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Furman v. Call

Supreme Court of Virginia
Nov 25, 1987
234 Va. 437 (Va. 1987)

Summary

holding that where the evidence was undisputed that the roads around and in a condominium complex were open to the public twenty-four hours a day, seven days a week and the public had never been denied access by guards or gates, the area was a "highway"

Summary of this case from Roseborough v. Commonwealth

Opinion

45501 Record No. 841774

November 25, 1987

Present: All the Justices

Summary judgment issued when plaintiff's evidence was stricken is affirmed because the plaintiff in this parking lot collision failed to observe the "rules of the road", which apply to public streets and "highways," which include a parking area to which the public has free access.

Torts — Negligence — Motor Vehicles — Right of Way — Rules of the Road — Highway Defined

Plaintiff had an office in a complex surrounded by a parking area which is marked private property but not closed to the public. Both plaintiff and defendant were driving out of the lot at the same time and a collision occurred at the intersection of two ways within the complex. The cars were at right angles to one another and defendant's car was to the right of plaintiff's car. The trial court relied on Code Sec. 46.1-221 in ruling that the car to the right had the right-of-way when two cars are entering an intersection at the same time and granted summary judgment for defendant. Plaintiff appeals.

1. The test for determining whether a way is a "highway" to which Code Sec. 46.1-221 applies is the degree to which the way is open to public use for vehicular traffic.

2. A case where both counsel stipulated prior to trial that the statutory "Rules of the Road" were inapplicable to a shopping center parking lot is inapposite.

3. Evidence of accessibility to the public for free and unrestricted use gave rise to a prima facie presumption that the streets of an apartment complex are highways, and once this presumption arose, the opposing party had the burden to rebut the presumption by showing that the streets were used for vehicular travel exclusively by the owners and those having either express or implied permission from the owners. Kay Management v. Creason, 220 Va. 820, 263 S.E.2d 394 (1980), applied.

4. Because plaintiff did not rebut the evidence that the public had full and unrestricted access to the parking area, the area is a "highway" as defined by Code Sec. 46.1-1(10), and the trial court properly applied that section by ruling that the defendant had the right-of-way and that plaintiff failed to yield it.

Appeal from a judgment of the Circuit Court of Fairfax County. Hon. Lewis H. Griffith, judge presiding.

Affirmed.

Thomas P. Mains, Jr. for appellant.

Gary B. Mims (Braiult, Palmer, Grove Zimmerman, on brief), for appellee.


Ayne F. Furman sued Linda Marie Thomas Call, alleging that Furman was injured as a result of Call's negligent operation of a motor vehicle. At the close of Furman's evidence before a jury, the trial court struck her evidence and entered summary judgment in favor of Call. The court concluded that Furman "failed to yield the right-of-way, which she was required to do." Furman has assigned error to this ruling.

Furman, a podiatrist, had an office in a condominium office complex consisting of 12 offices. A parking area, maintained by the Condominium Association, surrounds the buildings of the complex. Although the complex fronts on a major highway, access to it is limited to two entrances from side streets.

The parking area exists for use by "[t]he owners and/or tenants, and their employees, or guests." A sign at each entrance reads: "Private Property, No Soliciting." The 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. If a member of the public, as opposed to an owner, tenant, or invitee, parks in the area, the license number of the car is recorded and "a ticket is put on his car." A second violation results in a "paper warning" being placed on the windshield. If a third violation occurs, the car is towed away.

On May 19, 1982, both Furman and Call were leaving the parking area, intending to leave by the same exit. The collision occurred at an intersection of two ways within the complex. The two vehicles approached the intersection approximately the same time and were almost at right angles to one another when they collided, with Call's vehicle to the right of Furman's. Call's vehicle collided with the front of Furman's car.

Relying upon Code Sec. 46.1-221, the trial court ruled that Call's vehicle, which was to the right of Furman's, had the right-of-way and that Furman had failed to yield it. Code Sec. 46.1-221 provides, in pertinent part, that "when two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right."

