May v. Petersen , 2020 COA 75 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 30, 2020
2020COA75
No. 19CA0155, May v. Petersen— No. 19CA0155, May v.
Petersen— Regulation of Vehicles and Traffic — Pedestrians —
Drivers to Exercise Due Care — Duty to Yield to Individuals
with Disabilities
A division of the court of appeals considers whether a driver
must be held liable as a matter of law when an individual with an
obviously apparent disability and the driver’s vehicle collide in a
crosswalk. Relying on McCall v. Meyers, 94 P.3d 1271 (Colo. App.
2004), and the facts of the case, the division decides that the
language of section 42-4-808(1), C.R.S. 2019, does not create strict
liability for a driver. The trial court properly denied the appellant’s
argument that the appellee is strictly liable and instead determined
the issues of negligence and liability based on the facts of the case.
The division further considers whether a “crosswalk” includes
the ramp connecting a sidewalk to a roadway. Relying on a plain
language analysis of section 42-4-802(1), C.R.S. 2019, and section
42-1-102(21), (85), and (112), C.R.S. 2019, the division determines
that a crosswalk is limited to the portion of a roadway — exclusive
of any shoulders or sidewalks — designated for pedestrian crossing.
Therefore, the trial court properly denied appellant’s argument that
a crosswalk includes the ramp.
Finally, the division considers the proper standard of care to
apply to a person in a wheelchair. The division determines that the
trial court properly accounted for appellant’s disabled status by
considering the facts specific to the case. Therefore, the trial court
did not err in assessing appellant’s actions or abilities.
COLORADO COURT OF APPEALS 2020COA75
Court of Appeals No. 19CA0155
El Paso County District Court No. 17CV31486
Honorable David Prince, Judge
David May,
Plaintiff-Appellant,
v.
Michelle Petersen,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE GOMEZ
Dailey and Navarro, JJ., concur
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
¶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.
1
¶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
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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.
3
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
4
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. 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. 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
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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
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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.
7
¶ 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”;
8
 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] location”; and
 Mr. May struck “the side of the vehicle at nearly the
midpoint of the vehicle.”
¶ 19 Based on these findings, Mr. May wasn’t traveling across the
road just to the side of the crosswalk area, as in Radetsky. Rather,
he was still about a dozen feet from the roadway when Ms. Petersen
started driving through the crosswalk. Under these circumstances,
negligence was a question of fact that the trial court properly
resolved.
¶ 20 More specifically, as to section 42-4-807, the statute imposes
a duty for drivers to “exercise due care,” but whether Ms. Petersen
9
exercised due care is a factual question that was properly resolved
by the fact finder in this case. And as to section 42-4-808(1), the
statute requires a vehicle to stop and take certain precautions when
it “approaches an individual who has an obviously apparent
disability.” “Approach” is commonly defined as the “draw[ing] closer
to” or “com[ing] very near to.” Merriam-Webster Dictionary,
https://perma.cc/R3HZ-HEEQ. Here, the trial court’s detailed
findings signify that Ms. Petersen’s vehicle wasn’t approaching
Mr. May. Instead, her vehicle was driving away from the sidewalk
where Mr. May was traveling, and it was Mr. May who approached
and collided with the vehicle.
¶ 21 Additionally, while sections 42-4-807 and 42-4-808(1) make
violation of their provisions a traffic offense, and such a violation
could be negligence per se, this doesn’t necessarily mean a driver
will be liable for negligence anytime a vehicle has an accident with a
pedestrian who has an obviously apparent disability or is obviously
incapacitated. For instance, as a division of this court recognized in
McCall v. Meyers, section 42-4-808(1) doesn’t abrogate the defense
of comparative negligence. 94 P.3d 1271, 1273 (Colo. App. 2004).
10
¶ 22 Mr. May’s argument essentially would create strict liability for
any vehicle that comes in contact with an individual who as an
obviously apparent disability, regardless of the circumstances. But
section 42-4-808(1), by its plain language, doesn’t do that. What it
does is require vehicles to stop and take precautions when they
approach such individuals. The trial court explained why a court
must consider the circumstances (including whether the vehicle
was “approaching” the pedestrian) of any collision:
By way of extreme rhetorical example, if
[Mr. May] had struck the vehicle from behind
in the center of the rear bumper moving at a
higher rate of speed than the vehicle, having
the point of collision in the crosswalk would
not require a finding that the driver was
negligent and that this caused the collision.
