Caplan v. Bogard, Record No. 011807.

• Decision Date: 07 June 2002
• Docket Number: Record No. 011807.
• Citation: 563 S.E.2d 719,264 Va. 219
• Court: Virginia Supreme Court
• Parties: Max CAPLAN v. Jeremy BOGARD, et al.

563 S.E.2d 719

264 Va. 219

Max CAPLAN v. Jeremy BOGARD, et al.

Record No. 011807.

Supreme Court of Virginia.

June 7, 2002.

Dennis P. Brumberg (Paul A. Dull; Brumberg, Mackey & Wall, on brief), Roanoke, for appellant.

John D. Eure (Robert S. Ballou; Johnson, Ayers & Matthews, on brief), Roanoke, for appellees.

Present: All the Justices.

Opinion by Justice DONALD W. LEMONS.

In this appeal of a personal injury action, we consider whether the trial court erred when it instructed the jury that the entrance to a restaurant parking lot was a "highway" within the meaning of Code § 46.2-100.

I. Facts and Proceedings Below

Max Caplan ("Caplan") filed a motion for judgment against Jeremy Bogard ("Bogard") and Quality Produce Company ("Quality Produce") for personal injuries sustained in an automobile accident in Roanoke, Virginia. Bogard, a delivery truck driver for Quality Produce, was exiting the parking lot of the Roanoker Restaurant (the "Roanoker") and was turning west onto Colonial Avenue when he struck Caplan's vehicle. West of the entrance to the Roanoker, Colonial Avenue was marked as a two-lane road divided by a double yellow line. Immediately before the entrance, the pavement of the single eastbound lane was marked with two arrows, one on the left side of the lane pointing straight ahead and one on the right side of the lane pointing right, toward the entrance to the Roanoker.¹ East of the entrance, Colonial Avenue was a four-lane road, divided into two lanes in either direction.

Caplan was driving east on Colonial Avenue on the morning of the accident, a route he drove every morning on his way to work. Traffic was heavy and, before the accident occurred, cars were "bumper to bumper and moving slowly" on his right side. Caplan explained that he would "hug the [double yellow] line" in order to pass cars that moved to the right side of the roadway as he approached the Roanoker. Caplan testified that as he approached the entrance to the Roanoker on the morning of the accident, he "passed ... six or seven cars that were bumper to bumper on [his] right." Caplan further testified that as he passed the entrance to the Roanoker, he saw "something white, large in the corner of [his] eye, but [he] didn't know what it was. And the next thing [he] heard a glass shattering and metal."

Bogard testified that on the morning of August 16, 1999, he had completed his daily produce delivery to the Roanoker and was preparing to exit the restaurant's premises to make his next delivery. He stopped his truck at the entrance to the Roanoker, in the left turn lane, in order to wait for an opportunity to turn west onto Colonial Avenue. According to Bogard, the eastbound traffic on Colonial Avenue was backed up and stopped, forming a single line of vehicles. Bogard testified that he waited between thirty seconds to one minute before an eastbound vehicle stopped and the driver motioned him into the intersection. Bogard was aware that other vehicles were stopped behind the vehicle that stopped for him. He then looked to his right and, discerning that no one was approaching from that direction, he proceeded forward, whereupon he struck Caplan's vehicle. Bogard testified that he did not see Caplan traveling east on Colonial Avenue prior to the collision.

William B. Miller ("Miller"), a former police officer, witnessed the accident. Miller was driving east on Colonial Avenue toward the Roanoker and was traveling in the right portion of the single eastbound lane. He testified that a "vehicle passed [him] on [his] left" and then he saw that vehicle, which he later learned was driven by Caplan, collide with Bogard's truck. According to Miller, the accident occurred "straight out" from the entrance to the Roanoker.

Mike Olney ("Olney"), another witness to the accident, was also approaching the entrance to the Roanoker from the east when he witnessed the collision between Caplan and Bogard. Olney testified that prior to the collision he noticed a vehicle, which he later learned was driven by Caplan, "following [him] fairly closely." Olney explained that he moved over to the right portion of the lane "in anticipation of [Caplan] passing [him] once [he] got past the Roanoker Restaurant." Olney stated that after he moved to the right, Caplan passed his vehicle and "as Mr. Caplan came around me I don't believe there were any cars in front of him he collided with a truck that was pulling out of the Roanoker Restaurant."

