Knoke v. City of Monroe

• Citation: 395 Wis.2d 551,953 N.W.2d 889,2021 WI App 6
• Decision Date: 03 December 2020
• Docket Number: Appeal No. 2019AP2003
• Parties: Gregory E. KNOKE and Julie A. Knoke, Plaintiffs-Respondents, v. CITY OF MONROE, Defendant-Appellant, Centers for Medicare and Medicaid Services and PacifiCare Life and Health Insurance Company, Subrogated Defendants.
• Court: Court of Appeals of Wisconsin

395 Wis.2d 551

953 N.W.2d 889

2021 WI App 6

Gregory E. KNOKE and Julie A. Knoke, Plaintiffs-Respondents,

v. CITY OF MONROE, Defendant-Appellant,Centers for Medicare and Medicaid Services and PacifiCare Life and Health Insurance Company, Subrogated Defendants.

Appeal No. 2019AP2003

Court of Appeals of Wisconsin.

Submitted on Briefs: July 17, 2020

Opinion Filed: December 3, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Kyle W. Engelke of Stafford Rosenbaum, LLP, Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Peter J. Kind of Knoke, Ingebritsen & Kind Law Office, Monroe.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.

GRAHAM, J.

¶1 Gregory Knoke slipped and fell on ice that had accumulated on the side of a street in the City of Monroe. He filed tort claims against the City, and the City moved for summary judgment, arguing that it was immune from suit under WIS. STAT. §§ 893.80(4) and 893.83 (2017-18).¹ The circuit court concluded that § 893.80(4) was inapplicable, and turning to § 893.83, it concluded that a disputed question of fact precluded entry of judgment in the City's favor. We granted the City's petition for leave to appeal,² and we now reverse. We do not decide whether the City is entitled to immunity under § 893.83 because that issue is not dispositive. Even if the City is not entitled to immunity under that statute, it nevertheless is entitled to immunity under § 893.80(4).

BACKGROUND

¶2 In January 2017, Knoke slipped and fell on the street outside of his office in the City of Monroe. He contends that the City negligently allowed snow and ice to accumulate on the side of the street and is liable for his alleged injuries. We present additional facts about Knoke's allegations as needed in the discussion section below.

¶3 The City moved for summary judgment. The parties’ arguments addressed the potential applications of two related statutes, WIS. STAT. §§ 893.80 and 893.83, each of which grants immunity to government actors under various circumstances.

¶4 WISCONSIN STAT. § 893.80(4) provides that no suit may be brought 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 suit for "any acts that involve the exercise of discretion." Engelhardt v. City of New Berlin , 2019 WI 2, ¶22, 385 Wis. 2d 86, 921 N.W.2d 714. For ease of reference, we sometimes refer to § 893.80 as the "discretionary immunity statute."

¶5 WISCONSIN STAT. § 893.83 also concerns governmental immunity, but it specifically pertains to injuries allegedly sustained due to snow and ice accumulations. It provides that "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." Section 893.83. In so doing, it "accords a municipality a limited 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) (interpreting a prior version of the statute). Following the parties’ lead, we refer to this immunity as "absolute immunity" so as to distinguish it from the immunity provided in the discretionary immunity statute. Once the three-week period of absolute immunity has passed, § 893.83 expressly subjects a claim based on a snow or ice accumulation to the discretionary immunity statute: "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. §] 893.80."

¶6 During the circuit court proceedings on summary judgment, the City argued that it was entitled to immunity under both statutes. The City argued that it was entitled to absolute immunity under WIS. STAT. § 893.83 because Knoke could not prove that the snow and ice accumulation in question had existed for at least three weeks. And the City argued that, even if the accumulation had existed for three weeks or more, Knoke's claim was barred by WIS. STAT. § 893.80(4) because the City has discretion in how to address such accumulations.

¶7 Knoke argued that the City was not entitled to absolute immunity for two reasons. First, he argued that the accumulation he slipped on was "artificial" rather than "natural." See Sambs v. City of Brookfield , 66 Wis. 2d 296, 304, 224 N.W.2d 582 (1975) ("This court has held that the three-week requirement of the statute applies only where the accumulation is ‘natural’ as opposed to ‘artificial.’ "). Second, he argued that there was a factual dispute as to how long the accumulation had existed before the accident. Turning to the City's arguments for discretionary immunity, Knoke argued that "the removal of snow and ice is not a legislative, quasi-legislative, judicial, or quasi-judicial function" and that an exception to discretionary immunity applied.