We agree with this analysis. We therefore recognize that, in cases
involving vehicle/wheelchair collisions, as in most cases, questions
of negligence and liability depend on the circumstances and usually
must be resolved by the finder of fact.
¶ 23 Therefore, sections 42-4-807 and 42-4-808 didn’t require
entry of judgment as a matter of law for Mr. May. And because the
trial court’s findings on negligence and liability are adequately
11
supported by the record, we find no clear error and will not disturb
the trial court’s decision.
B. Definition of a “Crosswalk” Under Section 42-4-802(1)
¶ 24 Mr. May next argues that the trial court applied the term
“crosswalk” too restrictively: to include only the path in the roadway
to the exclusion of the handicap ramp. He posits that if the court
had properly interpreted “crosswalk” to include the ramp, it
necessarily would’ve found that he was in the crosswalk when
Ms. Petersen started to move and, thus, would’ve found that he had
the right of way and Ms. Petersen was at fault for the accident.
Again, we disagree.
¶ 25 Section 42-4-802(1) requires drivers to
yield the right-of-way, slowing down or
stopping if need be to so yield, to a pedestrian
crossing the roadway within a crosswalk when
the pedestrian is upon the half of the roadway
upon which the vehicle is traveling or when the
pedestrian is approaching so closely from the
opposite half of the roadway as to be in
danger.
(Emphasis added.) On the other hand, section 42-4-802(3) directs
that “[a] pedestrian shall not suddenly leave a curb or other place of
12
safety” and move “into the path of a moving vehicle that is so close
as to constitute an immediate hazard.”
¶ 26 Section 42-1-102(21) defines a crosswalk as “that portion of a
roadway ordinarily included within the prolongation or connection
of the lateral lines of sidewalks at intersections or any portion of a
roadway distinctly indicated for pedestrian crossing by lines or
other marking on the surface.” (Emphasis added.) A roadway, in
turn, is defined as “that portion of a highway improved, designed, or
ordinarily used for vehicular travel, exclusive of the sidewalk, berm,
or shoulder.” § 42-1-102(85). The statute expressly states that a
wheelchair is not a vehicle. § 42-1-102(112).
¶ 27 Mr. May argues that the ramp (or curb cut) — which allows a
handicapped person access to enter the roadway — must be
considered a part of the “crosswalk.” He bases his argument largely
on federal and state laws requiring crosswalks to include ramps to
allow access for persons with disabilities. He also argues that once
wheelchair-using persons have entered a ramp, they can’t stop due
to gravity pulling them into the roadway.
¶ 28 We agree with the trial court’s conclusion that a “crosswalk”
for purposes of section 42-4-802(1) doesn’t include a handicap
13
ramp. Section 42-1-102(21) limits the boundaries of a crosswalk to
a “portion of a roadway,” and a “roadway” includes only the part of
a highway that is used for vehicular and not pedestrian (including
wheelchair) travel, § 42-1-102(68), (85), (112). The fact that other
federal or state provisions may require ramps in order to allow
persons with disabilities access to a crosswalk doesn’t render the
entire pedestrian access route part of the crosswalk. And, to the
extent that Mr. May argues about his inability to stop his
wheelchair before entering the roadway, we must defer to the trial
court’s findings (which are supported by the record) that Mr. May
was traveling at an unsafe speed under the circumstances and that,
contrary to his testimony, he didn’t pause on the landing pad before
entering the ramp down to the roadway. Therefore, we conclude
that the trial court didn’t err in its interpretation and application of
the term “crosswalk.”
¶ 29 Mr. May also argues that, even if the crosswalk doesn’t include
the ramp, thus establishing his right of way, Ms. Petersen still
should be held liable for failing to use reasonable care to maintain
control over her vehicle. But whether Ms. Petersen exercised
reasonable care and whether Mr. May was negligent in “suddenly
14
leav[ing] a curb or other place of safety” and moving “into the path
of a moving vehicle that is so close as to constitute an immediate
hazard” (under section 42-4-802(3)) were factual questions that
were for the trial court to resolve. Because its findings are
supported by the record, we won’t disturb them on appeal.