Sergeant William M. Babb ("Babb"), a patrol sergeant with the Roanoke City Police Department, was assigned to the accident scene, and at trial, he described the entrance to the Roanoker. He explained that the entrance included a double yellow line to separate the entrance lanes from the exit lanes, and also included a separate left turn lane. Babb further testified that, to the best of his knowledge, the entrance to the Roanoker was a "way that [was] open to the public 24 hours a day," the premises were not posted with "No Trespassing" signs, and there was not a chain in place to block access to the premises when the Roanoker was closed.

At the conclusion of the evidence, the parties proposed jury instructions to the trial court and disagreed whether the entrance to the Roanoker parking lot was a "highway" within the meaning of Code § 46.2-100. Caplan proposed the following instruction, which characterized the entrance as a "private road":

Instruction A:

Immediately before entering a highway from a private road, the driver of a vehicle has a duty to stop and use ordinary care to yield the right-of-way to any approaching vehicle that is so near the intersection that the driver cannot safely enter it.

If a driver fails to perform this duty, then he is negligent.

The trial court refused Instruction A and explained:

After much debate, reference to the statute definition and much more debate, I'm finally satisfied that under the use existing on August the 16, 1999 that the driveway in and out of the parking lot of the Roanoker Restaurant, as shown in the overhead photograph which is an exhibit in this case, and the other testimony surrounding it is that it has unrestricted public access and that the unrestricted public access is for vehicular traffic.

And I'm satisfied that it's more of a highway than a private road since there are not limitations to it.

As far as the evidence is concerned, there are no limitations to going in and out with your motor vehicle, although I think the logical inference is the only reason to go in and out of there is to eat a meal at the Roanoker.

In any event, it's more of a highway instead of a private road. I'm going to refuse the private road instructions.

Caplan objected to the trial court's refusal of his proposed instruction. The trial court granted the following instructions:

Instruction 13:

You are instructed that the intersection of Colonial Avenue and the entrance to the Roanoker Restaurant is an intersection of highways.

Instruction 15:

A driver of a vehicle has a duty not to pass any other vehicle proceeding in the same direction at any intersection of highways unless such vehicles are being operated on a highway having two or more designated lanes of roadway for each direction of travel or unless such intersection is designated and marked as a passing zone.

If a driver fails to perform this duty, he is negligent.

The jury returned a verdict in favor of both defendants, Bogard and Quality Produce. Caplan filed a motion to set aside the verdict, which the trial court denied by letter opinion dated May 9, 2001. A final order was entered in favor of both defendants on May 24, 2001. Caplan appeals the judgment of the trial court.

II. Standard of Review

This appeal presents a mixed question of law and fact which we review de novo. We give deference to the trial court's factual findings and view the facts in the light most favorable to Bogard and Quality Produce, the prevailing parties below, in order to review the trial court's application of the law to the facts. Carmody v. F.W. Woolworth Co., 234 Va. 198, 201, 361 S.E.2d 128, 130 (1987).

III. Analysis

On appeal, Caplan maintains that the entrance to the Roanoker is part of a privately maintained parking lot and is not a highway pursuant to Code § 46.2-100. Accordingly, he argues that the trial court erred in instructing the jury that the accident occurred at an "intersection of highways" and in refusing Instruction A,

Bogard and Quality Produce maintain that the trial court correctly instructed the jury that the accident occurred at an "intersection of highways," and argue that Caplan failed to rebut the evidence of unrestricted access to the area, thereby raising a presumption that the entrance was a "highway," in accordance with our decision in Kay Management Co. v. Creason, 220 Va. 820, 263 S.E.2d 394 (1980). Bogard and Quality Produce further argue that even if the trial court erred in instructing the jury that the area was an "intersection of highways" and in refusing Instruction A, any error was harmless because another instruction was given that imposed the same duties on Bogard as those imposed by Instruction A.

At the time of the accident, a "highway" was defined by Code § 46.2-100 as:

the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys, and, for law-enforcement purposes, the entire width between the boundary lines of all private roads or private streets which have been specifically designated "highways" by an ordinance adopted by the governing body of the county, city, or town in which such private roads or streets are located.

We and the Court of Appeals have had numerous opportunities to interpret the definition of a "highway" as the term is used in Title 46.2 and predecessor provisions of the Code. In Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957), the defendant, who...