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Highway Case Analysis

Although the public policy analysis by the court is reasonable, it is not the only reasonable interpretation. Further-more, it is irrelevant, because the court’s discussion of the definition of “highway” is contrary to the plain language of the statutes. Thus it should be expected that the decision will be reversed if it receives further review.

The Phillips case, which the court cites in support of its decision, in fact, totally undermines it.

Consider the reason that the legislature passed sec. 346.61 in the first place.

The legislature had rightly prohibited drunken driving on highways. However, a statute that only prohibited that would not make it illegal to drive drunk in public parking lots. Drunken drivers were evading the law only because they happened to get caught in parking lots, rather than on the road.

So the legislature passed sec. 346.61, stating that the drunk driving laws apply, not just on highways, but “in addition to” highways, “upon all premises held out to the public (emphasis added).”

The only logical interpretation of the statute is that the legislature does not regard “premises held out to the public” to be a “highway” within the meaning of sec. 340.01(22).

If a public parking lot — “premises held out to the public” — were in fact regarded by the legislature to fit within the definition of “highway,” in sec. 340.01(22), then sec. 346.61 would be entirely superfluous.

But sec. 346.61 is not superfluous; the legislature passed the statute to encompass drunk driving in public parking lots, even though those lots are not “highways.”

Accordingly, regardless of any public policy considerations, the plain language of the statute prohibits application of municipal immunity to such lots.

Furthermore, even though the court’s public policy analysis is reasonable, it too is not without flaw.

Governments are required to build and maintain highways and roads. In some communities, sidewalks are essentially a necessity as well. Public parking lots, however, are a choice, not a necessity.

The court states, “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.”

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Immunity applies to public parking lots

However, the public actually only expects that there be adequate parking. Whether that parking is in a public lot, a privately-owned lot, or on the street, is a matter of indifference to the public, provided the parking is adequate and affordable.

Thus, building a public parking lot in a given location may be a sound policy decision that is good for the public weal, but it cannot be elevated to the status of the public duty to build roads. It is still a choice, and when determining whether a municipality should have limited immunity, it is reasonable to draw a distinction between those duties it must perform, and those it has chosen to undertake.

It is reasonable to expect that, when a government chooses to build a public parking lot, it should maintain that lot in the same way as the owner of a private lot.

On the other hand, it is also reasonable to conclude that limited immunity serves to keep down the cost of citizen parking in public lots, and that limited governmental immunity is a good trade-off for lower prices.

The question is academic, however, because, as demonstrated above, the statutes unambiguously do not include public parking lots within the definition of &#14
7;highway.”

– David Ziemer

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David Ziemer can be reached by email.

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