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.”