SHIRLEY S. ABRAHAMSON, J.
This appeal is from an order of the circuit court for Milwaukee county which denied defendants' motion to dismiss plaintiffs' second amended complaint, the plaintiffs, James and Linda Scarpaci, brought this action charging wrongful performance of an autopsy on the body of their deceased child, Nicole Scarpaci, the defendants, Milwaukee county and individuals employed by Milwaukee county,
The circuit court denied the motion, holding that "the fallacy in the defendants' motion to dismiss at this time is that judicial immunity is not so broad as to constitute immunity [in] any kind of circumstance." We conclude that the complaint states a claim against the defendants upon which relief can be granted and, accordingly, we affirm the order.
Because this case is here at the pleading stage, the relevant facts are those stated in the complaint. The complaint lists four "causes of action" and also an "alternative cause of action."
In the "first cause of action" the complaint alleges that on or about February 12, 1976, the Milwaukee county medical examiner's office conducted an autopsy on Nicole Scarpaci. It is alleged that not only was the autopsy done without the parents' permission, but it was done after the parents had made it known to the defendants that the parents did not wish an autopsy performed. The complaint then recites:
"Said autopsy was unauthorized and in violation of Wisconsin Statutes 979.121 in that there was no reason to believe from the surrounding circumstances that a situation was present where a coroner's inquest might be had as provided in Wisconsin Statutes 979.01."
The "first cause of action" ends with the allegation that as a result of the acts alleged, plaintiffs suffered
The "second cause of action" incorporates the allegations set forth above and asserts that defendants' conduct in performing the autopsy was unreasonable and not in good faith.
The "third cause of action" incorporates all previous allegations and states that the defendants' conduct was extreme and outrageous and constituted a willful and wrongful invasion of their right to provide a proper burial for their child. Despite the inclusion of the term "willful" in one paragraph of the "third cause of action," another paragraph in that "cause of action" alleges doubt as to whether the actions of defendants were negligent or intentional and states that for purposes of that cause of action, the defendants' conduct is alleged to be negligent. The plaintiffs claim that the autopsy caused the body of the plaintiffs' child to be defiled, which resulted in great outrage upon the sensibilities and emotions of the plaintiffs, great emotional distress and severe disabling response.
The "fourth cause of action" incorporates all previous allegations, recites that defendants acted unreasonably, negligently and not in good faith in performing the autopsy and also in failing to notify the plaintiffs of the autopsy, and asserts that the plaintiffs suffered an extreme disabling emotional response, which was associated with physical injuries.
The complaint names all of the defendants in the above-described allegations and requests that they be jointly and severally liable for compensatory damages of $125,000.
The "alternative cause of action" is asserted against only the individual defendants, not defendant Milwaukee
The obvious reason the alternative cause of action is not asserted against the defendant Milwaukee county is that the statutes provide that no suit may be brought against a political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees. Sec. 895.43(4), Stats.
The defendants' motion to dismiss the complaint for failure of the pleading to state a claim upon which relief can be granted
The motion to dismiss for failure to state a claim, like the previously used demurrer, tests the legal sufficiency of the claim. The facts pleaded and all reasonable inferences from the pleadings are admitted to be true, but only for purpose of testing the legal sufficiency of the claim, not for the purpose of trial. The pleadings are to be liberally construed with a view to substantial justice to the parties. Sec. 802.02(6), Stats.
This court recently set forth the following test to be applied when the issue is the sufficiency of the complaint:
"For the purpose of testing whether a claim has been stated pursuant to a motion to dismiss under sec. 802.06 (2) (f), Stats., the facts pleaded must be taken as admitted. Anderson v. Continental Insurance Co., 85 Wis.2d 675, 683, 271 N.W.2d 368 (1978). The purpose of the complaint is to give notice of the nature of the claim; and therefore, it is not necessary for the plaintiff to set out in the complaint all the facts which must eventually be proved to recover. Id. at 683-84. The purpose of a motion to dismiss for failure to state a claim is the same as the purpose of the old demurrer — to test the legal sufficiency of the claim. Hartridge v. State Farm Mutual Automobile Ins. Co., 85 Wis.2d 1, 4-5, 271 N.W.2d 598 (1978); Anderson, supra, at 683. Because the pleadings are to be liberally construed, a claim should be dismissed as legally insufficient only if `it is quite clear that under no conditions can the plaintiff recover.' Clausen and Lowe, The New Wisconsin Rules of Civil
"Sec. 802.06(2) (f), Stats., on which the motions to dismiss were based, is similar to Rule 12(b) (6) of the Federal Rules of Civil Procedure. A claim should not be dismissed under the Wisconsin rule or the federal rule unless it appears to a certainty that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations. See, Wright and Miller, 5 Federal Practice and Procedure, sec. 1215, p. 113; Conley v. Gibson, 355 U.S. 41, 47-8 (1957)." Morgan v. Pennsylvania General Insurance Co., 87 Wis.2d 723, 731-32, 275 N.W.2d 660 (1979).
