Caplan v. Bogard

PRESENT: All the Justices

MAX CAPLAN
OPINION BY
v. Record No. 011807 JUSTICE DONALD W. LEMONS
June 7, 2002
JEREMY BOGARD, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge

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. * 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

*
Caplan testified that the eastbound lane became “a little
bit wider” at the point where the two arrows were located.

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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]

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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”:

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 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:

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 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

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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:

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 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 was arrested while driving his vehicle in the

private parking lot of a service station, was convicted for

operating a motor vehicle after his operator’s license had been

suspended. Id. at 402, 100 S.E.2d at 4-5. We stated that the

“true test” of whether a “way” is a highway is “whether the ‘way

or place of whatever nature’ is open to the use of the public

for purposes of vehicular travel.” Id. at 407, 100 S.E.2d at 8

(quoting Crouse v. Pugh, 188 Va. 156, 165, 49 S.E.2d 421, 426

(1948)). We stated:

[t]he premises . . . were open to the
public upon [the owner’s] invitation. The
invitation was for private business
purposes and for his benefit. He had the
absolute right at any time to terminate or
limit this invitation. He could close his
doors and bar the public or any person
from vehicular travel on all or any part

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 of his premises at will. He had complete
control of their use.

199 Va. at 407-08, 100 S.E.2d at 8-9. Accordingly, we held that

because of the limited invitation to the public to enter the

premises, the parking lot did not constitute a highway for the

purposes of the Code. Id. at 408, 100 S.E.2d at 9.

In Kay Management, 220 Va. 820, 263 S.E.2d 394, which

involved an action for personal injuries sustained by a

pedestrian, we considered whether motor vehicle laws applied to

the roads within a private apartment complex. Kay argued “that,

as the streets or roadways in the apartment complex were

maintained by Kay for the benefit of the tenants, they were not

highways to which the statutory rules applied.” Id. at 830, 263

S.E.2d at 400. We distinguished the facts in Prillaman and held

that “evidence of accessibility to the public for free and

unrestricted use gave rise to a prima facie presumption that the

streets of [the apartment complex] were highways within the

definition of [the Code].” Id. at 832, 263 S.E.2d at 402.

Because the defendants did not rebut the presumption by showing

that access to the public was restricted to those with either

the “express or implied permission from the owners,” we held

that the roads within the complex were highways within the

meaning of the Code. Id.

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 The Court of Appeals, in Roberts v. Commonwealth, 28 Va.

App. 401, 504 S.E.2d 890 (1998), considered whether a

convenience store parking lot was a highway, where the defendant

was convicted of driving in the parking lot after having been

adjudicated an habitual offender. Id. at 402, 504 S.E.2d at

890. The Court of Appeals held that

[t]he 7-Eleven parking lot was privately
owned property. The owner of the lot
. . . issued an invitation to do business
to the public. Access by the public to
the property was restricted to this
invitation. The owner and its employees
retained the right to ask persons to leave
the property and to have trespassers
removed by the police. No traffic signs
existed on the parking lot. Based upon
the restricted public access to the
premises, the parking lot of the 7-Eleven
store was not a “highway” as defined by
Code § 46.2-100.

Id. at 406, 504 S.E.2d at 892. See also Flinchum v.

Commonwealth, 24 Va. App. 734, 737-38, 485 S.E.2d 630, 631-32

(1997) (holding that the parking lots of a sporting goods store

and a repair business were open to the public upon the

invitation of the store owners and the store owners could “close

[their] doors and bar the public . . . from vehicular travel on

all or any part of [their] premises at will”; accordingly, the

parking lots were not “highways” pursuant to the Code.)

Our prior decisions dictate that the party seeking to

establish that a particular way is a highway has the initial

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burden of presenting evidence of unrestricted access to the

public. A sufficient showing of unrestricted access gives rise

to the presumption that the way is a highway. Once this

presumption is found to be applicable, the opposing party has

the burden to rebut the presumption by showing that the area was

open only to those with “express or implied permission from the

owner[].” Kay Management, 220 Va. at 832, 263 S.E.2d at 402.

