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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues