Del Piero v. Phillips, 18648

• Decision Date: 22 February 1989
• Docket Number: No. 18648,18648
• Citation: 769 P.2d 53,105 Nev. 48
• Parties: Greg DEL PIERO, Appellant, v. Dale Anthony PHILLIPS, Respondent.
• Court: Nevada Supreme Court

Page 53

769 P.2d 53

105 Nev. 48

Greg DEL PIERO, Appellant, v. Dale Anthony PHILLIPS, Respondent.

No. 18648.

Supreme Court of Nevada.

Feb. 22, 1989.

Edward B. Horn and Paul Elcano, Reno, for appellant.

Perry, Hebert & Spann and Kelly G. Watson, Reno, for respondent.

OPINION

SPRINGER, Justice:

The jury in this case gave judgment to the defendant, respondent Phillips. We reverse because it was error for the trial court to refuse to give appellant's instructions on negligence per se. "A negligence per se instruction would have served to shift the burden of proof to respondents to show excuse or justification, thereby relieving appellant of the burden of establishing actual negligence. Barnes v. Delta Lines, Inc., 99 Nev. 688, 690-91, 669 P.2d 709, 711 (1983). As such, there is no question that the jury may have reached a different result if it had been properly instructed on the law of negligence per se." 99 Nev. at 691, 669 P.2d at 711 (1983); see Meyer v. Swain, 104 Nev. 595, 763 P.2d 337 (1988). There is ample evidence which would have supported a jury finding that respondent Phillips was guilty of several violations of statutory rules of the road. The trial judge should, therefore, have given negligence per se instructions, and his refusal to give these instructions constitutes reversible error.

Appellant Del Piero was struck by a vehicle being driven by respondent Phillips as Del Piero was attempting to cross the right-turn lane which channels east-bound Mill Street traffic into Rock Boulevard. Prior to entering the unmarked crosswalk where Phillips ran into him, Del Piero had been riding his bicycle in a northerly direction on Rock Boulevard. When Del Piero approached the busy intersection of Rock Boulevard and Mill Street, he decided to proceed northerly across Mill Street as a pedestrian rather than as a bicyclist. To do this he crossed to the west side of Rock Boulevard, lifted his bicycle over the west curb of Rock Street and walked northward pushing his bicycle along an unpaved pedestrian walkway that runs alongside the curb line on the west side of Rock Boulevard. The walkway ends at the curb line of the "channelized right-turn lane," ¹ that channels right-turning traffic from the right, east-bound traffic lane of Mill Street into the right, south-bound traffic lane of Rock Boulevard.

Del Piero walked northerly along the unpaved sidewalk of Rock Boulevard until he reached the curb separating the sidewalk from the mentioned right-turn lane. At this point he looked to his left to see if there was any oncoming traffic about to enter the turn lane. Seeing none, he lifted his bicycle over the curb and proceeded to cross the turn lane in the direction of a triangular "pedestrian refuge island" ² which separates the turn lane from the main thoroughfares of Mill Street and Rock Boulevard. As he made the crossing, Del Piero walked straddling his bicycle instead of walking with the bicycle at his side.

Del Piero was struck by Phillips's car when Del Piero was about one third to one-half of the way across the right-turn lane. He was walking in a path which approximated the extension of the unpaved walkway that he had been walking on before entering the paved right-turn lane. ³

Although it was contested at trial, Del Piero was at the time of the collision a pedestrian. The trial court held as a matter of law that Del Piero was a pedestrian, and we see no reason to disagree with this holding. " 'Pedestrian' means any person afoot." Reno Municipal Code (RMC) sec. 6.04.430; NRS 484.111. Bicyclist Del Piero elected to proceed as a pedestrian, following along pedestrian paths and following procedures designed to protect pedestrians. The fact that at the time of impact he was straddling the bicycle rather than pushing it at his side does not transform Del Piero from a pedestrian into a bicyclist. If Del Piero had been struck on the sidewalk while straddling a bicycle, no one could reasonably have claimed that he was a cyclist rather than a pedestrian. The same applies to his straddle-walk across the right-turn lane. We agree with the trial court that Del Piero was a pedestrian at the time he was struck. We now consider the case in this light and examine the right-of-way enjoyed by pedestrians and motorists involved in this kind of mishap.

At the time of impact Del Piero appears to have had the right-of-way for two reasons: first, because Del Piero was a pedestrian traveling within an unmarked crosswalk at the time he was struck and, second, because Phillips's vehicular progress through the intersection was controlled by a "Yield" sign.

That Del Piero was walking in an unmarked crosswalk at the time he was struck is subject to considerable contention on this appeal. The applicable ordinance, RMC 6.04.140(1), ⁴ defines a crosswalk as a "part of a roadway at an intersection." Phillips maintains that the Mill-Rock intersection is limited to that "area approximately square in shape with its boundaries at each light signal pole." If we were to accept Phillips's definition, then Del Piero would not have yet reached the intersection when he entered the right-turn lane.

RMC 6.04.280(1) ⁵ belies Phillips's restrictive definition of an intersection. Although the first clause of this code section describes the limited, square-shaped intersection urged by Phillips, the second clause includes within the definition of intersection "the area within which vehicles traveling upon different highways joining at any other angle [than right angles] may come in conflict." We are satisfied that the point where the Mill Street turn lane meets with Rock Boulevard is a point where vehicles traveling on different highways may come in conflict. Since this collision took place at an intersection where no crosswalk is marked, we must next examine how a pedestrian properly crosses this intersection and where the crosswalk for a pedestrian crossing such an intersection is located.

Often the kind of crossing area occupied by Del Piero is "distinctly indicated for pedestrians crossing by lines or other marking on the surface." RMC 6.04.140(2). However the crosswalk at Rock Boulevard and Mill Street has not as yet been so marked. Therefore, a person traversing that intersection to the pedestrian refuge island must do so at an unmarked crosswalk as defined in RMC 6.04.140(1).

It is obvious that the ordinance describing crosswalks was drafted with the square-shaped intersection defined in the first clause of RMC 6.04.280 in mind. We are...