Can You Be Found Negligent for Extending a Courtesy Wave?

You are sitting in a growing line of cars at a traffic light waiting to make a right turn onto the Lloyd Expressway. Up ahead at the exit of a parking lot sits a vehicle with a frowning senior citizen who apparently wants to make it across your lane into the left lane.  You recall how you felt the last time you were stuck in traffic and unable to move and someone waved you out.  You decide to return the favor and stop, leaving room for the vehicle to cross your lane.  You look in your rear-view mirror to make sure no traffic is approaching in the left lane, smile and kindly signal the driver to go.  Out of nowhere comes a speeding truck.  Horns honk, and brakes squeal.  Your heart races.

If the cars collide, could you be found negligent for having given the courtesy wave?  In Key v. Hamilton, the Indiana Court of Appeals explored this legal issue.  Hamilton was seriously injured when his motorcycle struck a vehicle Key had waved through traffic.  The trial court ruled that Key owed Hamilton a duty, determining that a jury should be allowed to decide whether Key had been negligent in extending a courtesy wave.  The jury returned a verdict in Hamilton’s favor, finding Key was 45% at fault, the driver who Hamilton had waved through 50% at fault, and Hamilton 5% at fault.  The jury found Hamilton’s damages to be $2.2 million and reduced this award after applying Indiana’s Comparative Fault Act to $990,000, entering judgment against Hamilton.  Hamilton appealed.

The trial court found Key’s duty to Hamilton was grounded in a principle of law embodied by the Restatement (Second) of Torts  324A (1965).  That legal concept provides that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

The Court of Appeals was mindful to note that Key had done more than merely waving the other driver through traffic.  Key had left an opening, had looked into his rear-view mirrors, got out of his truck, stood on the doorsill and looked north before he finally waved and signaled it was clear.

In upholding the trial court’s finding that Key’s actions could be considered negligent, the Court of Appeals recognized that public policy “demands that we hold an individual responsible for the reasonably foreseeable results of his behavior; allowing an individual to escape liability for damage he causes would fly in the face of the normal expectations of our civil society.”  However, the Court went to great pains to explain that the simple act of a “courtesy wave will never be sufficient to create a duty on the part of the signaling driver.  It is only where a driver engages in such a thorough examination of traffic in order to ensure another driver’s safety and gives an “all clear” signal, as was the case here, that a duty can be found.”

The Court was not concerned with a dissenting judge’s opinion that there should be no duty because imposing a duty would lead to discourteous behavior on our roads and lessen the responsibility of signaled drivers.  It noted its decision “will not generate liability for the courteous driver who, for example, allows someone to pass through an intersection with a four-way stop sign ahead of him.”

The dissent emphasized that “our neighbors in Ohio and Michigan–hold, as would I, that a signaling driver owes no duty to a third-party motorist because a signaling driver does not and should not share in the duty of the signaled driver to operate his vehicle in a safe manner and in accordance with all applicable law.”

After the smoke clears and you get sued for your role in waving the driver through, your insurance company hires an attorney to defend you.  You ask her the question you have long wondered, “Can I really be sued for being courteous.”  Your attorney looks you squarely in the eye and says in a very straightforward manner, “That depends.”

Until the Indiana Supreme Court has the final say, this thoughtful opinion by the Indiana Court of Appeals on unique facts provides some guidance in this otherwise murky area of the law.

If you have been injured in a traffic accident, your injury claim is time sensitive.  You should allow ample time for an investigation into the circumstances and the persons who may be at fault for causing your injuries.  Our office offers a free consultation for the injured.

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