When is a Parking Lot a Highway? Prior Written Notice After Groninger v. Village of Mamaroneck

In Groninger v. Village of Mamaroneck, the Court of Appeals held that a municipal parking lot is a “highway” under General Municipal Law § 50-e(4).1 Plaintiffs in personal injury cases arising from defects or hazardous conditions in municipal parking lots must therefore prove that the defendant was on notice of the condition. The implications of this decision for cases involving other public spaces, however, are far from clear. To be ready to argue where the law should go from here, counsel for both sides should know how we got here.

The Six Locations Requiring Prior Written Notice
Several state and local laws limit municipalities’ liability for injuries proximately caused by conditions on public property, by requiring prior written notice of the condition.2 General Municipal Law § 50-e(4) authorizes such statutory requirements in cases involving “any sidewalk, crosswalk, street, highway, bridge or culvert.”

For decades, zealous advocates have argued over whether particular places not enumerated in Section 50-e(4) come within any of those six locations. Frequently these battles have been fought over municipal parking lots.

The seminal case on this issue is the 1983 decision Stratton v. City of Beacon, where the Second Department held that a municipal parking lot was a “highway” for purposes of a city charter provision requiring prior written notice.3

The court relied on a Court of Appeals decision, People v. County of Westchester, which concerned the authority to impose tolls on a parkway.4 The Court of Appeals had applied a test from a 19th-century treatise, Elliott on Roads and Streets: “If a way is one over which the public have a general right of passage, it is, in legal contemplation, a highway.”5

The Stratton court conceded that “a municipal parking lot is primarily a place where vehicles are left stationary and unattended.” But because the public had a “general right of passage” over the lot, it was a “highway” for purposes of prior written notice laws.6 Lower courts across the state ever since have consistently relied on Stratton to dismiss municipal parking lot cases for lack of prior written notice.7 Two subsequent Court of Appeals decisions, though, appeared to cloud the issue.

Defining the Six Locations
In Walker v. Town of Hempstead, the Court of Appeals held that prior written notice was not required where the defect was on a municipal paddleball court at a town beach.8

A town ordinance specifically required notice in cases involving a “parking field” or “beach area,” among other places. The Court held the ordinance inconsistent with Section 50-e(4): “[W]e can only construe the Legislature’s enumeration of six, specific locations … as evincing an intent to exclude any others not mentioned.”9

In Woodson v. City of New York, the Court held that “sidewalk” under Section 50-e(4) included a stairway leading from a sidewalk to a municipal park.10

The City had moved to dismiss for lack of prior written notice, citing the Pothole Law, which defines “sidewalk” to include a “stairway.”11 The Court of Appeals held that the stairway at issue “functionally fulfills the same purpose that a standard sidewalk would serve on flat topography, except that it is vertical instead of horizontal.” Walker was distinguishable, the Court held, because “a paddleball court is functionally different from each of the six locations enumerated in General Municipal Law § 50-e(4).”12

Walker implies that parking lots are excluded by Section 50-e(4), while Woodson suggests that they might come within prior written notice statutes. In Groninger, the Court reconciled these precedents and resolved the ambiguity – at least, as to parking lots.

Groninger: The “Functional Purpose” Definition
In Groninger, the plaintiff sued for injuries sustained when she slipped and fell on a patch of ice in a municipal parking lot. The village moved to dismiss for lack of prior written notice, arguing that the lot was a “highway” under Village Law § 6-628 and CPLR § 9804. In a 4-3 decision, the Court of Appeals agreed with the Village and dismissed the claim.

Writing for the majority, Judge Pigott cited Stratton and its progeny as consistently considering a parking lot a “highway.” He then cited Woodson in holding that the lot had the same “functional purpose” as a highway.13

In doing so, the majority relied not on a treatise but on Vehicle and Traffic Law § 118, which defines a highway as “[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.”14

In dissent, Chief Judge Lippman dismissed the Stratton line of cases as “a handful of dubiously reasoned decisions.”15 He pointed out that the ordinance in Walker did cover parking fields and was invalidated. He then argued “that a parking lot does not fulfill the same function as a ‘highway,'” and that “there would be no need for the statute’s enumeration of the six location categories … if the operative definition of ‘highway’ was the virtually all-inclusive one contained in Vehicle and Traffic Law § 118.”16 What isn’t a “Highway?”

Clearly, after Groninger, plaintiffs in premises cases involving municipal parking lots must prove prior written notice.17 But where else must plaintiffs now prove prior written notice?

If a municipal parking lot is a “highway,” then does not every public space open to vehicular access serve the same “functional purpose?” For that matter, is there any space where the public has a “general right of passage” that is not at least the functional equivalent of one of the six locations enumerated in Section 50-e(4)? Defendants should therefore be ready to argue that any accident scene serves the functional purpose of an enumerated location, and seek dismissal accordingly whenever prior written notice is lacking.

By the same token, Plaintiffs who cannot prove prior written notice must be ready to explain how an accident site survives the “functional purpose” test. Groninger did not overrule Walker, therefore paddleball courts and their functional equivalents are presumably still beyond the scope of Section 50-e(4). Any restrictions on the “general right of passage” might also distinguish a location’s “functional purpose.”18 In a recent decision, Giaraffa v. Town of Babylon, the Second Department cited several cases excluding a variety of public spaces from prior written notice statutes to hold that the area adjoining a boat slip was likewise beyond such requirements.19

The Court of Appeals giveth, and the Court taketh away. Just last December, in San Marco v. Village of Mt. Kisco, the Court excused plaintiffs from proving prior written notice where snow removal has created patches of “black ice.”20 Now in Groninger the Court has helped defendants by extending the prior written notice requirement across more public property. Both decisions, though, take us further from the statutory language. This increases uncertainty, but also provides opportunities for creative counsel.

Christopher J. DelliCarpini and John M. DelliCarpini are principals of the DelliCarpini Law Firm, representing plaintiffs in personal injury matters.

1. No. 85, NYLJ 120249561623 (Ct. App. June 2, 2011).
2. See, e.g., CPLR § 9804; Highway Law § 139; Second Class Cities Law § 244; Town Law § 65-a; Village Law § 6-628; NYAC § 7-201. Courts have created two exceptions to this requirement: where the municipality’s affirmative negligence immediately creates the hazardous condition; and where the municipality derives a special use from the premises. See Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 (1999).
3. 91 A.D.2d 1018 (2nd Dept. 1983).
4. 282 N.Y. 224 (1940).
5. 282 N.Y. 224, 228 (1940), quoted in Stratton, 91 A.D.2d at 1019.
6. Stratton, 91 A.D.2d at 1019.
7. See, e.g., Peters v. City of White Plains, 58 A.D.3d 824 (2nd Dept. 2009), cited in Groninger, NYLJ 120249561623 at *5.
8. 82 N.Y.2d 360 (1994)(quoting Town of Hempstead Code § 6-2).
9. Id. at 367.
10. 93 N.Y.2d 936 (1999).
11. NYAC § 7-201(1)(b).
12. Woodson, 93 N.Y.2d at 937-38.
13. Groninger, NYLJ 120249561623 at *6.
14. Id.
15. Id. at *12.
16. Id. at *15-16.
17. Of course, the judicially-created exceptions may still apply. See Amabile, 93 N.Y.2d at 474.
18. See Smith v. VIllage of Hancock, 25 A.D.3d 975 (3d Dept. 2006) (area primarily used for vehicular access by fire department was not a municipal parking lot under Village Law § 6-628 and CPLR 9804).
19. 2011 NY Slip Op. 04416 (2nd Dept. May 24, 2011).
20. 16 N.Y.3d 111 (2010).