Is waving while driving wise? |

Is waving while driving wise?

Here’s a situation we can all relate to, at least if you ever drive or ride in a car. Picture these facts and imagine who you would find to be at fault.

On Jan. 30, 2006, Rebecca Cherry was talking on a cell phone (bad girl, Rebecca) while waiting for traffic conditions to allow her to safely turn left from southbound Lincoln Boulevard onto Nelrose Avenue.

Kyseme Ellington was traveling north in the opposite direction on Lincoln Boulevard in the lane closest to the middle ” the left lane. Ellington graciously stopped in the intersection to let Rebecca turn left in front of him (she would be going left to right in front of Ellington), and he, according to the lawsuit, “gestured a motion indicating to Cherry that it was safe and clear for her to make the turn.”

But it was not safe. Although Ellington had stopped, Daniel Gilmer was approaching the intersection on his motorcycle in the same direction Ellington was going but in the right lane. As Gilmer proceeded into the intersection (with Ellington stopped on his left), his motorcycle hit Cherry crossing in front of him. Got those facts?

Motorcyclist Gilmer naturally sued Cherry for turning right in front of him in the intersection, cell phone in hand. That part we get.

But, and here is the interesting part, Gilmer also sued Ellington for hand signaling Cherry that it was okay to turn left in front of him. Gilmer argued Ellington was negligent in signaling Cherry to turn left without first ascertaining that Cherry could proceed safely in front of all oncoming traffic, not just Ellington’s stopped vehicle, and specifically Gilmer who crashed into Cherry.

Ellington’s response was that his act of signaling to Cherry was only meant to say that he was yielding his own right-of-way, not that it was generally safe for Cherry to turn, and certainly that it was not necessarily safe for Cherry to cross both lanes of traffic in front of Gilmer without looking.

The trial court found that Gilmer, the motorcyclist, had no claim against Ellington, that “the law and common sense” dictate that Ellington could not waive the right-of-way as to any other motorist but himself. Gilmer appealed. Of course.

I am not quite sure why this case even went to court because the vehicle code is clear. It essentially says as the Court of Appeal wrote “…if the oncoming vehicle in the lane closest to the left-turning vehicle surrenders its right-of-way by indicating to the operator of the left-turning vehicle (facing it) that it desires him to proceed, such operator may not proceed beyond that first lane of traffic, now effectively blocked by the waiving vehicle, if in fact other vehicles are approaching in any of the oncoming lanes…”

The court discussed another case where the plaintiff was traveling south when he stopped his motorcycle in a left turn pocket and waited for traffic to clear in the three oncoming lanes; the cars in oncoming lanes 1 and 2 stopped and motioned for the plaintiff to proceed with his left hand turn in front of them. Seeing no hazard in lane 3 (the lane closest to the curb, the outside lane), the plaintiff motorcyclist commenced his turn; but the defendant, who had been traveling north in lane 1, had moved to lane 3 to avoid the cars he saw stopped in front of him and he collided with the plaintiff motorcyclist in the intersection.

The court ruled that the drivers in lane 1 and 2 who motioned for the motorcyclist to turn left had no liability.

The court then discussed yet another scenario where a plaintiff-pedestrian was standing in the middle of the street after crossing two lanes of southbound traffic and waiting to cross two lanes of northbound traffic when the defendant-truck driver stopped in the lane closest to the plaintiff and motioned him to cross in front of the truck; after safely doing so, the plaintiff was struck by a car in the next lane.

Again, the Court found the truck driver who motioned the pedestrian to go ahead and walk ” not liable.

The Court of Appeal ultimately ruled that Ellington, by motioning Cherry to go ahead and start her turn, was not legally responsible. His actions only amounted to the statement that he was yielding his lane for her. Per the court, “The fact that one polite driver elects to waive his right-of-way to a left-turning vehicle does not cloak that driver with moral opprobrium. We should encourage cooperative drivers, not penalize them.”

I like the court’s fancy language, “At a time when ‘road rage’ is unhappily common, the added duty (to be responsible for the motorist you motioned forward) may further erode what infrequent civility is left on the roads. If the common courtesy of yielding the right-of-way results in lawsuits, we can expect further egocentric driving…his act was one of courtesy, not obligation.”

This is a good case. The lesson, of course: when a driver motions you to go ahead, be smart, make sure all lanes are clear.

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