The Indiana Court of Appeals recently issued an opinion that answered some complicated questions about the point at which one person assumes a “duty” to another. But the panel did not reach a consensus, with one judge writing that the majority opinion could have a negative impact on public policy.
People who ponder tort law say that the question of who owes a duty to whom has been endlessly debated. And while non-lawyers may be unaware of these debates, the actions they take every day are affected by them.
R. Thomas Bodkin, a partner with Evansville’s Bamberger Foreman Oswald & Hahn, explained tort law’s role in civilized society.
“As we teach them how to drive, the obligation to stop at a stop sign – that kind of thing – we are teaching people about duty,” he said. “We just don’t use the label.”
In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, No. 48A02-1007-CT-812, the question the appellate 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 due to a stoplight at the next intersection. Key stopped at the Market St. intersection, allowing enough space for John Owens to make a left turn in front of him from a perpendicular street (from Market St. onto State Road 9). For reasons not specified in the opinion, Key got out of his work truck, standing on the doorsill to check behind him for oncoming traffic. He then 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’ vehicle, and the force of the impact propelled Hamilton over Owens’ vehicle onto the roadway, seriously injuring Hamilton.
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. Key and his employers appealed that decision.
Betsy Greene, a partner with Bloomington’s Greene & Schultz, said that what distinguishes this case from similar “courtesy wave” cases is that, typically, when a driver simply waves another driver to proceed in front of his car, the waver only guarantees that he will not crash into the driver he signaled. But the fact that Key involves an injured third party adds a new wrinkle to the discussion of duty.
In the COA opinion, the majority agreed that when Key got out of his truck to look behind him to ensure the road was clear, he assumed a duty to Hamilton, even though he didn’t see Hamilton at the time.
“I also am persuaded by the fact that this person really went to great lengths to determine that there was no traffic, and under those circumstances I think it would be fair for that driver to rely upon that information,” Greene said.
Judge Paul Mathias wrote in his dissent that Key’s behavior in thoroughly checking for traffic was laudatory. “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.
The majority opinion might result in drivers – wary of being held liable for possible consequences – being less inclined to offer a courtesy wave, which in turn could result in more “road rage” on Indiana’s roadways, he wrote.
“That was an interesting argument the judge used – kind of a parade of the horribles – because you did this, the following things will occur,” Bodkin said.