ILNews

Divided court affirms liability in 'courtesy wave' case

Back to TopCommentsE-mailPrintBookmark and Share

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.
 


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  2. MELISA EVA VALUE INVESTMENT Greetings to you from Melisa Eva Value Investment. We offer Business and Personal loans, it is quick and easy and hence can be availed without any hassle. We do not ask for any collateral or guarantors while approving these loans and hence these loans require minimum documentation. We offer great and competitive interest rates of 2% which do not weigh you down too much. These loans have a comfortable pay-back period. Apply today by contacting us on E-mail: melisaeva9@gmail.com WE DO NOT ASK FOR AN UPFRONT FEE. BEWARE OF SCAMMERS AND ONLINE FRAUD.

  3. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  4. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  5. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

ADVERTISEMENT