Dec. 7, 2020 – A state appeals court has ruled that the City of Monroe is immune from tort claims by a resident who slipped and fell on a city street outside his office, concluding the state’s “discretionary immunity statute” applied to bar the suit.

Gregory Knoke slipped on a patch of snow and ice in 2017 and in a subsequent lawsuit, alleged the city was negligent in allowing the snow and ice to accumulate on the street. The city argued that it had governmental immunity from such lawsuits.

Wis. Stat. section 893.80(4) provides that no suit may be brought against a government entity, agents, or employees “for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”

Wis. Stat section 893.83 bars lawsuits against governments specifically for accumulations of snow and ice “unless the accumulation existed for 3 weeks or more.”

The city moved for summary judgment under both statutes. The circuit court denied summary judgment under section 893.83, noting genuine issues of material fact on the whether the snow and ice was present for three or more weeks before the accident.

The circuit court also denied summary judgment under Wis. Stat. 893.80(4), the discretionary immunity statute, noting the city only had immunity for snow and ice accumulations for three weeks and section 893.80(4) cannot extend that immunity.

But in Knoke v. City of Monroe, 2019AP2003 (Dec. 3, 2020), the Dist. IV Court of Appeals reversed, concluding the city was entitled to immunity under section 893.80(4).

The appeals court noted that since 1849, Wisconsin statutory law allowed lawsuits against the government for highway defects, and the “highway defect” statute was amended in 1899 to limit the government’s liability for snow and ice accumulations.

In 2011, however, the legislature amended the highway defect statute, curtailing municipal liability for highway defects except for claims of injury allegedly caused by snow and ice accumulations lasting more than three weeks.

Under amended section 893.83, “any action to recover damages for injuries sustained by reason of an accumulation of snow and ice that has existed for three weeks or more upon any bridge or highway is subject to s. 893.80,” the discretionary immunity statute.

Knoke argued that a Wisconsin Supreme Court decision from 1998 still controls. In that case, the court concluded that claims under the highway defect statute are not subject to the discretionary immunity provision.

Under Knoke’s theory, the city could not be protected by the discretionary immunity statute for claims based on snow and ice accumulations lasting more than three weeks.

But the appeals court rejected that argument based on the legislative changes. “Knoke’s argument fails to account for the sweeping changes that the legislature made to Wis. Stat. § 893.83 when it enacted 2011 Wis. Act 132,” wrote Judge Rachel Graham.

“Not only did the legislature remove the language permitting claims against municipalities based on highway defects, it also broadened the language linking § 893.83 to the discretionary immunity statute.”

Discretionary Immunity Applies

After concluding that Knoke’s negligence claim is subject to the discretionary immunity statute, the appeals court ruled that the city was entitled to discretionary immunity.

The appeals court noted that certain acts are not protected by the discretionary immunity statute, including the “performance of ministerial duties” and “known and compelling dangers that give rise to ministerial duties” for public employees.

“A ministerial duty exists when the government has a duty that is ‘absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, and this duty ‘prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion,’” wrote Judge Graham.

Knoke argued that the city negligently created nuisance conditions that led to his injury when city employees plowed snow in front of his office that prevented normal melt water drainage. In turn, the action allowed ice patches to accumulate.

The city highlighted its own snow and ice removal policy, which notes an aspiration to maintain adequate traction from pedestrians and vehicles but “this does not mean this streets will be free of ice and now.”

The policy was discretionary, the city argued, and the city followed it in removing ice and snow in front of Knoke’s office.

The appeals court rejected Knoke’s arguments on various grounds, concluding that the snow and ice accumulation did not give rise to a ministerial duty and the known and compelling danger exception did not apply.

“To conclude otherwise would ignore the realities that Wisconsin pedestrians are accustomed to icy winter conditions and that a Wisconsin municipality will never be able to address every potentially unsafe snow and ice accumulation on its roadways and must instead exercise its discretion in determining how and when to respond to them,” Judge Graham wrote.