Initially we must comment that the second amended complaint cannot be characterized as a model of good draftsmanship. It is vague and gives only a bare-bone statement of facts. We are not told the age of the deceased child, the circumstances of the death or the circumstances of the autopsy. Nevertheless, construing pleadings liberally, we conclude that the complaint states a claim upon which relief may be granted.
Although the complaint separates the allegations into four causes of action and an alternative cause of action, for purposes of determining whether the complaint states a claim the complaint should be treated as if it charges essentially three wrongs: (1) The body of the plaintiffs' child was mutilated by the negligent or intentional conduct of the defendants in the manner of conducting the
Before we discuss each of the three wrongs, we must turn first to consider the nature of the cause of action of the next of kin of the decedent against one who mutilates the body of the decedent; the duties and powers of the medical examiner; and sec. 895.43(4), Stats., governing
The law is clear in this state that the family of the deceased has a legally recognized right to entomb the remains of the deceased family member in their integrity and without mutilation. Thus the next of kin have a claim against one who wrongfully mutilates or otherwise disturbs the corpse. This issue was settled in Wisconsin in 1905 in the case of Koerber v. Patek, 123 Wis. 453, 102 N.W. 40 (1905), in which this court recognized the interest of the living in the bodies of the dead, saying:
". . . We can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed; none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency. . . ." 123 Wis. at 463.
The basis for recovery of damages is found not in a property right in a dead body but in the personal right of the family of the deceased to bury the body. The mutilating or disturbing of the corpse is held to be an interference with this right and an actionable wrong.
The law is not primarily concerned with the extent of physical injury to the bodily remains but with whether there were any improper actions and whether such actions caused emotional or physical suffering to the living kin. The tort rarely involves pecuniary injury; the generally recognized basis of damages is mental suffering.
Because Koerber involved a complaint alleging intentional misconduct, the court was not faced with the issue of a cause of action for negligent mutilation or negligent disturbance of the body. The court did, however, apparently recognize that a cause of action exists for a negligent act,
"In negligent torts, mental distress is compensable only when there is an accompanying or resulting physical injury. Ver Hagen v. Gibbons, 47 Wis.2d 220, 177 N.W.2d 83 (1970). In intentional torts, substantial other damages in addition to damages for emotional distress are required. D.R.W. Corp. v. Cordes, 65 Wis.2d 303, 222 N.W.2d 671 (1974). Where the tort is specifically that of the intentional infliction of emotional distress, no other damages need be alleged or proved. . . ."
Because the complaint in the instant case asserts that the defendants' negligent or intentional interference with the right of the parents to bury the body caused the plaintiffs both great emotional distress and physical injuries, we conclude that the complaint is sufficient to survive the initial test of a motion to dismiss.
The defendants argue that Koerber v. Patek, which held that a cause of action was stated for mutilation of the corpse, is inapposite to the case at bar, because that case involved a private individual performing an autopsy and the present case involves a public officer who is empowered to perform autopsies and who is granted immunity from personal liability by statute.
The medical examiner's authority to perform an autopsy is limited by statute. Absent a statutory basis for an autopsy, the medical examiner has no power to conduct or order an autopsy.
The Milwaukee county medical examiner is appointed by the county board of supervisors, pursuant to sec. 59.34 (1), Stats.; the constitution abolished the elective office of coroner in Milwaukee county.
Sec. 979.121, Stats., grants the medical examiner the authority to conduct an autopsy or order an autopsy upon the body of a dead person "in cases where a coroner's inquest might be had as provided in s. 979.01 notwithstanding that no such inquest is ordered or had."
The legislature has also empowered the medical examiner to conduct or order an autopsy if the body is to be cremated. Sec. 979.19(2), (5), Stats., provides that it is the duty of the medical examiners where the body is to be cremated "to make a careful personal inquiry into the cause and manner of death, and conduct an autopsy or order the conducting of an autopsy, if in their opinion it is necessary to determine the cause and manner of death."
The medical examiner is thus not empowered in Wisconsin to conduct an autopsy to inquire into the cause and manner of every death in this state. However well-motivated may be the medical examiner, and however significant may be the result of his autopsy to medical science, the medical examiner's power to conduct an autopsy is limited by law to specified circumstances. The law protects the feelings and emotions of the next of kin by not allowing interference with the body by government officials except in certain specified circumstances.
The defendants argue that the motion to dismiss in the case at bar must be granted because their acts are done in the exercise of quasi-judicial functions, and that sec. 895.43(4), Stats., renders them immune from suit.
Sec. 895.43(4), Stats., states:
"No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." (Emphasis supplied.)
The language which we used in Holytz exempting municipal governmental units from liability for "quasi-judicial" functions has been incorporated by the legislature into sec. 895.43(4), which relates to immunity from tort liability for both governmental units and public officers.
The plaintiffs apparently agree with the defendants that the medical examiner's decision to conduct or order an autopsy is a quasi-judicial function, but the plaintiffs contend that sec. 895.43(4) does not render the medical
On the basis of our prior cases we conclude, as did the parties, that the medical examiner's discretion in determining whether to conduct or order an autopsy can be classified as a quasi-judicial function for purposes of sec. 895.43(4), Stats. In Lifer v. Raymond, 80 Wis.2d 503, 512, 259 N.W.2d 537 (1977), which involved the issuance of a motor vehicle driver's license by a state officer, we said that "[a] quasi-judicial act involves the exercise of discretion and judgment in the application of a rule to specific facts. . . . As applied, the terms `quasi-judicial or quasi-legislative' and `discretionary' are synonymous and the two tests result in the same finding."
This court has held that the district attorney's decision whether to order an inquest under sec. 979.01, Stats., is based on his subjective determination that there is reason to believe the requisite circumstances exist. We characterized the district attorney's discretion as quasi-judicial in State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378, 381-383, 166 N.W.2d 255 (1969), and in Mohrhusen v. McCann, 62 Wis.2d 509, 512, 215 N.W.2d 560 (1974). Because the medical examiner has authority under sec. 979.121, Stats., to conduct or order an autopsy in the same circumstances in which an inquest can be ordered under sec. 979.01, Stats., applying the reasoning of Kurkierewicz and Mohrhusen, we conclude that the medical examiner's decision concerning an autopsy must also be based on his subjective determination that there is reason to believe the requisite circumstances exist.
Turning to the first of the three wrongs alleged in the complaint, we must determine whether the defendants are immune from tort suit for alleged misconduct during an autopsy causing mutiliation of the body.
Although the decision whether to conduct or order an autopsy is quasi-judicial, not every act of the medical examiner relating to an autopsy is necessarily classified as quasi-judicial for which the examiner is immune from personal liability. The court must inquire into the nature of the alleged wrongful act to determine if the particular act in question is quasi-judicial. We said that it is the categorization of the specific act upon which liability is based and not the categorization of the general duties of the public officer which dictates whether or not the officer is immune from liability under sec. 895.43(4), Stats.
In Coffey v. Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976), county and city officials argued that the overall enforcement of a building code is quasi-judicial in nature, that the physical inspection of a building is a quasi-judicial act and that public employees could not be
Similarly, in Chart v. Dvorak, 57 Wis.2d 92, 203 N.W.2d 673 (1973), we pointed out that once a legislative or quasi-legislative decision is made, which decision in itself would be immune from the imposition of tort liability, the officer who made the decision may nevertheless be subject to liability as a public officer for breach of a ministerial (not quasi-legislative) duty imposed by that decision.
As we said previously, the complaint in the instant case can be read to state a claim against the defendants for misconduct in the manner in which the autopsy was performed. We do not think the doctrine of immunity has application to this type of tort because the actual performance of an autopsy, although involving judgment and discretion, does not involve the judgment and discretion encompassed in the term "quasi-judicial" as used in sec. 895.43(4), Stats.
The defendants' acts in performing the actual procedure of an autopsy are discretionary in nature, but the discretion is medical, not governmental. The theory underlying the creation of immunity for government officials is that immunity will foster the fearless, vigorous and effective administration of policies of the government. That theory is not applicable to the exercise of normal medical discretion during an autopsy. The theory
The Comments in the Restatement of Torts (Second) (1977) relating to government immunities, explain the concept of governmental and non-governmental discretion as follows:
"It is only when the conduct involves the determination of fundamental governmental policy and is essential to the realization of that policy, and when it requires `the exercise of basic policy evaluation, judgment and expertise' that the immunity should have application . . . . The purpose of the immunity is `to insure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government . . . [if] such a policy decision, consciously balancing risks and advantages, took place.'" See Comment d. to sec. 895B, p. 403; Comment g. to sec. 895C, p. 410; Comment d., sec. 895D, p. 413, 4 Restatement of Torts (Second) (1977).
The Tenth Circuit Court of Appeals recently had occasion to rule on a claim similar to that involved here. It held that an Air Force physician was not immune from liability for negligence in the treatment of the plaintiff, explaining:
"We recognize that medical treatment involves judgment and discretion. This does not resolve the matter, however, because medical treatment by a government doctor does not necessarily involve governmental discretion . . . . [T]he type of discretion necessary to immunize official conduct must be governmental not medical discretion." Jackson v. Kelly, 557 F.2d 735, 738-39 (10th Cir. 1977).
Compare Martinez v. Schrock, 537 F.2d 765 (3d Cir. 1976).
Thus we hold that the claim for misconduct in the manner in which the autopsy was performed is not barred by sec. 895.43(4), Stats., because the claim is not based on acts that are of a quasi-judicial nature.
We turn now to the second of the wrongs set forth in the complaint, namely that the autopsy was "unauthorized" and "in violation of Wisconsin Statutes 979.121 in that there was no reason to believe from the surrounding circumstances that a situation was present where a coroner's inquest might be had as provided in 979.01."
The defendants, in their briefs and in oral argument, assert that this allegation states a legal conclusion, not facts. In the defendants' view the complaint states no facts showing that the performance of the autopsy was outside the defendants' statutory authority. At oral argument, the defendants pointed out that the complaint had no allegations, for example, that the autopsy was performed for purposes of medical research or for purposes of self-edification, both purposes being beyond the statutory limitations on the defendants' authority to conduct an autopsy.
We agree with the defendants that the assertion that the defendants acted "in violation of Wisconsin Statutes 979.121," states a legal conclusion. However we disagree with the defendants that the allegation that "there was no reason to believe from the surrounding circumstances that a situation was present where a coroner's inquest might be had as provided in 979.01" states a legal conclusion. This allegation is one of fact as can be better understood by turning again to ch. 979, Stats., which sets forth the powers and duties of the medical examiner. As we stated previously, secs. 979.01 and 979.121, Stats.,
Plaintiffs' allegation that there was no reason to believe that a situation was present where a coroner's inquest could be had as provided in sec. 979.01 is as much of a factual allegation as would be an allegation that there was no reason to believe a murder had taken place, that there was no reason to believe manslaughter had occurred, and so forth. That plaintiffs used a catch-all allegation rather than negativing individually all of the circumstances listed in sec. 979.01 does not make their allegation a legal conclusion. We read the allegation as if it negatives all of the circumstances listed in sec. 979.01. Thus the complaint is read to include the allegation that the defendants had no reason to believe that the death may have been due to "unexplained or suspicious circumstances." Reading the complaint in this manner is troublesome because negativing an "unexplained" death is, in effect, intimating that the cause of death is known. The complaint, however, does not state that the cause of death is known; it does not set forth the cause of death or the circumstances of the death. But the plaintiffs are not required to plead all the facts that they may have to prove at trial to recover damages.
The reasonable factual inferences to be drawn from the summary factual allegation that the medical examiner had no reason to believe any of the 979.01 circumstances existed are that the medical examiners conducted the autopsy even though (1) they reached no subjective determination whether there was any reason to believe that death was due to any of the circumstances
As we have previously stated, sec. 979.01, Stats., and sec. 979.121, Stats., read together, provide that the medical examiner may order an autopsy if "there is any reason to believe . . . that death may have been due to . . . unexplained or suspicious circumstances." Prior to an amendment several years ago, the statute read "any good reason."
This court has not interpreted the language "any reason to believe" in relation to autopsies or to medical examiners or to tort cases, but we have interpreted the language in relation to the district attorney of Milwaukee county, inquests, and judicial review of the decisions of the district attorney. See State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 166 N.W.2d 255 (1969) and Mohrhusen v. McCann, 62 Wis.2d 509, 215 N.W.2d 560 (1974). Our interpretation of the language "any reason to believe" in Kurkierewicz and Mohrhusen is applicable to interpreting the powers of the medical examiner in ordering or conducting an autopsy. We held in those cases that the legislature did not intend to set an objective standard of what constitutes a sufficient reason for the medical examiner to believe that certain circumstances existed. Rather the legislature intended the medical examiner to make a subjective determination. A subjective determination "is not to say that his decision may rest upon prejudice or caprice. Discretion of a limited nature is conferred upon him by this statute, and there must be evidence that discretion was in fact exercised." State ex rel. Kurkierewicz, supra, 42 Wis.2d at 384. See pp. 11-12, supra.