¶8 The circuit court concluded that the accumulation was natural rather than artificial and, therefore, that the City might be entitled to summary judgment if the accident had occurred during the three-week period of absolute immunity. However, the court determined there was an unresolved fact question on that issue and therefore declined to grant summary judgment in the City's favor. Turning to the discretionary immunity statute, the court ruled in Knoke's favor, denying summary judgment to the City based on a ground that neither party had advanced. The court determined that the discretionary immunity statute does not apply to snow or ice accumulations that have existed for three weeks or more, despite the plain language of WIS. STAT. § 893.83 subjecting such claims to WIS. STAT. § 893.80. The court reasoned that, if § 893.83 were read literally to mean that the City has discretionary immunity after three weeks of natural accumulation, then § 893.83 would be superfluous. The court also reasoned that, "if ... the legislature meant to limit liability" for snow and ice removal after the three-week period, it would "have gotten rid of s. 893.83 in its entirety." The court also concluded that § 893.83 creates a "specific" and "clear duty to remove snow and ice" after three weeks. We granted the City's petition for interlocutory review.

DISCUSSION

¶9 "We review de novo the grant of summary judgment, employing the same methodology as the circuit court." Palisades Collection LLC v. Kalal , 2010 WI App 38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503. Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08.

¶10 Whether the City is entitled to summary judgment turns on the interpretation and application of statutes, which is also a question of law that we review de novo. Nowell v. City of Wausau , 2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852. The goal of statutory interpretation is to discern the intent of the legislature. State ex rel. Kalal v. Circuit Court for Dane Cnty. , 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This inquiry "begins with the language of the statute." Id. , ¶45 (quoting Seider v. O'Connell , 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659 ). We also examine the statute's scope, history, context, subject matter, and purpose to ascertain its meaning. Id. , ¶¶46, 48.

I. Whether WIS. STAT. § 893.80(4) Applies to Claims Based on Snow and Ice Accumulations That Have Existed for Three Weeks or More

¶11 As we have explained, this case involves the meaning of two related governmental immunity statutes, WIS. STAT. §§ 893.80 and 893.83. And as noted above, the circuit court concluded that claims based on snow and ice accumulations are exclusively the province of § 893.83, and that the discretionary immunity set forth in § 893.80(4) has no application to claims based on snow and ice accumulations that had lasted for three weeks or more. Although Knoke did not advance this argument before the circuit court, he advances it now on appeal.

¶12 Knoke's primary argument is based on Morris v. Juneau County , 219 Wis. 2d 543, 579 N.W.2d 690 (1998). In that case, our supreme court concluded that claims allowed under an early version of WIS. STAT. § 893.83 were not subject to the discretionary immunity provided in WIS. STAT. § 893.80(4). Morris , 219 Wis. 2d at 553, 579 N.W.2d 690. To evaluate this and other related arguments, it is helpful to briefly recount the history of governmental immunity, and to consider how the historic relationship between these two statutes has recently changed as a result of the enactment of 2011 Wis. Act 132. After setting forth this history, we address and reject each of Knoke's arguments in turn.

A. The Histories of WIS. STAT. §§ 893.80 and 893.83

¶13 Under the common law and up through the 1960s, the government was immune from tort liability as a general rule. Morris , 219 Wis. 2d at 553, 579 N.W.2d 690. Government liability could exist under certain circumstances, but these circumstances were exceptions to the common law rule.

¶14 One of the early statutory exceptions to the common law rule of immunity was enacted soon after Wisconsin became a state, and is the predecessor of the modern WIS. STAT. § 893.83. WIS. REV. STAT. ch. 16, § 103 (1849). Initially, the express purpose of this statute was to allow suits against governmental entities for injuries caused by "insufficiency or want of repairs of any highway." See Morris , 219 Wis. 2d at 553, 579 N.W.2d 690. Based on this language (which has now been repealed), the statute was commonly known as the "highway defect" statute. See Weiss v. City of Milwaukee , 79 Wis. 2d 213, 222, 255 N.W.2d 496 (1977). For ease of reference, we sometimes use that term when referring to early versions of § 893.83.

¶15 In 1899, the highway defect statute was amended to...