#24545-a-PER CURIAM 

2008 SD 7 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

BARBARA ANN DRAPEAU, Plaintiff and Appellant, 

 v. 

HEATHER ROSE KNOPP, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE KATHLEEN K. CALDWELL 

Judge 

* * * * 

JAMES G. ABOUREZK of 

Abourezk Law Offices, PC 

Sioux Falls, South Dakota Attorneys for plaintiff 

and appellant. 

MARK J. WELTER of 

Wilka & Welter, LLP 

Sioux Falls, South Dakota Attorneys for defendant 

and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON NOVEMBER 6, 2007 

 OPINION FILED 01/30/08 
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PER CURIAM 

ACTION 

[¶1.] Barbara Ann Drapeau (Drapeau) appeals a circuit court judgment 

finding in the favor of Heather Rose Knopp (Knopp), the defendant. 

FACTS 

[¶2.] On December 14, 2006, Drapeau was a passenger in her vehicle, driven 

by her daughter, Emberlyn Hopkins (Hopkins). Driving north on Louise Avenue, 

Hopkins made a left-hand turn onto Empire Place Road, which led to the Empire 

Mall. While Hopkins turned onto Empire Place Road, Knopp was traveling from 

one private parking lot to another (south to north) across Empire Place Road. 

Drapeau’s vehicle struck Knopp’s vehicle on the passenger side. Vehicles traveling 

on Empire Place Road have the right-of-way over vehicles entering the street from a 

parking lot, under SDCL 32-26-14.1 Drapeau’s vehicle was totaled as a result of the 

accident. Drapeau sued Knopp for the retail value of her vehicle and the cost of 

towing. 

[¶3.] At trial, Drapeau testified that her daughter stopped at the traffic light 

at the intersection of Louise and Empire Place Road, and, after the light had turned 

green and all the traffic had cleared, they turned left onto Empire Place Road 

traveling at a speed of five to ten miles per hour. She claims that at the moment 

1. SDCL 32-26-14 provides: 

The driver of a vehicle about to enter or cross a public highway 

from an alley, building, private road, or driveway shall yield the 

right-of-way to all vehicles approaching on such public highway. 

A violation of this section is a Class 2 misdemeanor. 
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Knopp pulled out of a parking lot in front of her vehicle, the collision took place. 

Although Knopp never challenged Drapeau’s testimony regarding her vehicle’s 

speed, she challenged her credibility. 

[¶4.] Knopp questioned Drapeau about the fact that the police record 

indicated she was the driver, claiming that Drapeau lied to the police to hide the 

fact that her daughter was driving the vehicle. At the time, her daughter did not 

have a license, which she claimed was taken from her about ten years earlier as the 

result of a traffic offense, but she acknowledged her daughter does not “tell [her] 

everything.” Drapeau claimed that the officer only asked who the owner was, never 

who was driving. 

[¶5.] During Knopp’s testimony she indicated the existence of numerous 

defects of Drapeau’s vehicle to support her claim that the car was in “fair to poor” 

condition, only worth about three-thousand, and not three-thousand nine-hundred 

and ninety-five dollars as claimed by Drapeau. 

[¶6.] Knopp testified that she was traveling from one parking lot to another 

across Empire Place Road.2 She stopped at the stop sign, and after waiting for a 

“couple of cars” to pass she “looked both ways” and saw that no vehicles were 

turning onto the road. She determined that “it was clear to pass,” at which point 

2. Knopp testified as follows: 

I was stopped at a stop sign waiting to cross into another 

parking lot and I had stopped at the stop sign, looked both ways, 

seen a couple cars coming, waited and I seen it was clear to pass 

and I proceeded into the intersection. As I proceeded into the 

intersection, my front part of my car was already into the next 

parking lot as Barbara’s daughter proceeded into the street and 

hit my car.
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she “proceeded into the intersection.” As Knopp’s vehicle was entering the opposite 

parking lot, Drapeau’s vehicle proceeded onto the road and struck the right 

passenger door of Knopp’s vehicle. Knopp conceded that vehicles traveling on 

Empire Place Road had the right-of-way. 

[¶7.] The trial court found that Knopp was acting reasonably under the 

circumstances. It also concluded that Drapeau failed to prove Knopp was negligent. 

Drapeau appeals. 

STANDARD OF REVIEW 

 This Court reviews a trial court’s findings of fact under 

the “clearly erroneous” standard and overturns a trial court’s 

conclusions of law only when the trial court erred as a matter of 

law. In applying the clearly erroneous standard, our function is 

not to decide factual issues de novo. The question is not whether 

this Court would have made the same finding that the trial 

court did, but whether on the entire evidence we are left with a 

definite and firm conviction that a mistake has been committed. 

We will not overturn the trial court’s decision unless, after 

reviewing all the evidence, we are left with a definite and firm 

conviction that a mistake has been made. Due regard shall be 

given to the opportunity the trial court had to judge the 

credibility of witnesses. 

Zarecky v. Thompson, 2001 SD 121, ¶8, 634 NW2d 311, 314 (citations omitted). 

ANALYSIS AND DECISION 

[¶8.] Drapeau contends that the trial court’s findings were clear error and 

its conclusions were an abuse of discretion. We are not convinced. 

[¶9.] According to Knopp’s testimony she was driving with the utmost care, 

making every attempt to ensure the safe passage of her vehicle across the street, 

yet, her vehicle was still struck (T-bone style) by Drapeau’s vehicle. According to 

Knopp, her vehicle started to exit the street when Drapeau’s vehicle turned onto 
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Empire Place Road. Although Knopp conceded that street traffic has the right-ofway, this concession is not equivalent to fault. In Carpenter v. City of Belle Fourche, 

we stated: “An intersection collision is not proof by itself that fault lies with the 

unfavored driver. . . . Drivers are not required to notice every vehicle within the 

range of vision, but only those within the radius of danger.” 2000 SD 55, ¶14, 609 

NW2d 751, 759 (stating that negligence of a vehicle “entering a preferential 

highway protected by a stop sign remains for the trier of fact”) (citations omitted); 

see also Ricketts v. Tusa, 87 SD 702, 706, 214 NW2d 77, 79 (1974) (stating “where a 

driver looks but fails to see another vehicle shown to be in a favored position, the 

question of his negligence is for the jury”) (citations omitted). Furthermore, a driver 

may forfeit the right-of-way by traveling at an excessive speed. SDCL 32-26-13 

(“The driver of any vehicle traveling at an unlawful speed shall forfeit the right-ofway which he might otherwise have hereunder.”). Assuming that Knopp did take 

the precautions stated above, the trial court’s findings were not in error and its

conclusions were not an abuse of discretion. Thus, we affirm the trial court’s 

judgment. 

[¶10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER 

and MEIERHENRY, Justices, participating.