The crucial question, therefore, is whether Code Sec. 46.1-221 applies to the intersection in the condominium's parking area. Because the statutory rules of the road only apply to highways, the answer turns on the underlying question whether the parking area is a "highway." Code Sec. 46.1-1(10) defines "highway" as "[t]he entire width between the boundary lines of every way or place of whatever nature open to the use of the public for purposes of vehicular travel." Thus, the test for determining whether a way is a "highway" depends upon the degree to which the way is open to public use for vehicular traffic. See Kay Management v. Creason, 220 Va. 820, 831-32, 263 S.E.2d 394, 401 (1980).

Furman contends that the evidence established that the parking area was a "private road or driveway" as defined by Code Sec. 46.1-1(22); therefore, she says, "The Rules of the Road," Article 4, Chapter 4, Title 46.1, including Code Sec. 46.1-221, do not apply. Furman relies upon Parker v. DeBose, 206 Va. 220, 142 S.E.2d 510 (1965), and Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957).

Code Sec. 46.1-1(22) defines a "private road or driveway" as "[e]very way in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other Persons."

Parker involved an accident that occurred in a shopping center parking lot. 206 Va. at 221, 142 S.E.2d at 511. However, counsel for both parties had stipulated prior to trial that the collision occurred on private property, that the statutory Rules of the Road were inapplicable, and that the only duty imposed upon both drivers was a duty of reasonable care under the circumstances. Id. at 222, 142 S.E.2d at 511. Based upon this stipulation, we held that the trial court committed reversible error in giving an instruction based on the statutory Rules of the Road. Id. at 225, 142 S.E.2d at 513. Thus, Parker is inapposite, and Furman's reliance upon it is misplaced.

In Prillaman, we reversed the misdemeanor conviction of a defendant accused of driving on a highway after his license had been revoked. The evidence there showed that Prillaman had driven his car from the rear to the front of a service station lot across service station property. 199 Va. at 402, 100 S.E.2d at 5. We held that the premises were not open to the public's use for vehicular traffic purposes and, therefore, did not constitute a "highway" within the statutory definition. Id. at 408, 100 S.E.2d at 9. Although the Prillaman Court discussed public maintenance and common enjoyment in evaluating whether a way is a "highway," that language is dicta. The case was decided solely on the basis of the statutory definition of "highway," which requires only that the way be "open to the use of the public for purposes of vehicular travel." Id. See also Kay Management, 220 Va. at 831, 263 S.E.2d at 401.

We believe the present case is controlled by our holding in Kay Management. There, the roadways or streets in an apartment complex were privately owned and maintained. However, no evidence showed that the streets were "restricted exclusively to the private use of the apartment dwellers or those persons who visited them," or that "access was denied to the public by security guards, gates, or warning signs." Id. at 830, 263 S.E.2d at 401. A "single short paved street or roadway" provided the only entrance to the apartment complex from the public highway. Id. Although the streets "may have been intended for the primary purpose of providing parking areas for apartment tenants," the streets "carried traffic along the travel portions," and the evidence did not show that they were constructed solely to provide parking spaces. Id.

In Kay Management, we held that "the 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 Code Sec. 46.1-1(10)." Id. at 832, 263 S.E.2d at 402. Once this presumption arises, the opposing party has the burden "to rebut the presumption by showing that the streets were used for vehicular travel exclusively by the owners and those having either express or implied permission from the owners." Id.

In the present case, the evidence is undisputed that the roads around and in the condominium complex have always been open to the public 24 hours a day, seven days a week. Access by the public has never been denied by guards, gates, or any other device. The only signs read: "Private Property, No Soliciting." (Emphasis added.) Clearly, the purpose of the signs is to prohibit soliciting, not the entry of motor vehicles operated by members of the public.

