Hoekman v. Nelson
| Citation | 614 N.W.2d 821,2000 SD 99 |
| Decision Date | 26 July 2000 |
| Docket Number | No. 21270.,21270. |
| Parties | Alvin HOEKMAN and Bette Hoekman, Plaintiffs and Appellants, v. Timothy NELSON and Federal Express Corporation, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
Chad W. Swenson, A. Russell Janklow, Mathew T. Tobin of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
Mark Haigh, Melissa C. Hinton of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
[¶ 1.] In this personal injury action plaintiff Alvin Hoekman (Hoekman) appeals the circuit court's grant of summary judgment to defendant Federal Express Corp. (Federal Express), determining that while Federal Express owed a limited duty of care to him, Hoekman was contributorily negligent more than slight as a matter of law. We affirm on the basis that the duty of care of Federal Express in these circumstances extended only to ensure Hoekman's safe passage in front of the Federal Express vehicle.
[¶ 2.] On October 17, 1995, Hoekman was injured as he crossed South Burr Street in Mitchell, South Dakota. An employee with the Iverson Max automobile dealership in Mitchell, he had walked across the street to the Quick Fill Gas Station, and was returning to Iverson Max. Instead of crossing at the designated intersection approximately 100 feet away which contained traffic lights, Hoekman crossed the two southbound lanes of traffic on Burr Street and was standing in or next to the left-hand, northbound lane of traffic. While Hoekman was attempting to cross in the middle of the street, a northbound Federal Express truck, driven by James Reinholt, approached and came to a stop, as he believed he would have hit Hoekman with his side mirror if he had not stopped.
[¶ 3.] Reinholt signaled to Hoekman by waving his hand, which Hoekman interpreted to mean "[g]o ahead and pass in front of my vehicle." Hoekman began jogging across the remainder of Burr Street, but after safely passing in front of the Federal Express truck, he was struck in the adjacent outside lane of traffic by an on-coming northbound vehicle driven by Timothy Nelson. At no time did Hoekman look to see if there were any on-coming vehicles in the lane outside of the Federal Express truck. Reinholt testified he never saw Nelson prior to the impact with Hoekman.
[¶ 4.] The collision propelled Hoekman's body approximately 10 feet from the point of impact. Hoekman sustained a fractured left hip, fractured right leg, injuries to his elbows and shoulders, and his left femur was completely severed from the ball socket.
[¶ 5.] Hoekman brought a personal injury action against both Federal Express and Nelson. The complaint against Nelson was eventually dismissed for lack of timely service. Federal Express filed a motion for summary judgment, claiming: (1) its driver owed no duty of care to Hoekman beyond its own lane of travel; (2) its driver had not been negligent in giving the hand signal; and, (3) Hoekman was contributorily negligent more than slight. After a hearing, the circuit court granted the summary judgment motion of Federal Express, finding that while Federal Express owed a duty of care to Hoekman as he passed in front of the truck, Hoekman had been contributorily negligent as a matter of law. Hoekman appeals, raising the following issue for our consideration:
Whether the circuit court erred in granting summary judgment to Federal Express.
STANDARD OF REVIEW
[¶ 6.] Our standard for reviewing the grant or denial of a summary judgment motion in actions which involve tort claims is well settled. This Court stated in Estate of Shuck v. Perkins County: Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).
[Julson v. Federated Mutual Insurance Company,] 1997 SD 43, ¶ 5, 562 N.W.2d 117, 119 (quoting Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850, 852); accord VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 876 (S.D.1983).
1998 SD 32, ¶ 6, 577 N.W.2d 584, 586
. Although we may not agree with the rationale of the circuit court, we will uphold summary judgment if there is a valid basis to do so. St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994) (citing King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993)).
[¶ 7.] The Extent of the Duty of Federal Express Towards Hoekman.1
[¶ 8.] Whether a duty exists is typically a matter of law to be decided by the court, not a jury. Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995). "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Tipton v. Town of Tabor, 1997 SD 96, ¶ 12, 567 N.W.2d 351, 357 (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 53, at 356 (5th ed. 1984)); 57A Am.Jur.2d Negligence § 83. In order to maintain a negligence action and before a defendant can be found negligent, a plaintiff must prove a duty existed from the defendant to the plaintiff. See Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 7, 545 N.W.2d 823, 825
(); Yankton Prod. Credit Ass'n. v. Jensen, 416 N.W.2d 860, 864 (S.D.1987) (); Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D.1985) ().
[¶ 9.] The dispositive issue in this case is: does a genuine issue of material fact exist whether the Federal Express driver owed Hoekman a duty, and was thus negligent, in giving him a hand signal. Federal Express contends that it did not owe Hoekman a duty of care once he safely passed in front of the truck, that the driver's signal merely signified a yielding of its driver's right-of-way and that the signal could not have been reasonably interpreted as a representation that Hoekman could safely proceed across the entire remainder of the street. Hoekman argues Federal Express owed him a duty of care to assure his safety across the street after giving the hand signal, and whether Federal Express breached that duty is a question of fact for the jury to decide. He also argues the meaning of the Federal Express driver's hand signal is a question of fact to be resolved by a jury.2
[¶ 10.] Whether a driver of a motor vehicle can be held to be negligent in giving this type of hand signal is an issue of first impression in South Dakota. Many courts have confronted this issue, and there is a distinct split of authority. See Joseph B. Conder, Annotation, Motorist's Liability For Signaling Other Vehicle Or Pedestrian To Proceed, Or To Pass Signaling Vehicle, 14 A.L.R.5th 193 (1993) (citing cases) [hereinafter Conder]. Almost all courts which have ruled on this issue agree that a driver has no affirmative duty to signal or warn another vehicle or pedestrian whether or not to proceed or pass. See, e.g., Peka v. Boose, 172 Mich.App. 139, 431 N.W.2d 399, 401 (1988)
; Conder, supra at 202. However, courts are divided on the issue of whether a driver's signal creates a jury question concerning negligence. See generally Conder, supra. Decisions holding that a driver giving a signal to another motorist or pedestrian can constitute negligence, rely upon the rationale stated by Justice Cardozo: "[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Nolde Brothers, Inc. v. Wray, 221 Va. 25, 266 S.E.2d 882, 884 (1980) (citing Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922)). Other courts rely on a similar principle found in the Restatement (Second) of Torts § 324A, which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or third person upon the undertaking.
See e.g., Lindsley v. Burke, 189 Mich.App. 700, 474 N.W.2d 158, 160-61 (1991)
; Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459, 461 (1987); Cunningham v. National Service Industries, Inc., 174 Ga.App. 832, 331 S.E.2d 899, 902 (1985). While this Court has adopted the Restatement (Second) of Torts § 324A (),3 we have not applied it to facts and circumstances present in this case. Hoekman argues § 324A is applicable to these facts, claiming the Federal Express...
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