Are Parking Lots Part of the Right of Way?



By Zoe Gaik,

Architectural Forensic Associate

RGA Design Forensics



This question has been prominent in our premises liability cases for years, as I know many of you can relate. Where does the means of egress end, and the public way begin? In premises liability cases, this question is essential in determining whether the area of the Plaintiff’s incident is within the means of egress or not. If it is in the means of egress, various protections apply to this area, found in the governing building codes, fire codes, etc. But, if it is not in the means of egress and is within the public way, these code protections do not apply. The premises owner is responsible for incidents occurring in the means of egress but is typically not responsible for incidents occurring in the public way.

For added understanding, below I will include definitions of a means of egress, the parts that make up a means of egress, and a public way, all retrieved from the 2021 edition of the National Fire Protection Association 101 Life Safety Code.

  • Means of Egress. “A continuous and unobstructed way of travel from any point in a building or structure to a public way consisting of three separate and distinct parts: (1) the exit access, (2) the exit, and (3) the exit discharge” (§3.3.180*).

  • Exit Access. “That portion of a means of egress that leads to an exit” (§3.3.87).

  • Exit. “That portion of a means of egress that is separated from all other spaces of the building or structure by construction, location, or equipment as required to provide a protected way of travel to the exit discharge” (§3.3.86*).

  • Exit Discharge. “That portion of a means of egress between the termination of an exit and a public way” (§3.3.88).

  • Public Way. “A street, alley, or other similar parcel of land essentially open to the outside air deeded, dedicated, or otherwise permanently appropriated to the public for public use and having a clear width and height of not less than 10 ft. (3050 mm)” (§3.3.230*).


In examining the definition of a public way, one thing to consider is what “public use” means. Public use is defined by the Legal Information Institute at the Cornell School of Law. They state that public use means, “The right of the public to use property that was once privately owned after it has been taken by the federal or state government through its eminent domain power.” So, for a property to be dedicated to public use, typically the government would need to be in possession of such property. Examples of government-owned properties permanently dedicated to public use include public roads, public parking lots, city halls, post offices, public libraries, etc. However, not all these public properties would constitute a “public way.” Another portion of the definition of public way is that a public way must be a “...street, alley, or other similar parcel of land... having a clear width and height of not less than 10 ft.” Meaning, to be a public way, it must be a street or similar to a street. A public school or library would not constitute a public way because it is not similar to a street, and does not have “a clear width and height of not less than 10 ft.”


In addition, there exists some discussion within the International Code Council (ICC)’s 2015 version of Building Code Essentials. An excerpt reads, “The public way is a space outside the building open to the outside air that allows the person to reach a street or some other type of public right-of-way. An example of a public way can be a parking lot a safe distance away from the building or the public street itself” (Thomas, 2015). As a side note, I’d like to point out that the ICC’s Building Code Essentials is not an adopted governing code, but rather a book that discusses the meanings of certain topics found within the International Building Code (which the Florida Building Code is based upon). So this book by the ICC is not technically a governing code, but does raise questions about what is meant by “public way.”


One of the main gray areas is parking lots, and whether or not they are considered to be public ways. According to the book mentioned above, parking lots can be public ways... but the book does not mention whether they’re referencing public or private parking lots. Either way, if a parking lot were to be construed as a public way, it must meet the requirements of a public way. It must be “...deeded, dedicated, or otherwise permanently appropriated to the public for public use...” which many privately-owned parking lots are not. Although many private parking lot owners allow people to park there to patron their business, most private parking lots are not permanently appropriated to the public for public use. The main reason why I believe this is not the case is because the parking lot owner holds the right to modify, restrict use of, or apply conditions to the use of their parking lot. Use of a private parking lot is based on the parking lot owner’s discretion (not the public’s discretion), and thus the owner can choose to tow a person’s vehicle out of their parking lot, restrict people from parking in the lot between certain times, or designate the lot to only patrons of the owner’s business. All of these discretionary rights held by the owner are indicative of the parking lot not being dedicated or permanently appropriated to the public for public use.


In addition, it is illegal for the government to appropriate any privately-owned land and dedicate it to public use without providing just compensation to the property owner, as stated in the Fifth Amendment of the US Constitution. The exact wording reads, “...nor shall private property be taken for public use, without just compensation” (United States Senate, 1791). So for a piece of privately-owned land to become permanently dedicated to public use, the government must purchase said land.


Based upon the definition of a public way, the owner’s ability to have discretion over the use of their parking lot, research into what “public use” means, and the legalities of a property being permanently dedicated to public use, I am willing to conclude that privately-owned parking lots are not part of the public way but rather are part of the exit discharge portion of a means of egress.


I’d like to hear your thoughts about this as well! You can email me at ZGaik@RGA-Design.com if you have any comments or questions about this article. Best regards!

Works Cited


Legal Information Institute. (2020, November). Public Use. Retrieved December 1, 2021, from https://www.law.cornell.edu/wex/public_use


National Fire Protection Association. (2021). NFPA 101 Life Safety Code. NFPA.org. Retrieved December 1, 2021, from https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=101.


Thomas, S. (2015). Building Code Essentials: Based on the 2015 International Building Code (pg. 103). International Code Council.


United States Senate. (1791). Constitution of the United States. Retrieved December 1, 2021, from https://www.senate.gov/civics/constitution_item/constitution.htm