Scarpaci v. Milwaukee County

• Decision Date: 03 June 1980
• Docket Number: No. 77-488,77-488
• Citation: 292 N.W.2d 816,96 Wis.2d 663
• Parties: , 18 A.L.R.4th 829 James F. SCARPACI and Linda L. Scarpaci, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, Joseph LaMonte, Chesley P. Erwin, M.D., and Elaine Samuels, M.D., Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 816

292 N.W.2d 816

96 Wis.2d 663, 18 A.L.R.4th 829

James F. SCARPACI and Linda L. Scarpaci, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, Joseph LaMonte, Chesley P. Erwin, M.D. and Elaine Samuels, M.D., Defendants-Appellants.

No. 77-488.

Supreme Court of Wisconsin.

Argued Dec. 3, 1979.

Decided June 3, 1980.

Dean M. Horwitz, Asst. Corp. Counsel, argued, for appellants; Robert P. Russell, Corp. Counsel, Milwaukee, on brief.

Timothy J. Aiken, Milwaukee, argued, for respondents; Panos, Samster, Domnitz, Aiken & Peckerman, Milwaukee, on brief.

ABRAHAMSON, Justice.

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, ¹ moved to dismiss the complaint on the ground that it failed to state a claim upon which relief can be granted, arguing that when a medical examiner conducts an autopsy, he or she is performing a quasi-judicial function and is, therefore, immune from tort suit by virtue of sec. 895.43(4), Stats.

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.

I.

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 damages for the intrusion and defiling of the body of their deceased child, intrusion of their rights of care and burial of their child, extreme disabling emotional distress, and great outrage upon their sensitivities and emotions.

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 county, and the relief requested is $125,000 compensatory damages and $125,000 punitive damages. This part of the complaint incorporates all the foregoing allegations, again alleges doubt as to whether the defendants' acts were negligent or intentional, and states that for purposes of this cause of action, the defendants are alleged to have intentionally caused emotional distress, to have engaged in extreme and outrageous conduct, causing great outrage upon the plaintiffs' sensitivities and emotions and great emotional distress and severe disabling response. In addition, the punitive damages claim is coupled with an allegation that the individual defendants' conduct was in reckless disregard of the plaintiffs' rights.

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 ² was based on the ground that the defendants are immune from suit under sec. 895.43(4), Stats. ³ This defense is properly presented by this motion. Lister v. Board of Regents, 72 Wis.2d 282, 299, 240 N.W.2d 610 (1976).

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. ⁴

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 (271 N.W.2d 368). 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., 86 Wis. 1, 4-5, 271 N.W.2d 598 (1978); Anderson, supra (, 85 Wis.2d) at 683, (271 N.W.2d 368). 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 Procedure, Chapters 801-803, 59 Marq.L.Rev. 1, 54 (1976). The facts pleaded and all reasonable inferences from the pleadings must be taken as true, but legal conclusions and unreasonable inferences need not be accepted. Hartridge, supra, (86 Wis.) at 4-5, (271 N.W.2d 598.)

"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 (, 78 S.Ct. 99, 2 L.Ed.2d 80) (1957)." Morgan v. Pennsylvania General Insurance Co., 87 Wis.2d 723, 731-32, 275 N.W.2d 660, 664 (1979).

See also, General Split Corp. v. P & V Atlas Corp., 91 Wis.2d 119, 123, 280 N.W.2d 765 (1979); Wilson v. Continental Insurance Cos., 87 Wis.2d 310, 316-18, 274 N.W.2d 679 (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 autopsy once undertaken; ⁵ (2) the body of the plaintiffs' child was mutilated by an autopsy which was performed without the consent of the plaintiffs and under circumstances that were not such as to give rise to the defendants' statutory authority to conduct an autopsy; and (3) the body of the plaintiffs' child was mutilated by an autopsy which was performed by reason of the medical examiner's mistaken judgment and bad faith.

II.

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...