May v. Petersen

• Citation: 465 P.3d 589
• Decision Date: 30 April 2020
• Docket Number: Court of Appeals No. 19CA0155
• Parties: David MAY, Plaintiff-Appellant, v. Michelle PETERSEN, Defendant-Appellee.
• Court: Court of Appeals of Colorado

465 P.3d 589

David MAY, Plaintiff-Appellant,

v.Michelle PETERSEN, Defendant-Appellee.

Court of Appeals No. 19CA0155

Colorado Court of Appeals, Division I.

Announced April 30, 2020

Robert J. Anderson, P.C., Robert J. Anderson, Scott F. Anderson, Denver, Colorado, for Plaintiff-Appellant

Resnick & Louis, P.C., Kurt Christian Temple, Andrew D. Kurpanek, Centennial, Colorado, for Defendant-Appellee

JUDGMENT AFFIRMED

Opinion by JUDGE GOMEZ

¶ 1 In this personal injury action involving a collision between a wheelchair-using pedestrian and a motor vehicle, plaintiff, David May, appeals the judgment entered in favor of defendant, Michelle Petersen, following a trial to the court. Among the issues raised on appeal are the construction of sections of the traffic code regarding vehicles that "approach[ ] an individual who has an obviously apparent disability," the meaning of the term "crosswalk" within the traffic code's right-of-way provisions, and the standard of care applicable to wheelchair-using pedestrians. Because we conclude the trial court correctly applied the law on these issues, and because the trial court's factual findings are supported by the record, we affirm.

I. Background

¶ 2 During a morning school drop-off, Mr. May's wheelchair and Ms. Petersen's vehicle collided in a crosswalk in front of their respective children's school. A ramp connects the crosswalk to an adjacent sidewalk, as depicted in the picture below.

¶ 3 Just before the accident, Mr. May exited the school and was navigating his wheelchair down the sidewalk toward the roadway so he could cross at the crosswalk and return to his car on the other side of the road. The sidewalk gained a half-inch per foot, which was an abnormally steep grade for a sidewalk but conformed to the natural slope of the land.

¶ 4 At the same time, Ms. Petersen was driving the first vehicle in the school drop-off lane. She was situated just at the edge of, or just inside, the crosswalk. Two drivers positioned a few cars behind Ms. Peterson testified that they observed Mr. May move along the sidewalk in his wheelchair but lost sight of him when he neared the roadway. However, Ms. Petersen testified that she didn't see Mr. May before the accident. She claimed that after she dropped off her child, she looked but didn't see anyone in the crosswalk, then looked over her shoulder for five to ten seconds to assess traffic with the intent to enter an adjacent lane. As Ms. Petersen moved her vehicle forward, still assessing the traffic, Mr. May entered the crosswalk in his wheelchair. The two collided, causing Mr. May to suffer a head injury

.

¶ 5 After a bench trial, at which the parties presented witness testimony as well as a surveillance video of the incident, the trial court found that

[Ms. Petersen's] vehicle entered the crosswalk prior to [Mr. May] by a wide margin. [Mr. May] proceeded into the crosswalk after the vehicle was already well into and blocking the crosswalk. [Mr. May] entered the crosswalk without adequately checking to see if the crosswalk was clear or following his normal routine of pausing to check traffic. Moreover, at the point where [Mr. May] believes he would normally have paused, he was still approximately 5-6 feet away from the curb, the vehicle was in motion, well into the crosswalk, and clearly visible from [his] location.

According to the court's findings, Mr. May struck "the side of the vehicle at nearly the midpoint of the vehicle and at the midpoint of the lane or approximately 4 feet into the roadway."

¶ 6 At trial, Mr. May testified that, according to his usual custom, he paused at what he referred to as the "landing pad" — an area that connects the sidewalk to the ramp — before entering the ramp down to the roadway. But the trial court found Mr. May didn't pause on the landing pad on the day of the accident. The court also found Mr. May was "traveling at an unreasonable rate of speed for the conditions and does not appear to have kept a proper lookout" just before the accident.

¶ 7 Finding that Mr. May hadn't demonstrated Ms. Petersen was negligent and that the accident was more likely than not caused by Mr. May's negligence, the court entered judgment in favor of Ms. Petersen and against Mr. May.

¶ 8 Mr. May presents three issues on appeal: (1) sections 42-4-807 and 42-4-808, C.R.S. 2019, established Ms. Petersen's liability as a matter of law; (2) the ramp was necessarily part of the "crosswalk" within the meaning of section 42-4-802, C.R.S. 2019, such that he entered the crosswalk first and had the right of way; and (3) the trial court erroneously considered his actions based on the standard of care for a walking person rather than modifying the standard to account for his wheelchair use.

