TO WAVE, NOT TO WAVE, OR TO WAVE HAPHAZARDLY . . . THAT IS THE QUESTION.

by Michael C. Cooley March, 2012

To Wave, Not to Wave, or to Wave Haphazardly . . . That is the Question.

Have you ever waved to another driver as a signal to move in a traffic situation? The Indiana Court of Appeals has decided several interesting cases of late, none of which may impact common, everyday courtesies more than a case involving Jacob Key, John Owens, and Dewayne Hamilton.

The facts in this case were that, Jacob Key, a truck driver, was traveling southbound on Indiana State Road 9 when he approached a line of cars stopped at a stoplight. Key stopped, allowing enough space between his truck and the vehicle in front of him for another car, driven by John Owens, to make a left turn in front of him onto State Road 9 from a side street. Once stopped, Key got out of his truck, checked the traffic behind him, and gave an "all clear" courtesy wave to Owens. Owens then pulled out in front of Key to turn left.

Unfortunately, Key had not seen motorcyclist Dewayne Hamilton traveling southbound in the lane adjacent to him. Owens pulled out in front of Hamilton's motorcycle, and Hamilton, who was traveling above the speed limit, crashed into Owens' car, with the force of the impact vaulting Hamilton over Owens' car and onto the roadway. Hamilton sustained serious injuries as a result of the crash.

Hamilton filed a lawsuit as a result of this crash. At trial, the jury returned a verdict in favor of Hamilton, allocating fault 5 percent to Hamilton, 45 percent fault to Key and 50 percent fault to Owens. Key appealed the jury's decision, alleging, among other things, that he could not be responsible for Hamilton's injuries because he owed no "duty" to Hamilton.

Generally, when a plaintiff files a personal injury case in Indiana, the plaintiff must establish that the defendant owed a duty to the plaintiff under Indiana law. The Plaintiff must also prove that the defendant breached (failed to meet) the duty owed to the plaintiff, and that the defendant's breach of duty caused the plaintiff to suffer damages. The questions that the Indiana Court of Appeals was asked to consider were whether Key owed a legal duty to Owens (the person to whom he waved) and/or whether Key owed a legal duty to Hamilton (injured because Owens responded to the wave) to act in a way that would not cause injury to either of them.

The Court of Appeals answered "yes" to both questions. In sum, the Court ruled that generally, a driver providing a "courtesy wave" would normally only have a duty to the driver to whom he waved to not do so in a way that would cause injury to that driver. However, in this case the Court noted that Key took the extra care of getting out of his vehicle and checking traffic before providing his "courtesy wave". Because Key took extra care to review the surrounding traffic before waiving Owens into traffic, he assumed a duty to both Owens and Hamilton which otherwise, according to the Court, would probably not have existed. Thus, the Court appears to have held that, if a driver intends to provide a courtesy wave to another driver, doing so haphazardly may be best to limit that driver's potential liability in a personal injury case.

How this case may impact the actions of driver interactions on Indiana's roadways on a daily basis remains to be seen. However, the next time you are driving and come upon a situation where you are tempted to offer a "courtesy wave", the oddity of this decision is that you are likely better off to do so either haphazardly, or not at all.

Our attorneys regularly represent persons who have been injured in accidents. If you have been injured in an accident, you should act immediately to protect your rights, as the law limits the amount of time that injured parties have to seek compensation from persons who caused them injury.