Although we have looked to the Kurkierewicz and Mohrhusen cases to aid us in interpreting the powers
The rights and obligations of plaintiffs and defendants in a suit for declaratory judgment or for a writ of prohibition or mandamus may be different from their rights and obligations in a tort suit. This court, may, for example, conclude in an action for a writ that an act of a public officer is invalid for various reasons. Nevertheless the public officer is not necessarily subject to tort liability for such an invalid act. We expressed a similar idea in Lister v. Board of Regents, 72 Wis.2d 282, 304, 240 N.W.2d 610 (1976), when we said:
"[A] finding that certain allegations are sufficient to overcome the procedural impediment to maintaining declaratory judgment actions against the state should not control the consideration of whether the officer's conduct is outside his jurisdictional authority for the purpose of removing the substantive bar to personal liability for damages. An officer's immunity from liability for damages does not affect his amenability to suit for declaratory or injunctive relief. The public policy considerations which have prompted the courts to grant the substantive immunity do not apply with equal force to actions for such relief."
The trial court's construction of sec. 895.43(4), Stats., conforms to the language of sec. 895.43, and to the common law. Sec. 895.43(1), (3), and (5), Stats., governs actions against the municipal government entity or against public officers "for acts done in their official capacity or in the course of their agency or employment." This language would indicate that sec. 895.43(4), Stats., renders the municipal government entity and public officers immune for acts done in the exercise of quasi-judicial functions only if the acts were done by public officers "in their official capacity or in the course of their agency or employment."
The common law rule is that when a public officer acts outside his jurisdiction, that is, acts in clear absence of all jurisdiction, he is liable for his acts just as is any private individual, and he is not entitled to protection because of his office. This court, like other courts, has made a distinction between those acts which are outside the officer's jurisdiction or authority and those acts which constitute negligence or a mistake of judgment within the officer's lawful jurisdiction. In Pavlik v. Kinsey, 81 Wis.2d 42, 49, 259 N.W.2d 709 (1977), we explained the general rule of immunity of a public officer in this state as follows:
"`The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty.'"
The immunity of public officers who perform quasi-judicial functions is, to a large extent, based on the same public policy which grants immunity to judicial officers. The governing principle applicable to judges is that the judge is subject to tort liability for acts outside the
"A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority . . . But where jurisdiction over the subject-matter is invested by law in the judge, . . . the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions . . . ." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352 (1872).
In Pierson v. Ray, 386 U.S. 547, 553-554 (1967), the United States Supreme Court stated that "[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their jurisdiction . . ."
Again more recently in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978), in order to determine whether the judge was immune from personal liability for ordering sterilization of a young woman, the Court had to make the necessary inquiry into whether the judge at the time he took the challenged action had jurisdiction over the subject matter before him. The Court said that the judge will not be deprived of immunity because the judge's action "was in excess of his authority; rather, he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.' 13 Wall., at 351." Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105 (1978).
The immunity defense turns, therefore, on whether the autopsy was within the defendants' lawful jurisdiction or was outside defendants' jurisdiction. In other words, the question is whether the complaint states facts showing that the medical examiners' acts were merely in excess of jurisdiction or in a clear absence of all jurisdiction.
