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Court of Appeals Confirms Three Week Rule as Absolute Immunity, and After Three Weeks, Discretionary Immunity Is Available to Municipalities

Author: James O. Moermond

Author: James Moermond

Gregory E. Knoke and Julie A. Knoke  v. City of Monroe, Appeal No. 2019AP2003, Recommended for publication

A recent decision by the Wisconsin Court of Appeals examined whether a municipality was liable for an injury that occurred due to a slip and fall on ice on public property. Plaintiff, Mr. Knoke, slipped and fell on ice that had accumulated on the side of the street in the City of Monroe.  The City moved for summary judgment arguing immunity under Wis. Stat.  Secs. 893.80(4) and 893.83.  The circuit court found that discretionary immunity under Sec. 893.80(4) did not apply, and it held that Sec. 893.83 raised a question of fact as to how long the accumulation had existed. The City appealed. The Court of Appeals found that while absolute immunity under Sec. 893.83 was not dispositive, the City of Monroe was entitled to discretionary immunity under 893.80(4). 

Under 893.83, a municipality has a three-week period of immunity from suit.  Damaschke v. City of Racine, 150 Wis. 2d 279, 283, 441 N.W.2d 332 (Ct. App. 1989). “Any action to recover damages for injuries sustained by reason of an accumulation of snow or ice that has existed for 3 weeks or more upon any bridge or highway is subject to (Wis. Stat. Sec.) 893.80.”  The City argued it was entitled to absolute immunity under Wis. Stat. Sec. 893.83 because Knoke could not prove the snow and ice existed for over three weeks.  The City also argued even if the accumulation existed more than three weeks, Knoke’s claim was barred by Wis. Stat. Sec. 893.80(4) because the City has discretionary immunity to address such accumulations. 

Section 893.80(4) states that no suit may be bought against a governmental entity, its agents, or its employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. This language immunizes governmental entities from lawsuits from any acts that involve the exercise of discretion.  Additinally, under Section 893.83, “no action may be maintained against (a municipality) to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.”  Any action to recover damages for injuries sustained by reason of an accumulation of snow or ice that has existed for 3 weeks or more upon any bridge or highway is subject to Section 893.80. 

Knoke argued the accumulation was artificial, as opposed to natural, because the "Three Week Rule" only applies when the accumulation is natural.  Knoke also argued the removal of snow and ice was an exception to discretionary immunity.  The primary argument from Knoke was taken from the case Morris v. Juneau County, 219 Wis.2d 543, 579 N.W.2d 690 (1998).  After Morris, the legislature enacted 2011 Wis. Act 132, which repealed most of the language in Wis. Stat. Sec. 893.83, including the “insufficiency or want of repairs of any highway.”  The legislature replaced the “procedures” interpreted by Morris with language stating “any action” based on snow or ice accumulation existing three weeks or more is “subject to” the discretionary immunity statute. 


The parties also focused on the absolute immunity provisions in Sec. 893.83, and whether the accumulation was natural or artificial, and how long it existed.  However, the Court of Appeals did not answer this issue because they would still have to address the discretionary immunity set forth in Section 893.80(4). Section 893.80(4) generally immunizes government entities from suit for acts that involve the exercise of discretion.  However, some circumstances are not protected by discretionary immunity.  A ministerial duty exists when a governmental entity 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.”

Knoke raised four general categories to defeat the application of discretionary immunity, but each was rejected by the court:   

First, nuisance was argued that discretionary immunity does not apply to nuisance claims, and cited Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 439-40, 400 N.W.2d 493 (Ct. App. 1986). To the extent Hillcrest found nuisance claims against a governmental entity are exempt from discretionary immunity, that conclusion was expressly overruled by the Wisconsin Supreme Court in the Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658. Second, Knoke argued that plowing snow is not “a legislative, quasi-legislative, judicial, or quasi-judicial function” However, the Wisconsin Supreme Court has previously rejected such an interpretation. Third, Knoke argued that a ministerial duty is one imposed by law. The court found that not all duties are ministerial; to the contrary, “for a duty to be ministerial, a public officer must be not only to act, but also bound by law to act in a very particular way. Finally, Knoke argued that the known and compelling danger exception should apply. However, the court of appeals disagreed and explained that the exception “has been reserved for situations that are more than unsafe, where the danger is so severe and so immediate that a response is demanded.”  The appeals court found that snow and ice on the side of a Wisconsin street in winter is far less severe and immediate than the types of conditions to which the known and compelling danger exception was intended to apply. 

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