Williams v. O'Brien, 95-236

Citation669 A.2d 810,140 N.H. 595
Decision Date29 December 1995
Docket NumberNo. 95-236,95-236
PartiesGerard WILLIAMS v. Dennis O'BRIEN and another.
CourtSupreme Court of New Hampshire

Boutin & Solomon, P.A., Londonderry (Peter M. Solomon, on the brief and orally), for plaintiff.

Devine, Millimet & Branch, P.A., Manchester (Cynthia A. Satter, on the brief and orally), for defendant Brenda Trudeau.

McDonough & O'Shaughnessy, P.A., Manchester, for defendant Dennis O'Brien, filed no brief.

JOHNSON, Justice.

In this interlocutory appeal, we must determine whether a driver who signals the operator of another motor vehicle to proceed has undertaken a duty of care to other motorists on the roadway. Absent special circumstances, no such duty exists. The mere act of signaling does not, by itself, create a duty to insure the safety of other operators on the highway. However, if the signaling driver knows, or should know of special circumstances which create, or could reasonably create, a foreseeable risk of harm to third party operators on the roadway, then a legal duty to exercise reasonable care exists. For example, if the signaler knows, or in the exercise of reasonable care should know, that the signalee's visibility of other motorists is obstructed, then the signaler assumes a duty to exercise reasonable care in giving a signal.

Upon review of the specific facts set forth in the pleadings, we find that in this case no special circumstances were pleaded. Therefore, we affirm the decision of the Superior Court (Arnold, J.) granting defendant Trudeau's motion to dismiss count II of the plaintiff's writ.

This action arises out of a daytime automobile accident at the intersection of South Willow Street and Upton Street in Manchester. Upton Street runs west to east and intersects at a "T" with South Willow Street, which runs north to south. Defendant Dennis O'Brien, who had been traveling in an easterly direction on Upton Street, had stopped and was waiting to make a left-hand turn onto South Willow Street. His co-worker, defendant Brenda Trudeau, traveling northbound on South Willow Street, had stopped in the left-hand travel lane at the intersection and was waiting to make a left-hand turn onto Upton Street. Trudeau signalled to O'Brien to make the left-hand turn onto South Willow Street in a northerly direction. At the same time, the plaintiff, Gerard Williams, was traveling southbound in the outer left travel lane of South Willow Street. As O'Brien drove his vehicle onto South Willow Street, he collided with Williams' vehicle, causing it to slide on its roof into Trudeau's vehicle. As a result of the accident, Williams was severely injured. Williams sued both defendants, alleging that Trudeau undertook a duty of care to him when she signaled O'Brien to proceed, and that she breached that duty by failing to make certain that South Willow Street was clear. Trudeau moved to dismiss Williams' claim. The superior court granted the motion, concluding that Trudeau owed no duty to the plaintiff. A motion for reconsideration was denied, and the superior court subsequently approved this interlocutory appeal.

When reviewing the grant of a motion to dismiss, we must determine "whether the allegations [in the plaintiff's pleadings] are reasonably susceptible of a construction that would permit recovery." Rounds v. Standex International, 131 N.H. 71, 74, 550 A.2d 98, 100 (1988) (quotation omitted). A motion to dismiss must fail if the facts as pleaded by the plaintiff and all reasonable inferences drawn therefrom would constitute a basis for legal relief. Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742, 745, 571 A.2d 276, 278 (1990). The court "must rigorously scrutinize the complaint to determine whether, on its face, it asserts a cause of action. What is involved is a pre-trial, threshold inquiry that tests the facts in the complaint against the applicable law." Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44-45, 534 A.2d 706, 708 (1987).

Williams contends that Trudeau owed a duty to other drivers to insure that the roadway was clear when she motioned to O'Brien to make the left-hand turn. Trudeau answers that, as a matter of law, a signaling driver owes no such duty simply because she gratuitously allowed another driver to proceed. Courts that have addressed this issue are split on whether a duty of care arises when signaling other drivers. See Kerfoot v. Waychoff, 501 So.2d 588, 589 (Fla.1987). Some courts hold that a hand signal indicates only a willingness to yield the right of way and, as a matter of law, creates no duty on the part of the signaling motorist. E.g., Devine v. Cook, 279 P.2d 1073, 1082 (Utah 1955). Other courts hold that the meaning of a hand signal cannot be determined as a matter of law and, therefore, is properly a question for the jury. E.g., Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459, 462 (Pa.Super.Ct.1987). Previously, we implicitly found a duty of care on the part of a signaling motorist in Currier v. Grossman's of New Hampshire, Inc., 107 N.H. 159, 161, 219 A.2d 273, 274 (1966). There, we determined that the trial court had "stated the law accurately" when giving a jury instruction that reasonable reliance on a hand signal by another motorist would absolve the plaintiff of contributory negligence. Id.

This is not to say, however, that all hand signals create a duty of care on the part of the signaler. In Currier, the defendant signaled the plaintiff to pass on the left because the plaintiff's view was obstructed by the defendant's truck. The plaintiff therefore reasonably relied on the signal as an indication that "the way ahead was clear." Id. at 160, 219 A.2d at 279. Where, as in the Currier case, the signalee's view is obstructed or there is some incidence of reasonable reliance by the signalee, the signaler has an obligation to exercise due care when "waving on" another driver. Therefore, while we find that as a matter of law signaling another driver to proceed does not create a duty of care, there is a "narrow class of cases" in which

[i]t is possible that under certain conditions upon certain highways, such as hills or in the nighttime, a driver of a motor vehicle in signaling a car ... might, by such a signal or conduct on the part of the driver, be responsible for an accident in which the person relying upon such signal to proceed became involved.

Giron v. Welch, 842 P.2d 863, 864 (Utah 1992) (quotation omitted).

In New Hampshire, absent the existence of a duty, a defendant cannot be liable for negligence, and "[w]hether a duty exists in a particular case is a question of law." Walls v. Oxford Management Co., 137 N.H. 653, 656, 633 A.2d 103, 104 (1993). Williams contends that "public policy dictates that a duty to act reasonably and prudently...

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