Salerno v. City of Racine

Decision Date05 February 1974
Docket NumberNo. 310,310
Citation62 Wis.2d 243,214 N.W.2d 446
PartiesVannio SALERNO, Appellant, v. CITY OF RACINE, a municipal corp., et al., Respondents.
CourtWisconsin Supreme Court

Kolbe, Sharp & Arena, Racine, for appellant; Duane L. Arena, Racine, of counsel.

Jack Harvey, City Atty., Edward A. Krenzke, Deputy City Atty., Racine, for respondents.


The plaintiff sees two roads open to the destination of municipal liability for the use of excessive force in making an arrest by a city police officer. Both are blocked by the same statute. 1

INTENTIONAL TORT. No challenge is raised on appeal to the trial court's sustaining the city's demurrer to the plaintiff's first cause of action based on the alleged commission of an assault and battery by an agent or employee of the city. Sec. 895.43(3), Stats., provides that no suit may be brought against a city for the intentional torts of its employees. Assault and battery constitutes an intentional tort. 2 The trial court sustained the city's demurrer to the first cause of action, holding that sec. 895.43(3), Stats., establishes municipal immunity against action for intentional torts of its employees. We agree that it does.

DUTY TO DISCHARGE. The second cause of action is based on the claim that the city negligently retained the police officer involved in its employ after he had 'demonstrated a propensity to use excessive force.' At the demurrer stage, we will assume, as the complaint alleges, that the city 'knew or should have known of said propensities.' For the purpose of this discussion, we will assume both the existence of a duty owed by the city to plaintiff and its breach by the city not seeking to remove the officer involved from police service. 3 We need not determine whether such breach of duty would be separate and distinct from an employer's responsibility under respondeat superior. 4 For the threshold question becomes whether the city's earlier failure to seek and accomplish the discharge of the police officer referred to involves performing a quasi-judicial function. Sec. 895.43(3), Stats., precludes any suit against any municipality in this state 'for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.'

In sustaining the city's demurrer to the second cause of action, the trial court held that '. . . the discharge of the officer would necessarily entail quasi-judicial action by the Board of Police and Fire Commissioners after the filing of a complaint.' Actually, the removal of an officer from police service involves three steps: (1) The filing of a complaint; 5 (2) the holding of a hearing by the commission; 6 and (3) the selection of removal or discharge as the appropriate penalty by the commission. 7 If the duty owed by the city was to not retain the officer in police service and if the breach of duty was in not accomplishing earlier his removal, all three steps are involved in the claim of failure to act. The bringing of a complaint, the conducting of a hearing and the imposition of the penalty of removal from the service are alike required for the result of discharge of a violence-prone member of a police force.

In a recent case where a complaint was filed by the chief of police and, following a hearing, the fire and police commission ordered the discharge of a police officer, this court termed the proceedings 'a quasi- judicial function.' 8 Plaintiff counters that, while this may properly describe the filing of charges and conducting the hearing, it is not appropriate to definitively describe not filing a complaint and not conducting a hearing. Police chief, commission, commissioner or elector are not required to file a complaint. 9 This court has said that a police chief has the duty to file charges against department offenders 'when he considers their conduct is detrimental to the public service.' 10 It follows that the chief and commissioners have the right not to file charges unless such chief or commissioners consider conduct brought to their attention to be detrimental to the public service. In this state a prosecuting attorney has the right to order or not to order a coroner's inquest. 11 Upholding the right of a district attorney not to order an inquest, this court stated that the discretion involved 'approaches the quasi-judicial.' 12 The reference is not alone to the prosecutor's ordering of an inquest. It applies as well to a prosecutorial decision not to order an inquest. Not to file charges against a police officer is an exercise of a discretionary right by the public official involved just as much and just as clearly as would be the filing of charges. Filing or not filing can be challenged, 13 but not on the basis that electing not to file charges is somehow something entirely different than deciding to file such charges. As the trial court stated in its opinion, '. . . only complete removal from the force . . . would remove the offending officer from employment.' As to the police and commission members, the determining to file or not to file is related to, in fact, an integral part of the procedure for disciplinary proceedings against police officers. From the filing or not filing of charges, through the hearing to the imposition of appropriate penalty, the entire procedure of disciplinary proceedings against police department members is within the scope of the statutory reference to acts done in the exercise of a quasi-judicial function. The trial court sustained the city's demurrer to the second cause of action, holding that sec. 895.43(3), Stats., applies, establishing municipal immunity against actions for negligence for acts done in the exercise of quasi-judicial functions. We agree that it does.

Order affirmed.

1 Sec. 895.43(3), Stats., providing as follows: 'No suit shall be brought against any political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor shall any suit be brought against such fire company, corporation, subdivision or agency or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.'

2 See: Strong v. Milwaukee (1968), 38 Wis.2d 564, 157 N.W.2d 619 (holding false arrest and false imprisonment to be an 'intentional tort,' precluding direct action against the municipality); and Nelson v. Milwaukee (1973), 57 Wis.2d 166, 203 N.W.2d 684 (also holding false arrest to be such an 'intentional tort.') Intent to cause harmful contact is a required element in assault and battery. See: Restatement (Second) Torts, sec. 13, page 25; sec. 21, page 37 (1965).

3 As to negligence in selection or retention of employee by employer, see: Prosser, Torts (4th ed. 1971), sec. 70, page 460, stating:...

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14 cases
  • Coffey v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • November 30, 1976
    ...involves a quasi-judicial function has not been specifically addressed by this court. This court has, however, in Salerno v. Racine, 62 Wis.2d 243, 214 N.W.2d 446 (1974), held that the removal of a police officer from duty involved a quasi-judicial action. In determining that proceedings un......
    • United States
    • Wisconsin Supreme Court
    • January 27, 2005
    ...constitute an intentional tort. But see, Lange v. Town of Norway, 77 Wis. 2d 313, 320-21, 253 N.W.2d 420 (1977); Salerno v. Racine, 62 Wis. 2d 243, 245, 214 N.W.2d 446 (1974); Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 288, 531 N.W.2d 357 (Ct. App. 12. While several court of ap......
  • Graham v. Sauk Prairie Police Com'n
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 3, 1990
    ...tort against Graham.6 In both Baranowski v. City of Milwaukee, 70 Wis.2d 684, 235 N.W.2d 279 (1975), and Salerno v. City of Racine, 62 Wis.2d 243, 214 N.W.2d 446 (1974), the Wisconsin Supreme Court held that municipalities were immune from suit for the intentional torts of their employees. ......
  • City of Madison v. DEPT. OF WORKFORCE DEV.
    • United States
    • Wisconsin Court of Appeals
    • July 25, 2002
    ...are quasi-judicial proceedings that under some circumstances give rise to statutory governmental immunity. See Salerno v. City of Racine, 62 Wis. 2d 243, 214 N.W.2d 446 (1974) (holding that a municipality has immunity under WIS. STAT. § 895.43(3) (1973)14 against a claim that the city negli......
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