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Divided court affirms liability in 'courtesy wave' case

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In a case of first impression, the Indiana Court of Appeals has affirmed a trial court’s grant of summary judgment in favor of a motorcyclist injured in a crash. One judge disagreed with the majority decision, stating the opinion is contrary to sound public policy.

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, No. 48A02-1007-CT-812, the question the court was asked to review for the first time is whether a driver who signals another driver to proceed onto a roadway is liable for injuries sustained by a third party.

Jacob Key, a truck driver employed by Ted and Sally Brown, was traveling southbound on Indiana State Road 9 when he approached a line of cars stopped at a stoplight. Key stopped, allowing enough space for John Owens to make a left turn in front of him from a perpendicular street. Key got out of his truck, looked behind him, and gave an “all-clear” courtesy wave to Owens, who then pulled out in front of Key to turn left. But Key had not seen motorcyclist Dewayne Hamilton traveling southbound in the adjacent lane. Hamilton, who was traveling above the speed limit, crashed into Owens’ car, and the force of the impact propelled Hamilton over Owens’ car onto the roadway. Hamilton sustained serious injuries as a result of the crash.

At trial, the jury returned a verdict in favor of Hamilton, allocating fault as follows: 5 percent to Hamilton, 45 percent to Key and 50 percent to non-party Owens. The trial court determined Hamilton’s damages to be $2.2 million and therefore entered judgment against Key and his employers in the amount of $990,000. The defendants appealed the trial court’s determination.

The COA held that the commonly used courtesy wave will never be sufficient to create a duty on the part of the signaling driver. It is only when a driver engages in 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 majority, citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), concluded that Hamilton had passed a “balancing test” established by the Supreme Court to determine whether a duty exists. In order to impose a duty, the court must balance: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

But Judge Paul Mathias disagreed that this case met the three-prong test in Webb, saying because Key did not see Hamilton, and Hamilton did not see Key waving Owens into traffic, no relationship had been established between Key and Hamilton.  

In his dissent, Mathias wrote that Key’s behavior was “laudatory,” because he took the time to thoroughly check for oncoming traffic before waving Owens onto the roadway. “Yet the majority opinion effectively penalizes drivers such as Key, who at least try to discern whether there is any oncoming traffic, by exposing them to liability for any resulting collision,” Mathias wrote.
 


 

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  1. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

  2. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  3. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  4. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  5. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

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