Because Furman has not rebutted this evidence and the resulting presumption that the public has full and unrestricted access to the parking area, we hold that the area is a "highway" as defined by Code Sec. 46.1-1(10). The trial court, therefore, properly applied Code Sec. 46.1-1(10) by ruling that Call had the right-of-way and that Furman failed to yield it.

Accordingly, the judgment of the trial court will be affirmed.

Affirmed.


Summaries of

Furman v. Call

Supreme Court of Virginia
Nov 25, 1987
234 Va. 437 (Va. 1987)

holding that where the evidence was undisputed that the roads around and in a condominium complex were open to the public twenty-four hours a day, seven days a week and the public had never been denied access by guards or gates, the area was a "highway"

Summary of this case from Roseborough v. Commonwealth

holding that lot in condominium office complex was a highway because, although it was posted with "Private Property" and "No Soliciting" signs, "[a]ccess to the public ha[d] never been denied by guards, gates, or any other device" and was "full and unrestricted"

Summary of this case from White v. City of Lynchburg

finding that a presumption of a highway arose when a condominium complex's parking area was "open to the public 24 hours a day, seven days a week"; public access was never denied by "guards, gates, or any other device"; and the purpose of the "Private Property, No Soliciting" sign was "to prohibit soliciting, not the entry of motor vehicles"

Summary of this case from Kim v. Commonwealth

finding that a presumption of a highway arose when a condominium complex's parking area was "open to the public 24 hours a day, seven days a week"; public access was never denied by "guards, gates, or any other device"; and the purpose of the "Private Property, No Soliciting" sign was "to prohibit soliciting, not the entry of motor vehicles"

Summary of this case from Kim v. Commonwealth

concluding that, although posted with signs stating "private property" and "no soliciting," a condominium parking lot was a "highway" because public access to the lot was unrestricted

Summary of this case from Murray v. Commonwealth

In Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987), the Court addressed the question of whether the parking area in a condominium office complex was a statutory highway.

Summary of this case from Kim v. Commonwealth

In Furman, a collision occurred at an intersection of roadways within an office condominium complex consisting of numerous buildings.

Summary of this case from Caplan v. Bogard

indicating that a parking area of a condominium office complex was a "highway" even though signs were posted at each entry which stated "Private Property, No Soliciting"-these signs prohibited soliciting, not the entry of motor vehicles

Summary of this case from Bledsoe v. Commonwealth

In Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987), the Court addressed the question of whether the parking area in a condominium office complex was a statutory highway.

Summary of this case from Kim v. Commonwealth

In Furman, 234 Va. 437, 362 S.E.2d 709, the plaintiff suffered injuries in the parking lot of an office complex when her vehicle collided with the defendant's vehicle as both cars left the lot.

Summary of this case from Roberts v. Com

In Furman, the roads surrounding the parking area "have always been open to the public 24 hours a day, seven days a week. Access to the public has never been denied by guards, gates, or any other device."

Summary of this case from Roberts v. Com

In Furman, the Supreme Court reviewed its earlier cases and ruled that the statutory definition of highway encompassed the roads and parking area surrounding a privately-owned condominium office complex.

Summary of this case from Mitchell v. Com

In Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987), the Supreme Court considered the appropriate designation of a parking lot in a condominium office complex, owned and maintained by the Condominium Association, for use by "[t]he owners and/or tenants, and their employees, or guests.

Summary of this case from Coleman v. Commonwealth
Case details for

Furman v. Call

Case Details

Full title:AYNE F. FURMAN v. LINDA MARIE THOMAS CALL

Court:Supreme Court of Virginia

Date published: Nov 25, 1987

Citations

234 Va. 437 (Va. 1987)
362 S.E.2d 709

Citing Cases

Kim v. Commonwealth

Id. at 831-32, 263 S.E.2d at 401. In Furman v. Call , 234 Va. 437, 362 S.E.2d 709 (1987), the Court addressed…

Kim v. Commonwealth

Id. at 831-32, 263 S.E.2d at 401. In Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987), the Court addressed…