We must turn again to the statutes to determine the jurisdiction of the medical examiner to perform autopsies. As we have stated previously, we construe secs. 979.01 and 979.121, Stats., to require that the medical examiner must, prior to an autopsy, make a subjective determination that there is reason to believe that any of the circumstances listed in sec. 979.01 exists. We further construe secs. 979.01 and 979.121 as making this subjective determination by the medical examiner an essential prerequisite to the jurisdiction of the medical examiner to conduct or order an autopsy. State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 380, 166 N.W.2d 255 (1969); Mohrhusen v. McCann, 62 Wis.2d 509, 215 N.W.2d 560 (1974). Accordingly we conclude that a medical examiner acts outside his jurisdiction when he orders or conducts an autopsy either without having made a subjective determination that there is any reason to believe that any of the statutory circumstances justifying an
The determination of whether the individual defendants acted outside the scope of their jurisdiction in the instant case will rest on the trial court's determining whether the medical examiner exercised his discretion and made a subjective determination that he had any reason to believe that any circumstances under sec. 979.01, Stats., existed. If the medical examiner subjectively determines that there is any reason to believe that a circumstance listed in sec. 979.01 exists, and he conducts or orders an autopsy, the medical examiner is protected against suit for his quasi-judicial decision, even if his decision that there is any reason to believe that one of the circumstances listed in sec. 979.01 exists proves to be erroneous. Thus, if the plaintiffs prove only that the medical examiner's belief that the death was unexplained or suspicious was erroneous, the plaintiffs' claim must fail. We take care in pointing out that the determination of whether the individual defendants acted outside the scope of their jurisdiction in conducting or ordering an autopsy in the instant case does not rest on the trial court's or this court's second-guessing the medical examiner as to whether in the instant case there was any reason to believe that any of the circumstances set forth in sec. 979.01, Stats., exist. It is for the medical examiner, not for the courts in a tort action against the examiner, to determine whether there is any reason to believe that the circumstances set forth in sec. 979.01, Stats., exist. Later in the opinion we discuss the issue of the tort liability of the medical examiner if he errs in determining that the specified circumstances exists and he acts with malice or in bad faith.
We read the complaint as alleging that the medical examiner ordered an autopsy either without any subjective
Because the complaint does not set forth detailed facts as to the circumstances of the death or autopsy, because we have not previously interpreted the language "while carrying out duties as an officer or employe and the jury employment" as used in sec. 895.46(1), and because of the paucity of discussion of this issue in the briefs, we believe the determination of the liability of Milwaukee County under sec. 895.46(1), Stats., for the acts of a medical examiner acting outside his jurisdiction should be made at a later time by the trial court.
We refer to summary judgment not to indicate our views on the merits of making or granting such a motion, which, of course, would depend on the facts of the case, but to respond to the defendants' apparent contention that immunity is essential to save the defendants from the excessive burden of a trial, even when the defendants are acting outside the scope of their jurisdiction.
Lastly we consider the third wrong set forth in the complaint. The complaint asserts that the defendants erred in their subjective determination that there was reason to believe that one or more of the circumstances listed in sec. 979.01, Stats., justifying an autopsy existed and that the defendants are liable for their negligence, error or mistake of judgment because they acted "not in good faith." This court has not yet determined whether the immunity granted by sec. 895.43(4), Stats., to public officers for negligent acts within the scope of jurisdiction done in the exercise of quasi-judicial functions encompasses conduct which is malicious or corrupt. Although we have in several cases considered the common
In Abdella v. Catlin, 79 Wis.2d 270, 279, 255 N.W.2d 517 (1977), overruling language in a prior case, we held that judges are immune from tort liability for acts which are within the scope of their jurisdiction, although erroneous and even malicious. We said that "even direct allegations of collusion and direction are not sufficient to breach the wall of judicial immunity where a judge is sued as to the acts committed in his judicial capacity . . . ."
This court has not, however, decided whether any or all government officers exercising quasi-judicial functions are immune under common law from tort liability for mistakes in judgment if there is malicious, willful or intentional misconduct on the part of the government officer. Although there is language in several cases that a government officer exercising a quasi-judicial function is immune from tort liability for error or mistake of judgment only "in the absence of a corrupt or malicious motive," this court's statements on the effect of malice on immunity have not been consistent. In some cases the court has indicated that the immunity of the officer is qualified, that is, he is personally liable if he errs and acts with a malicious motive. See, e.g., Corrao v. Mortier, 7 Wis.2d 494, 499, 96 N.W.2d 851 (1959); Bendorf v. Darlington, 31 Wis.2d 570, 578, 143 N.W.2d 449 (1966); Allstate Ins. v. Metropolitan Sewerage Comm., 80 Wis.2d 10, 17-18, 258 N.W.2d 148 (1977). But in Wasserman v. Kenosha, 217 Wis. 223, 226, 258 N.W. 857 (1935), a suit to recover damages from municipal officers for the cancellation of a building permit, this court held that quasi-judicial officials, "within their jurisdiction, are not liable for damages either for mistake, errors of judgment, or corrupt conduct."
