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Bostrom v. Vilhauer

December 3, 1996

CAROL BOSTROM AND LAWRENCE BOSTROM, WIFE AND HUSBAND, INDIVIDUALLY, AND THE MARITAL COMMUNITY COMPOSED THEREOF, APPELLANTS,
v.
KEITH VILHAUER AND DORISVILHAUER, HUSBAND AND WIFE, INDIVIDUALLY, AND THE MARITAL COMMUNITY COMPOSED THEREOF, AND KEITH VILHAUER AND DORIS VILHAUER, AS GUARDIANS AD LITEM FOR ANGELA VILHAUER, A MINOR, RESPONDENTS.



Appeal from Superior Court of Spokane County. Docket No: 95-2-03986-8. Date filed: 11/17/95. Judge signing: Hon. Neal Q. Rielly.

Petition for Review Denied July 8, 1997,

Authored by Dennis J. Sweeney, C.j. Concurring: Philip J. Thompson, J., John A. Schultheis, J.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Five Mile Road is a street running east to west with its east end intersecting with Maple Street. Maple Street is a two-lane, one-way street that runs south to north. On the east side of Maple Street and across from Five Mile Road's intersection with Maple Street is an exit from a private parking lot.

Angela Vilhauer was driving a car owned by her parents east on Five Mile Road. She intended to turn north on Maple Street. Carol Bostrom was driving west exiting the private parking lot. She intended to cross Maple Street and head west on Five Mile Road. Both parties waited until traffic cleared on Maple Street and then drove onto Maple Street. As Ms. Bostrom's car was halfway into the second lane of Maple Street, Ms. Vilhauer turned into Ms. Bostrom's car and damaged the left front portion of both cars.

Ms. Vilhauer brought a small claims action. Ms. Bostrom brought a claim in superior court. In the small claims action, the court found that Ms. Bostrom was in the street before Ms. Vilhauer. Ms. Vilhauer appealed to superior court where the appeal and Ms. Bostrom's action were consolidated. Both parties moved for summary judgment. The court granted summary judgment for Ms. Vilhauer. Ms. Bostrom appeals.

Discussion

The parties do not dispute the material facts; our review then is of a question of law. See Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash. 2d 640, 646, 835 P.2d 1030 (1992).

"The driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard." RCW 46.61.185 (emphasis added). The parties agree that Ms. Bostrom, the driver exiting the private driveway, entered the intersection before Ms. Vilhauer. RCW 41.61.185 required Ms. Vilhauer to yield the right of way since Ms. Bostrom was approaching from the opposite direction and already within the intersection, or at least close enough to constitute an immediate hazard. See Mendelsohn v. Anderson, 26 Wash. App. 933, 937, 614 P.2d 693 (1980) ("The oncoming driver is the favored driver under the circumstances and the primary duty to avoid a collision is upon the disfavored driver.").

RCW 46.61.205 and .365 are inapplicable. Both statutes apply to drivers exiting a private driveway that are "about to enter" or "upon entering the roadway" to yield the right of way. The operative words in both statutes assume a driver entering from a private driveway not when the driver is already in the intersection.

The signs in the private parking lot are also not dispositive. "A driver must yield to an oncoming vehicle even if it can be shown that the oncoming vehicle was proceeding unlawfully." Doherty v. Municipality of Metro. Seattle, 83 Wash. App. 464, 470, 921 P.2d 1098 (1996); cf. State v. Carty, 27 Wash. App. 715, 718, 620 P.2d 137 (1980) (driver's alleged speeding does not disprove disfavored driver's failure to yield right of way).

We reverse the grant of summary judgment to Ms. Vilhauer and remand for entry of summary judgment in favor of Ms. Bostrom.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for ...


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