Opinion
No. 5690.
Argued February 6, 1968.
Decided May 29, 1968.
1. The construction and maintenance of municipal parking areas is a proper exercise of the police power to regulate highways and their use.
2. Municipalities are expressly authorized by statute (RSA 31:3, 4 III) to create parking areas, and the use of parking meters therein is likewise authorized (RSA 249:1, 2) in consistency with constitutional provisions (Const., Pt. II, Art. 6-a).
3. Parking incidental to a viatic use of highways is itself a highway use, and serves a public purpose.
4. The fact that municipalities are not required to provide parking lots and the fact that metering of parking therein provides a measure of compensation for the facilities are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character.
5. Municipal metered parking areas are so far akin to the establishment and maintenance of highways that they enjoy the status of an established function of government and are subject to the same limitations as to liability.
Action of case by which the plaintiff seeks to recover damages for injuries suffered on January 4, 1964 when she slipped on ice and fell in a metered municipal parking lot in Manchester. The lot was owned, designed and constructed by the city, and bounded by four streets, with access from only one street. The plaintiff's declaration alleges that operation of the lot is a proprietary function. The defendant demurred to the writ, alleging, among other grounds therefor, that operation of the lot is a governmental function in the exercise of which it is immune from liability. All questions of law presented by the demurrer were reserved and transferred by the Superior Court (Leahy, C.J.).
Arthur E. Porter and Philip S. Hollman (Mr. Hollman orally), for the plaintiff.
J. Francis Roche, city solicitor (by brief and orally), for the defendant.
It is settled law in this jurisdiction that the construction and maintenance of municipal parking areas is a proper exercise of the police power to regulate highways and their use. Opinion of the Justices, 94 N.H. 501. Authority to create such areas is expressly conferred upon municipalities by statute (RSA 31:3, 4 III), and the use of parking meters therein is likewise authorized by statutory provisions adopted in consistency with constitutional provisions. (RSA 249:1, 2) Const., Pt. II, Art. 6-a. Opinion of the Justices, supra.
Other decisions of this court make it evident that parking which is incidental to a viatic use of the highways is itself a highway use, provision for which serves a public purpose. Papademas v. State, 108 N.H. 456. See also, Hartford v. Gilmanton, 101 N.H. 424; State v. Rosier, 105 N.H. 6.
In consequence, parking has become so far an integral part of highway use and regulation, that we are of the opinion that adequate provision for it must be considered to be the exercise of a governmental function in the course of which a municipality should be free from liability for negligence. Gossler v. Manchester, 107 N.H. 310. See State v. Rosier, 105 N.H. 6, supra.
In reaching this conclusion, we are sensible of the fact that provision of parking lots is not required of municipalities, and recognize that metering is designed to provide a measure of compensation for facilities provided. RSA 249:1, 2, supra. These considerations however are not conclusive of the question of whether the particular undertaking is governmental or proprietary in character. Kardulas v. Dover, 99 N.H. 359; Shea v. Portsmouth, 98 N.H. 22, 26. See Krzysztalowski v. Fortin, 108 N.H. 187.
In her well reasoned brief the plaintiff relies upon the few decided cases to be found, to establish that elsewhere the operation of municipal parking lots has been thought to be proprietary. Stringfield v. City of Hackensack, 68 N.J. Super. 38; Amelchenko v. Borough of Freehold, 81 N.J. Super. 289; Zaras v. City of Findlay, 112 Ohio App. 367. See also Annot., 8 A.L.R. 2d 373;. 18 McQuillin, Municipal Corporations (3d ed Rev.) s. 53.107a.
The opinions which have considered this question however are those of intermediate courts, and the opinion of the Supreme Court of New Jersey, in a case in which the court below had held the operation of a municipal parking lot to be proprietary, has made it plain that the question in that jurisdiction is resolved by statute, without regard to whether the activity is governmental or proprietary. Amelchenko v. Borough of Freehold, 42 N.J. 541.
While it may reasonably be argued that parking lots, like sewers, are primarily "for the local accommodation and convenience" (Roberts v. Dover, 72 N.H. 147, 154; Lockwood v. Dover, 73 N.H. 209, 211), we take the view that parking areas are so far akin to the establishment and maintenance of highways that they enjoy the status of an established function of government, and should be subject to the same limitations as to liability. Fournier v. Berlin, 92 N.H. 142. See Allen v. Hampton, 107 N.H. 377, 378.
Since the condition of which the plaintiff complains was not a highway "defect" as to which the defendant may be held liable (Bernier v. Whitefield, 80 N.H. 245; RSA 247:17), the defendant's demurrer should be sustained. The plaintiff's allegation that the condition which caused her injury was a "nuisance" is not considered to alter the conclusion reached. Shea v. Portsmouth, 98 N.H. 22, 27-28. Cf Allen v. Hampton, supra.
Remanded.
KENISON, C. J. and LAMPRON, J. concurred specially; the others concurred.
The dying doctrine of municipal immunity receives resuscitation in this case which continues to employ the illogical and confused governmental-proprietary classification to determine liability. Prosser, Torts 1005 (3d ed. 1964); 2 Harper and James, The Law of Torts, s. 29.6, pp. 1621-1623 (1956). While disagreeing (Gossler v. Manchester, 107 N.H. 310, 315, dissenting opinion), nevertheless I am bound by the majority opinion in this case and in Gossler and concur solely for that reason.
LAMPRON, J., concurs in this opinion.