin law. 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." 209 Wis. 2d at 699 (citing Restatement (Second) of Agency § 213 cmt. d). 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 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.
*92¶ 113. The Clauder court elaborated further: "Liability results under the rule stated in this 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." Clauder, 209 Wis. 2d at 699.
¶ 114. 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 direct claims against the Archdiocese and the application of the statute of limitations and the discovery rule: "Because Doe's independent, direct claims 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).
¶ 116. Justice Bradley's reasoning in John Doe 67C applies in the instant case.
* ‡ ‡ ‡
¶ 117. Decades have elapsed since the alleged wrongful conduct of the Archdiocese occurred. But that should not prevent the plaintiffs from having their day *93in court. The plaintiffs shoulder the burden of proving their case against the Archdiocese, including demonstrating that the discovery rule applies to their independent causes of action against the Archdiocese. 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 that Justice ANN WALSH BRADLEY joins this opinion.
Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998).
Doyle v. Engelke, 219 Wis. 2d 277, 291 n.6, 580 N.W.2d 245 (1998).
John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997).
Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995)
Theama v. City of Kenosha, 117 Wis. 2d 508, 527, 344 N.W.2d 513 (1984).
See Finnegan ex rel. Skoglind v. Wis. Patients Comp. Fund, 2003 WI 98, ¶ 44 n.9, 263 Wis. 2d 574, 666 N.W.2d 797 (Abrahamson, C.J., concurring) (discussing how the characterization depends on whether the court is addressing contributory negligence, limits on amount of recovery, or statutes of limitations).
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.
Restatement (Third) of Torts: Apportionment of Liability, § 6 cmt. b (reporter's note) (1999).
Restatement (Third) of Torts: Apportionment of Liability, § 6 cmt. a (1999).
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 ...."
*80In 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."
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.ll.
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).
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.
"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 *82employee was a cause-in-fact of the plaintiffs 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).
John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, 284 Wis. 2d 307, ¶ 21 n.3, 700 N.W.2d 180.
Specifically, the intentional act exclusion indicates that the insurance company" 'won't cover bodily injury ... that's . .. intended by the protected person.'" 219 Wis. 2d at 291 (quoting insurance policy). The "protected person" was the employer.
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.
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.