Del Piero v. Phillips, No. 18648

Docket NºNo. 18648
Citation769 P.2d 53, 105 Nev. 48
Case DateFebruary 22, 1989
CourtSupreme Court of Nevada

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.

[105 Nev. 49] 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.

Page 54

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.

[105 Nev. 50] 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...

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3 practice notes
  • Prescott v. Slide Fire Solutions, LP, Case No.: 2:18-cv-00296-GMN-BNW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • September 26, 2019
    ...including, inter alia , building code violations, municipal code violations, and traffic statute violations. See Del Piero v. Phillips , 105 Nev. 48, 769 P.2d 53, 54 (1989) (holding a jury may be instructed on negligence per se based upon a violation of the Reno Municipal Code governing ped......
  • Vega v. EASTERN COURTYARD ASSOCIATES, No. 33932
    • United States
    • Nevada Supreme Court of Nevada
    • June 13, 2001
    ...v. Delta Lines, Inc., 99 Nev. 688, 690, 669 P.2d 709, 710 (1983). 10. 99 Nev. 688, 669 P.2d 709. 11. Id. at 690, 669 P.2d at 710-11. 12. 105 Nev. 48, 769 P.2d 53 (1989). 13. Id. at 51-53, 769 P.2d at 55-56. 14. 113 Nev. 80, 930 P.2d 740 (1997). 15. 113 Nev. at 87 n. 3, 930 P.2d at 744 n. 3.......
  • Knapp v. State ex rel. Dept. of Prisons, No. 25262
    • United States
    • Nevada Supreme Court of Nevada
    • March 30, 1995
    ...in Dredge: "Taking a new and impartial view of the evidence is exactly what personnel hearing officers are supposed to do." Dredge, 105 Nev. at 48, 769 P.2d at A decision by DOP to dismiss an employee is entitled to deference by the hearing officer "whenever security concerns are implicated......
3 cases
  • Prescott v. Slide Fire Solutions, LP, Case No.: 2:18-cv-00296-GMN-BNW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • September 26, 2019
    ...including, inter alia , building code violations, municipal code violations, and traffic statute violations. See Del Piero v. Phillips , 105 Nev. 48, 769 P.2d 53, 54 (1989) (holding a jury may be instructed on negligence per se based upon a violation of the Reno Municipal Code governing ped......
  • Vega v. EASTERN COURTYARD ASSOCIATES, No. 33932
    • United States
    • Nevada Supreme Court of Nevada
    • June 13, 2001
    ...v. Delta Lines, Inc., 99 Nev. 688, 690, 669 P.2d 709, 710 (1983). 10. 99 Nev. 688, 669 P.2d 709. 11. Id. at 690, 669 P.2d at 710-11. 12. 105 Nev. 48, 769 P.2d 53 (1989). 13. Id. at 51-53, 769 P.2d at 55-56. 14. 113 Nev. 80, 930 P.2d 740 (1997). 15. 113 Nev. at 87 n. 3, 930 P.2d at 744 n. 3.......
  • Knapp v. State ex rel. Dept. of Prisons, No. 25262
    • United States
    • Nevada Supreme Court of Nevada
    • March 30, 1995
    ...in Dredge: "Taking a new and impartial view of the evidence is exactly what personnel hearing officers are supposed to do." Dredge, 105 Nev. at 48, 769 P.2d at A decision by DOP to dismiss an employee is entitled to deference by the hearing officer "whenever security concerns are implicated......

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