APPEALS
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Ann Knopf appeals a summary judgment dismissing her counterclaim against Christopher Brekken and her third-party complaint against Cheryl Brekken in which she sought contribution from Jacob Brekken’s parents for failure to supervise Jacob, resulting in Knopf’s sexual assault of him. We affirm the summary judgment because Knopf’s counterclaim and third-party complaint failed to state a claim for which relief can be granted and her claims are barred by public policy.[1]
Background
¶2 Knopf worked as a substitute teacher at thirteen-year-old Jacob’s school. In Christopher’s and Jacob’s complaint, they allege Knopf negligently and intentionally harmed Jacob by engaging in sexual relations with him. In her counterclaim and third-party complaint, Knopf seeks contribution from Jacob’s divorced parents, Christopher and Cheryl, asserting their focus on determining who Jacob was involved with rather than stopping the contact constituted negligent supervision.
¶3 Christopher and Cheryl share joint custody of Jacob. Between January and May 2007, Knopf and Jacob
corresponded extensively via e-mail, instant messenger, telephone and
face-to-face interaction. Based on
comments from other students and friends, changes in Jacob’s habits and
discovery of an empty condom wrapper in Jacob’s belongings, his parents began
to suspect their son was involved in an inappropriate relationship. They began to monitor him more closely. Christopher installed spyware on the computer
Jacob used to intercept his communications.
This effort yielded a set of e-mail communications between Jacob and an
individual calling herself “Mara S,” and extensive transcripts of exchanges
between Jacob and an individual calling herself “
¶4 During this time, Jacob’s parents spoke on a daily basis
about their investigations, but lacked complete certainty about who “Mara S”
and “
¶5 Late on the night of May 17, 2007, Cheryl got up to check on Jacob and discovered he was missing. She called Christopher at 11:55 p.m. and notified him Jacob was gone. Christopher came over to Cheryl’s residence and noticed her car was also missing. Christopher then drove to Knopf’s house and found Cheryl’s car nearby. Christopher confronted Knopf and she denied seeing Jacob. Christopher then called the sheriff. Shortly after 1:00 a.m., Jacob appeared at the scene with the zipper of his jeans open. Under questioning, Jacob stated that he had repeated sexual intercourse with Knopf.
Analysis
¶6 On summary judgment, the court’s first duty is to examine the
pleadings to determine whether they state a claim. Grams v. Voss, 97
¶7 Construing Knopf’s pleadings as raising a claim that the Brekkens negligently failed to protect Jacob, she fails to state a claim because she identifies no negligent act by Jacob’s parents and because public policy bars her attempt to deflect blame for her sexual assault of Jacob. Knopf seeks contribution from Jacob’s parents alleging they “should have been more concerned about preventing the alleged ‘sexual assault’-by stopping it-than about finding out ‘for sure who it was.’” She contends the length of her relationship with Jacob and the frequency of their communications should have alerted his parents to her misconduct and therefore they are blameworthy for failing to protect him.
¶8 When a child comes to harm, it is often possible to imagine
ways parents could have been better protectors.
However, we agree with the observation that the mere existence of a
claim for failure to protect a child is not intended “to transform parents from
caregivers and disciplinarians into jailers and insurers of their minor
children.” Williamson v. Daniels,
748 So. 2d 754, 761-62 (
¶9 Although we rarely preclude liability on public policy
grounds at the summary judgment stage, the facts have been sufficiently
developed and the public policy is sufficiently clear for this court to make
the determination at this stage. See Sawyer
v. Midelfort, 227
¶10 Knopf concedes she would not be permitted to seek contribution
from Jacob’s parents for her intentional tort.
She argues, however, that she may do so because Christopher’s and
Jacob’s complaint also alleged negligence.
Negligent sexual molestation is an oxymoron. C. L. v. School Dist. of Menomonee Falls,
221
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Knopf’s
brief raises additional issues (lack of a guardian ad litem for Jacob and use
of issue preclusion) that were not presented to the circuit court. This court will not consider issues raised
for the first time on appeal. See Wirth
v. Ehly, 92