     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

                                   2
 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


                                      5
  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


                                       6
  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.




                                    18
                            IV.   Conclusion

¶ 38   Judgment affirmed.

       JUDGE DAILEY and JUDGE NAVARRO concur.




                                   19
