Immunity applies to public parking lots

Listen to this article

“Public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.” Hon. Richard S. Brown Wisconsin Court of Appeals

A public parking lot is a “highway” within the meaning of sec. 81.15 (2001-02), and thus, a city has limited immunity from liability for injuries suffered in a slip and fall in such a lot, the Wisconsin Court of Appeals held on Sept. 24.

On March 8, 2001, Cheryl Ellerman slipped and fell on a patch of ice in a parking lot alleged to be owned, maintained, monitored and repaired by the City of Manitowoc. As a result of her fall, Ellerman suffered a severely broken ankle.

The City denied negligence and also argued that sec. 81.15 barred Eller-man’s claim.

The statute provides, “If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village. … No action may be maintained 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.”

The evidence developed during discovery strongly suggested that the ice patch had only developed since the previous night.

Manitowoc County Circuit Court Judge Fred H. Hazlewood held that the public parking lot was a “highway” within the meaning of sec. 81.15, and granted summary judgment to the city. Ellerman appealed, but the court of appeals affirmed in a decision by Judge Richard S. Brown.

Definition of “Highway”

The court began by setting forth the definition of “highway” within the context of the immunity statute.

The court noted that the statute does not define “highway,” but that courts have extended it to include roads, streets, bridges, sidewalks, driveway aprons, and shoulders of the highway.

Also, the Wisconsin Supreme Court has held that the definition of “highway” in sec. 340.01(22) applies to sec. 81.15. Morris v. Juneau County, 219 Wis.2d 543, 562, 579 N.W.2d 690 (1998)(holding the shoulder of a highway is a “highway”).

Section 340.01(22) defines “highway” as “all public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel.”

To determine whether a public parking lot is a highway, the court of appeals then turned to a Supreme Court decision that dealt with a private parking lot, City of Kenosha v. Phillips, 142 Wis.2d 549, 419 N.W.2d 236 (1988).

In Phillips, an operating while intoxicated case, the Supreme Court held that a driver could not be convicted where he was only operating the vehicle in a private lot.
Section 346.61, which governs reckless and drunken driving, provides in relevant part, “In addition to being applicable on highways,
secs. 346.62 to 346.64 are applicable upon all premises held out to the public for use of their motor vehicles.”

The Supreme Court in Phillips concluded that, because the privately owned lot was designated for use by employees of the lot owner and the employees constituted a “defined limited portion of the citizenry,” rather than the population or community as a whole, the lot was not “held out to the public.” Phillips, 142 Wis.2d at 557.

Although acknowledging that Phillips concerned a different statute, the court of appeals nevertheless found it “instructive,” reasoning, “We can discern no difference between the phrase ‘held out to the public’ and ‘open to the use of the public.’”

The court concluded, “we are convinced a ‘highway’ is an area that the entire community has free access to travel on. The public parking lot here, unlike the privately owned restricted parking lot at issue in Phillips, is available to the entire community for vehicular travel. Based on this analysis, the City’s public parking lot is a ‘highway’ as we have interpreted that term for the purposes of sec. 81.15.”

The court then rejected a contention by Ellerman that the court not look to sec. 340.01(22) for a definition of “highway,” but to sec. 84.60(1)(b), the statute pertaining to the establishment of bikeways, or sec. 943.01(2)(a), the statute governing crimes against property, for a definition of “highway.”

The court stated, “We find this argument perplexing given the Supreme Court’s clear mandate in Morris that courts are to use sec. 340.01(22) to guide their interpretation of Wis. Stat. sec. 81.15.”

Public Policy

The court then explained why its decision was consistent with Wisconsin’s principles of limited municipal immunity.

	Links Wisconsin Court of Appeals Related Article Case Analysis

The court noted, “Governmental entities have a nondelegable duty to maintain certain structures traveled on by the public, including highways and their appurtenances.

The purpose of Wis. Stat. sec. 81.15 is to prevent an ‘unreasonable and unmanageable’ burden from being imposed upon municipalities with regard to winter clean up of those structures. In recognition of limited governmental resources and harsh Wisconsin winters, the legislature has provided municipalities with immunity from their nondelegable duty to maintain ‘highways’ and ‘bridges’ for up to three weeks. Thus, sec. 81.15 is an attempt to strike a balance between the expectations of the public that the government will provide for the upkeep of such structures and the economic infeasibility of requiring municipalities to act as insurers every time snow falls and ice forms.”

The court concluded that this limited immunity should extend to public parking lots, reasoning, “Parking lots serve dual purposes — they are mixed-use facilities, serving both pedestrian and vehicular traffic. A parking lot serves not only as a place to park, but also as a roadway to allow vehicular traffic to drive upon and park. It also serves as a sidewalk in the sense that once the vehicle is parked the individual becomes a pedestrian. The public expects its taxes to be used to upkeep and maintain public parking lots in the same manner as it would expect sidewalks, shoulders of the highway and roadways to be maintained. We are therefore convinced that public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.”

Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.