Opinion
March 19, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 595
Clarke W. Karr, Denver, for plaintiff-appellant.
Beal & Wilson, Leonard L. Beal, Lakewood, for defendants-appellees.
ENOCH, Judge.
This tort action was initiated by Thomas K. Gustad, plaintiff-appellant, to recover damages resulting from a collision in March 1972, between his car and a car owned by Norval F. Allen, and driven by Douglass Allen, defendants-appellees. Defendants denied any negligence on their part and filed a counterclaim alleging that the accident was caused solely by the negligence of plaintiff. After trial to the court, judgment was entered denying plaintiff's claim and granting defendants' counterclaim. We affirm.
The accident occurred after dark in a private parking lot adjacent to a Target department store in Lakewood, Colorado. The parking spaces and driving lanes were marked by stripes painted on the surface of the parking lot. There was a northsouth driving lane between each two rows of parking spaces. Immediately preceding the accident, plaintiff drove in an easterly direction across three driving lanes and across the intervening rows of parking spaces. Plaintiff emerged from a row of parking spaces alongside cars parked to his right, the direction from which defendant was coming. The front end of plaintiff's car struck the left side of defendants' car, as defendant proceeded northerly in a driving lane. Plaintiff testified that he did not see defendants' car until he was within ten feet of it. The amount of damages incurred by each party was stipulated prior to trial. There was conflicting evidence as to the speed of defendants' car and as to whether defendants' headlights were on.
The court found that the manner in which plaintiff was traveling across the lot was 'hazardous,' requiring particular care as he entered the driving lane while his view was partially obstructed by parked cars, and that plaintiff's negligence 'contributed directly to the accident.' The court further determined that defendants' headlights were on and that, although defendant Douglas was probably driving too fast under the circumstances, he could not have avoided the accident even if he had been driving slower.
On appeal, plaintiff does not contest the court's ruling that he was negligent, but asserts that the court erred in allowing defendants to recover on their counterclaim. Plaintiff, in effect, is arguing with the findings and conclusions of the trial court and the law applied relative to automobile accidents in private parking lots.
In the absence of statutes or ordinances applicable to vehicular traffic in private parking lots, the duty imposed on drivers traveling through such lots is reasonable care under the circumstances. See Clark v. Bunnell, 172 Colo. 32, 470 P.2d 42. Statutory right-of-way rules are not applicable in defining the duties of drivers in private parking lots. See 1965 Perm.Supp., C.R.S. 1963, 13--5--1(2); Parrish v. Smith, 102 Colo. 250, 78 P.2d 629; Accord, Stinson v. Columbus & Chicago Motor Freight, Inc., 69 Ohio Law Abst. 449, 125 N.E.2d 881 (Ct.App.). In the present case the court did not, as plaintiff contends, determine in effect that defendant had the right-of-way. Rather, it evaluated each party's conduct in light of the differing circumstances surrounding his actions. Plaintiff, while cutting across the parking lot, emerged into the more heavily traveled driving lane while his vision was obstructed by parked cars. He therefore had a duty to keep a sharp lookout for other vehicles. The court found that plaintiff breached his duty and that the breach caused the accident. Defendant was proceeding through the parking lot in normal fashion, using one of the traffic lanes. The court held that even though he may have breached his duty to drive very slowly, this breach was not a cause in fact of the accident. The evidence supports these findings and conclusions.
Although this case was determined under the comparative negligence statute, 1971 Perm.Supp., C.R.S. 1963, 41--2--14, the trial court failed to find the relative negligence of the parties in terms of percentages, as required by the statute. However, since in this case the court's findings clearly indicate that it found plaintiff 100% Negligent, we do not find this omission to be reversible error.
The judgment entered for the full amount of defendants' stipulated damages is affirmed.
PIERCE and RULAND, JJ., concur.