The commentators note that there is a division of authority on the question whether a quasi-judicial officer should be given immunity where he does not act in good faith but rather acts with malice or for an improper purpose. The justification for granting a quasi-judicial officer "absolute immunity," that is, immunity where the officer is charged with improper motive or malice, is not to protect public officers who have in fact acted willfully and maliciously, but to protect all public officers, the innocent as well as the guilty, from the burden of a trial, which burden might intimidate all public officers and hinder them in the courageous performance of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).
This third claim of the plaintiffs raises an important issue of statutory interpretation and public policy, namely whether the mere threat of suit on the grounds of malice would unduly inhibit the work of medical examiners and would be contrary to the public interest of fostering the free, independent, forceful discharge of the important duties of medical examiners. We believe the decision whether the medical examiner has "absolute" immunity or "qualified" immunity under sec. 895.43(4), Stats., is better made initially, not by this court at the pleading stage, but by the circuit court upon an evidentiary record. Cf. Coffey v. Milwaukee, 74 Wis.2d 526, 541, 247 N.W.2d 132 (1976).
By the Court. — Order affirmed.
CONNOR T. HANSEN, J. (concurring).
I concur with the result reached by the majority in this case. However, I am unable to join in the opinion of the court.
This is an appeal from an order denying a motion to dismiss the amended complaint. Therefore, the single issue before this court is whether the complaint states any claim upon which relief can be granted, and this court is not required to determine whether the complaint states more than one claim for relief. Attoe v. Madison Pro. Policemen's Asso., 79 Wis.2d 199, 205, 255 N.W.2d 489 (1977). The majority determined that the complaint states a claim against the defendants for negligent or intentional misconduct in the manner in which the autopsy was performed. Once a determination was made that the complaint adequately alleges a claim for relief, it was unnecessary for the majority to address the allegations constituting the second and third claims for relief. Moreover, in discussing the sufficiency of the second and third claims for relief, the opinion sets forth an extensive review of the powers of a medical examiner and the immunity of public officers, most of which is inappropriate and unnecessary since the only issue before this court is whether the pleadings set forth any facts upon which relief can be granted.
It is my opinion that in the instant case the court should direct its attention to the issue of the appeal in considering the review of an order denying a motion to dismiss a complaint. There is no need for this court to determine whether the complaint states several claims for relief. Neither is there any necessity to expound on the legal principles relating to the various theories of
Therefore, although I concur in the result reached by the majority, I respectfully decline to join the opinion.
The plaintiffs gave notice of injury pursuant to sec. 895.43, Stats., and notice of claim. The Milwaukee County Board of Supervisors disallowed the claim.
"Every defense, in law or fact . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (f) failure to state a claim upon which relief can be granted . . . ."
"No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."
"CONSTRUCTION OF PLEADINGS. All pleadings shall be so construed as to do substantial justice."
"One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body."
"Where the defendant's negligence causes only mental disturbance, without accompanying physical injury or physical consequences, or any other independent basis for tort liability, there is still general agreement that in the ordinary case there can be no recovery.
". . .
"In only two groups of special cases has there been any tendency to break away from the settled rule, and to allow recovery for mental disturbance alone. In one of them a respectable minority of the courts allow recovery against a telegraph company for the negligent transmission of a message, such as one announcing death, which indicates upon its face that there is an especial likelihood that such mental distress will result. . . . The other group of cases has involved the negligent mishandling of corpses. Here the older rule denied recovery for mere negligence, without circumstances of aggravation. There are by now, however, quite a series of cases allowing recovery for negligent embalming, negligent shipment, or running over the body, and the like, without such circumstances of aggravation, which now are in the majority. What all of these cases appear to have in common is an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. There may perhaps be other such cases. Where the guarantee can be found, and the mental distress is undoubtedly real and serious, there is no essential reason to deny recovery. But cases will obviously be rare in which `mental anguish,' not so severe as to cause physical harm, will be so clearly a serious wrong worthy of redress, or sufficiently attested by the circumstances of the case." (Emphasis supplied.)
Comment a to sec. 868, 4 Restatement of Torts (Second) (1977), quoted in note 7 supra, explains that the tort of interference with the body of a dead person does not fit well into the category of interference with a property right, and is in reality a cause of action for mental distress. Sec. 868 does not require a showing of physical harm and permits damages to be recovered for mental distress. However recovery is also allowed for physical harm resulting from mental distress.
