Lentz v. Young

*474CANE, P.J.

(iconcurring). I concur with the majority's analysis that under the principles enunciated in Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 468 N.W.2d 1 (1991), Lentz's injuries were not the result of an accident. Given the protracted and persistent nature of Young's conduct viewed from Lentz's perspective, I agree that Young's conduct was not unexpected or unforeseen. Consequently, under Jen-son's definition of "accident," Young's continuous intentional sexual harassment of Lentz was not an accident within the meaning of the WCA.

Although I agree with the principle that employers should not be allowed to shield themselves under the WCA from liability for intentional acts, I do not concur with the majority's reasoning where it concludes in effect that the term "accident" in an employer-employee situation is defined differently from the supreme court's definition of accident in Jenson. In Jenson, our supreme court specifically defined the term accident as used in the WCA. The court concluded the term accident must be determined from the perspective of the injured employee, not from the perspective of the person causing the injury. Id. at 264, 468 N.W.2d at 5. However, the majority in our case now redefines the term accident and views this determination from the perspective of the person causing the injury, namely the employer. This is exactly the opposite of what our supreme court did in Jenson. It is not sufficient to say that Jenson involved a co-employee situation and therefore the case is distinguishable. The term accident cannot have two different meanings within the same sentence of the same statute. Therefore, I would affirm the trial court only on the basis that viewing Young's alleged protracted, repeated and persistent misconduct from Lentz's perspective, it was not an *475accident. The remainder of the majority's analysis is nothing more than dicta and, unfortunately, incorrect dicta.