¶ 9 We disagree as to each issue and affirm.

II. Standard of Review

¶ 10 "When a court enters a judgment following a bench trial, that judgment presents a mixed question of law and fact." State Farm Mut. Auto. Ins. Co. v. Johnson , 2017 CO 68, ¶ 12, 396 P.3d 651. While we review the court's application of the governing legal standards de novo, we review the court's factual findings for clear error. Id. In doing so, we defer to the court's credibility determinations, and we won't disturb the court's factual findings unless they are not supported by the record. Id.

¶ 11 We also review de novo a trial court's interpretation and application of a statute. People v. Patton , 2016 COA 187, ¶ 7, 425 P.3d 1152. Our goal in interpreting a statute is to give effect to the legislature's intent. Id. at ¶ 9. We read statutory words and phrases in context, interpret them according to their plain meaning, and construe them according to the rules of grammar and common usage. Id. We also avoid "constructions that would render any words or phrases superfluous or lead to illogical or absurd results." Id. (citation omitted).

III. Analysis

A. Application of Sections 42-4-807 and 42-4-808

¶ 12 Mr. May first argues that, under sections 42-4-807 and 42-4-808, Ms. Petersen was negligent as a matter of law for failing to yield the right-of-way to Mr. May. We disagree.

¶ 13 Section 42-4-808(1) provides, in relevant part, as follows:

[A]ny driver of a vehicle who approaches an individual who has an obviously apparent disability shall immediately come to a full stop and take such precautions before proceeding as are necessary to avoid an accident or injury to said individual. ... A disability shall be deemed to be obviously apparent if, by way of example and without limitation, the individual is using a mobility device, is assisted by a service animal, as defined in section 24-34-301, C.R.S., is being assisted by another person, or is walking with an obvious physical impairment.

The statute further provides that any person who violates any of its provisions commits a class A traffic offense. Id.

¶ 14 Section 42-4-807 also requires drivers to "exercise due care" to avoid colliding with a pedestrian on a roadway and to "exercise proper precaution" upon observing a child or an obviously confused or incapacitated person upon a roadway. This section similarly makes violation of its requirements a class A traffic infraction. For this and all other sections of the traffic code, a "pedestrian" includes both a person walking afoot and a person using a wheelchair. § 42-1-102(68), C.R.S. 2019.

¶ 15 Mr. May argues that Ms. Petersen "[b]y definition ... must have been negligent for her failure to stop" because she failed to immediately stop and take precautions to avoid a collision, as required by section 42-4-808(1) in light of his obviously apparent disability. He maintains that the trial court should've found Ms. Petersen negligent as a matter of law based on her failure to obey the requirements of sections 42-4-807 and 42-4-808, her failure to observe him when other drivers in the drop-off lane did, and her admission that she looked over her shoulder for five to ten seconds while driving her vehicle in a school zone crosswalk.

¶ 16 We are not persuaded. "Issues of negligence ... are questions of fact to be determined by the [fact finder], and we will not overturn its decision on those questions where there is competent evidence from which the [fact finder] could have logically reached its verdict." Vititoe v. Rocky Mountain Pavement Maint., Inc. , 2015 COA 82, ¶ 36, 412 P.3d 767.

¶ 17 There is competent evidence to support the trial court's factual findings on negligence. In fact, the evidence in this case is significantly different than the evidence in the cases Mr. May cites where liability was resolved in plaintiffs’ favor as a matter of law. For instance, in Radetsky v. Leonard , the pedestrian was already halfway across the road when she was struck by a turning vehicle; while she may have been a few feet to the side of the unmarked crosswalk area, the evidence indicated those few feet made no difference in the driver's failure to see her on the roadway. 145 Colo. 358, 359-62, 358 P.2d 1014, 1015-16 (1961). Similarly, in Ridenour v. Diffee , the pedestrians made it almost to the center of the roadway before a turning vehicle struck them in the crosswalk. 133 Colo. 467, 468-70, 297 P.2d 280, 281-82 (1956).

¶ 18 In this case, the trial court found, based upon the evidence submitted at trial (including a close review of the video of the accident), that Ms. Petersen's vehicle was already well into the crosswalk when Mr. May entered it. In particular, the trial court's findings included the following:

• Ms. Petersen's vehicle "entered the crosswalk prior to [Mr. May] by a wide margin";

• Mr. May "proceeded into the crosswalk after the vehicle was already well into and blocking the crosswalk ... without adequately checking to see if the crosswalk was clear";

• when Ms. Petersen began driving into the crosswalk, Mr. May "was somewhere around 11 or 12 feet away from the curb";

• when Mr. May was "approximately 5-6 feet away from the curb, the vehicle was in motion, well into the crosswalk, and clearly visible from [his] l

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