The South Dakota Supreme Court in Chisum v. Behrens, 283 N.W.2d 235 (S.D. 1979), refused to follow sec. 868 of the Restatement. The court held that where there was negligent rather than willful interference with the body damages for mental anguish cannot be sustained where there has been no accompanying physical injury. See also, Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700 (Mo. Ct. App. 1978), where the court held that the mortuary's conduct was outrageous and reckless causing severe emotional distress under sec. 46 of the Restatement and allowed recovery for mental anguish. One judge concurred, stating that the conduct was negligent, and he would allow recovery for mental anguish.
For a discussion of the predecessor of chapter 979, see Comment, The Wisconsin Coroner System, 1951 Wis. L. Rev. 529.
"(2) It shall be the duty of the respective coroners of this state, in any case where the body is to be cremated, to make a careful personal inquiry into the cause and manner of death, and conduct an autopsy or order the conducting of an autopsy, if in their opinion it is necessary to determine the cause and manner of death, and thereupon certify that no further examination or judicial inquiry concerning the same is necessary, if so satisfied, otherwise, or in the event of doubt to proceed as otherwise provided by law.
". . .
"(5) All the powers and duties granted to or imposed upon the coroner or his deputy in this section are vested in the medical examiner appointed under s. 59.34(1), except that said medical examiner shall not be entitled to the fees provided by sub. (3)."
Compare secs. 895C and 895D, 4 Restatement of Torts (Second) (1977) which provide as follows:
"(1) Except as stated in Subsection (2), a local government entity is not immune from tort liability.
"(2) A local governmental entity is immune from tort liability for acts and omissions constituting
"(a) the exercise of a legislative or judicial function, and
"(b) the exercise of an administrative function involving the determination of fundamental governmental policy.
"(3) Repudiation of general tort immunity does not establish liability for an act or omission that is otherwise privileged or is not tortious."
"(1) Except as provided in this Section a public officer is not immune from tort liability.
"(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
"(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
"(a) he is immune because engaged in the exercise of a discretionary function,
"(b) he is privileged and does not exceed or abuse the privilege, or
"(c) his conduct was not tortious because he was not negligent in the performance of his responsibility."
The draftsmen of the Restatement of Torts apparently distinguish between quasi-judicial functions and discretionary functions. See sec. 895D, quoted at note 17, supra, and comments c and f, 4 Restatement of Torts (Second) 413, 415-417 (1977). See also Gildea v. Ellershaw, 363 Mass. 800, 298 N.E.2d 847, 859-860 (Mass. 1973), which recognizes that public officers are armed with the authority and charged with responsibility for making decisions which are judgmental and discretionary for which they should not be subject to liability but that the decisions may not be judicial or quasi-judicial in nature. See Comment, The Discretionary Function Exception to Government Tort Liability, 61 Marq. L. Rev. 163 (1977).
"[W]e hold that the law of the Commonwealth should be, and therefore is, that if a public officer, other than a judicial officer,
". . . We recognize, of course, that public welfare may and does require governmental control in many respects for protection of life and health of the people, and for discovery of crime connected with the death of a person, and to such interests the private right is subservient so far as necessary. Upon this ground rest cases of autopsies upon dead bodies under public authority, and to satisfy police regulations for ascertainment of cause of death. Young v. College, 81 Md. 358, 32 Atl. 177; Cook v. Walley, 1 Colo. App. 163, 27 Pac. 950; Palmer v. Broder, 78 Wis. 483, 47 N.W. 744. Even such authority must be exercised lawfully and reasonably. Palenzke v. Bruning, 98 Ill.App. 644." 123 Wis. at 463 (Emphasis supplied.)
In Palenzke v. Bruning, 98 Ill.App. 644, the last case cited in Koerber above, the Illinois court held that a complaint against a coroner seeking damages for an unauthorized autopsy was sufficient to withstand a demurrer. The court stated that the coroner could not justify his actions on the basis of his public office because he had no authority to direct an autopsy at his mere whim or caprice but could only direct one where a preliminary investigation disclosed that death appeared to be due to violence, casualty or undue means, the language of the statute relating to the performance of autopsies.
Although apparently we have not had a case involving the issue of the public officer's tort liability in an action based on the unauthorized performance of an autopsy, the question has arisen in other jurisdictions, and our decision today appears to be in accord with decisions of those jurisdictions. See, e.g., Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163 (1938); Crenshaw v. O'Connell, 235 Mo. App. 1085, 150 S.W.2d 489 (1941); Rupp v. Jackson, 238 So.2d 86 (Fla. 1970).
We point out that a motion for summary judgment may dispose of the question of malice promptly in the instant case. See Davis, Administrative Law Treatise sec. 26.04, p. 529 (1958).