In the present case, Bogard and Quality Produce had the

initial burden to establish that public access to the Roanoker

was unrestricted. Bogard and Quality Produce presented evidence

that there was not a chain, or any other barrier, to physically

block the entrance to the Roanoker when the restaurant was

closed.

On this record, we hold that Bogard and Quality Produce

failed to establish the required element of unrestricted access,

and consequently no presumption that the driveway was a highway

arises. Merely presenting evidence that access to the public is

not blocked by a physical barrier is not sufficient to

demonstrate unrestricted access to the public and does not give

rise to the presumption. To hold otherwise would have

unintended and unreasonable consequences. If such a presumption

could arise upon such limited proof, then it would be implicated

in any case involving the intersection of a highway and most

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commercial establishments and private residences. Such a result

is contrary to both common sense and reason.

We note a critical factual distinction between Kay

Management and the present case. In Kay Management, the “roads”

at issue were actual named streets within the apartment complex

that featured traffic signs, curbs, and sidewalks. 220 Va. at

830, 263 S.E.2d at 400. In the present case, the entrance to

the Roanoker from Colonial Avenue was merely an access way to

the parking lot.

Bogard and Quality Produce argue that this case is

controlled by our opinion in Furman v. Call, 234 Va. 437, 362

S.E.2d 709 (1987). Furman is distinguished from this case by

its unique facts and evidentiary posture. In Furman, a

collision occurred at an intersection of roadways within an

office condominium complex consisting of numerous buildings.

The network of roadways was complimented by two entrances on

separate streets. We observed that

[t]he roads around and in the complex,
however, have never been closed to the
public; the complex is open for vehicular
traffic 24 hours a day, seven days a week.
No guard or barricade system prevents the
public from driving at will through the
complex.

Id. at 438, 362 S.E.2d at 710. Although a sign indicating that

the property was private was posted at each entrance, the signs

read “Private Property, No Soliciting.” We held that “the

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purpose of the signs is to prohibit soliciting, not the entry of

motor vehicles operated by members of the public.” Id. at 441,

362 S.E.2d at 711. Call offered sufficient evidence of free and

unrestricted access and use of the roadways to give rise to the

presumption that they were highways. Furman’s evidence

concerning the posted sign was insufficient to rebut the

presumption. In this case, the evidence offered by Bogard of

absence of a chain or barrier is insufficient to give rise to a

presumption that the entrance to the Roanoker is a highway.

Accordingly, we hold that the private parking lot of the

Roanoker, including its entrance, is not a “highway” pursuant to

Code § 46.2-100. The trial court erred in holding that the

accident occurred at an “intersection of highways,” and by

granting Instructions 13 and 15, and in refusing Instruction A.

Bogard and Quality Produce maintain that any error in the

refusal of Instruction A was harmless because a granted

instruction imposed the same duties on Bogard as the duties

imposed by refused Instruction A. We agree that the two

instructions imposed the same duties; however, the trial court’s

error was not harmless. As a result of the trial court holding

that the intersection was an “intersection of highways,” it

granted Instruction 15, which imposed a duty upon Caplan that

otherwise would not have existed, namely the duty not to pass a

vehicle proceeding in the same direction at the intersection of

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two highways. The jury was instructed that if Caplan violated

this duty, he was negligent. We have held that “a misdirection

or other mistake of the court appearing in the record is to be

presumed to have affected the jury, and the judgment will be

reversed, unless it plainly appears from the whole record that

the error did not affect, and could not have affected, their

verdict.” The American Tobacco Co. v. Polisco, 104 Va. 777,

781, 52 S.E. 563, 565 (1906). On this record, we are unable to

determine whether the jury found for the defendants based upon

lack of primary negligence or based upon contributory

negligence. Therefore, we cannot conclude that the error in

refusing Instruction A, and in granting Instructions 13 and 15,

was harmless.

Accordingly, we will reverse the judgment of the trial

court and remand for a new trial.

Reversed and remanded.

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