C. Standard of Care
¶ 30 Finally, Mr. May argues that the trial court erroneously
applied an ordinary standard of care to his actions, rather than
modifying the standard to reflect his wheelchair-using status.
Again, we disagree.
¶ 31 Pedestrians are “required to use such care as a reasonably
prudent person would use in like situation, and what constitutes
such care is normally a question of fact for the [fact finder].” Pueblo
Transp. Co. v. Moylan, 123 Colo. 207, 211, 226 P.2d 806, 808
(1951).
¶ 32 Mr. May points to the Restatement (Second) of Torts
section 283C (1965), which provides that, “[i]f the actor is ill or
otherwise physically disabled, the standard of conduct to which he
must conform to avoid being negligent is that of a reasonable man
15
under like disability.”1 He also points to McCall, which approved a
jury instruction stating that “[i]f a person is physically disabled, the
standard of conduct to which he must conform to avoid being
negligent is that of a reasonable person under like disability.” 94
P.3d at 1273.
¶ 33 The parties disagree on whether it is the standard of care or
the standard of conduct that changes based on a party’s disability
status. We needn’t resolve this issue, however, as either way it
appears the trial court appropriately took into account all the
relevant circumstances — including Mr. May’s disability status — in
assessing Mr. May’s actions. For instance, in its assessment, the
court addressed the restrictions Mr. May claimed resulted from his
limited ability to stop and his restricted visibility in a wheelchair:
Given the level of vehicle and pedestrian
traffic, the nature of the pedestrian
intersection, the known slopes involved, and
the visibility restrictions [Mr. May] noted for him
to see cars and cars to see him when in the
vicinity of the crosswalk, [Mr. May] appears to
have been traveling at an unreasonable rate of
1The more recent Restatement (Third) of Torts: Physical &
Emotional Harm section 11(a) (2010) provides that “[t]he conduct of
an actor with a physical disability is negligent only if the conduct
does not conform to that of a reasonably careful person with the
same disability.”
16
speed for the conditions and does not appear
to have kept a proper lookout.
(Emphases added.)
¶ 34 Mr. May’s two primary arguments on this issue are that the
trial court “note[d] Mr. May’s speed in relationship to able-bodied
persons” and that the trial court failed to acknowledge his inability
to quickly stop on a steep grade without injuring himself. Neither
argument is persuasive.
¶ 35 As to the first argument, it was Mr. May who, during his trial
testimony, compared the speed of a person using a wheelchair to
that of a person walking, stating that “you do tend to travel slightly
faster [in a wheelchair] than walking people.” As the trial court
noted in its decision, Mr. May “testified that he was traveling faster
than the speed of a person walking” and his counsel “argued from
the video that [Mr. May] was traveling at a walking pace.” Since
Mr. May injected this issue into the trial, it wasn’t error — and
didn’t reflect the use of an improper standard — for the trial court
to reject Mr. May’s insistence that he was traveling only as fast as a
person walking and to find instead that he “was traveling slower
17
than a person at a full run but faster than a person at a normal
walk.”
¶ 36 As to Mr. May’s second argument, his insistence that he
couldn’t slow down is inconsistent with his arguments at trial. At
trial, he testified that he paused at the landing pad before entering
the ramp sloping down to the roadway, but that, once he entered
the ramp, he could no longer stop because of the slope of the ramp.
The trial court disagreed with Mr. May’s factual premise, finding “a
preponderance of the evidence does not support that [he] paused at
any time before entering the crosswalk.” Based on this finding, it
would seem that to, the extent Mr. May was traveling too fast to
stop just before the accident, it was due to his failure to pause on
the landing pad rather than his inability to stop once he had started
down the ramp. Regardless, the trial court’s discussion —
including its conclusion that Mr. May was traveling at an unsafe
speed — doesn’t suggest any failure to take Mr. May’s disability
status into account.
¶ 37 Therefore, we perceive no error in the trial court’s assessment
of Mr. May’s actions.
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IV. Conclusion
¶ 38 Judgment affirmed.
JUDGE DAILEY and JUDGE NAVARRO concur.
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