Kerfoot v. Waychoff

• Citation: 10 Fla. L. Weekly 1380,469 So.2d 960
• Decision Date: 05 June 1985
• Docket Number: No. 84-1218,84-1218
• Parties: 10 Fla. L. Weekly 1380 Rodney KERFOOT, Appellant, v. Charlie Earnest WAYCHOFF, et al., Appellees.
• Court: Florida District Court of Appeals

Page 960

469 So.2d 960

10 Fla. L. Weekly 1380

Rodney KERFOOT, Appellant, v. Charlie Earnest WAYCHOFF, et al., Appellees.

No. 84-1218.

District Court of Appeal of Florida,

Fourth District.

June 5, 1985.

Mathison & Deckert and Jane Kreusler-Walsh and Larry Klein of Klein & Beranek, P.A., West Palm Beach, for appellant.

Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellees-Severson and Colony Hotel, Inc.

LETTS, Judge.

This appeal arises from a motorcycle accident also involving two automobiles which resulted in a directed verdict in favor of the second of the two automobiles. We affirm.

The motorcyclist-plaintiff was headed north on heavily traveled U.S. 1 in the right-hand lane nearest the curb. At the accident site, U.S. 1 has two northbound lanes, two southbound lanes, and a southbound center turn lane. The first of the involved automobiles driven by Earnest Waychoff, was facing south in the southbound center turn lane waiting to turn left in order to traverse both northbound lanes into a bank driveway lying on the side of the highway.

Traffic in the northbound lane closest to the median had been moving slowly and the second automobile involved, being driven north by Theodore Severson, stopped. Severson then motioned with his left hand for Waychoff's automobile to cross in front of him. Waychoff saw cars stacked up behind Severson's vehicle in the same lane, but could not see anything in the northbound right-hand lane closest to the curb. Waychoff nevertheless interpreted defendant's signal as meaning no northbound traffic in either lane posed a threat to his east-west crossing. Accordingly, Waychoff made the turn, relying on Severson's signal, and crossed in front of the northbound motorcyclist causing a collision between them. Severson admitted motioning to Waychoff to proceed in front of him and also admitted that he (Severson) did not check on whether any other vehicles were advancing north in the right-hand lane next to the curb.

Severson moved for a directed verdict on proximate cause grounds arguing his negligence, if any, was merely a remote cause furnishing the occasion for a third party's negligence. The court granted the motion, finding Severson's only duty was not to run into Waychoff which indeed he did not.

In directing the verdict, the trial court reasoned Severson's waving Waychoff through could only be interpreted as meaning: "[I'm] allowing you to cut in front of me ... proceed at your risk, except I won't run into you." The court continued: "To add to that, don't worry, Mr. Waychoff, I assure you the way is clear in the other direction ... is putting undue and an unfair burden on a motorist...."

There is case law imposing an obligation to exercise reasonable care on anyone who presumes to do something, even gratuitously. Barfield v. Langley, 432 So.2d 748 (Fla.2d DCA 1983). The motorcyclist argues that Severson, by waving Waychoff through without having ascertained that Waychoff could cross both northbound lanes without danger from other vehicles traveling north, presumed to do something but did not exercise reasonable care in doing it.

Our research has uncovered no Florida cases discussing an automobile driver's duty and liability to another driver for signaling him to proceed. The trend in other jurisdictions, however, is to impose liability where the approaching driver is not in as good a position to observe the situation as the one signaling. Annot., 90 A.L.R.2d 1431 (1962). Miller v. Watkins, 355 S.W.2d 1, 4-5 (Mo.1962). In Panitz v. Orenge, 10 Wash.App. 317, 518 P.2d 726 (1973), for instance, the plaintiff alighted from a bus and was crossing the street behind it when hit by a car. The plaintiff claimed the bus driver had waved her across the street, indicating she could safely proceed. The bus driver stated he "just waved good morning, good bye, or whatever." The appellate court there held the jury should have considered whether the bus driver waved plaintiff across the street, and if so, whether he was (1) negligent in doing so without first determining if she could proceed in safety, and (2) whether such negligence was a proximate cause of her injuries. See also Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742 (1961), and Wulf v. Rebbun, 25 Wis.2d 499, 131 N.W.2d 303 (1964).

In the case at bar, the motorcyclist agrees that Severson had no duty to signal Waychoff, but argues that once Severson presumed to do so he had a duty to exercise reasonable care for those within the foreseeable zone of danger. See Barfield v. Langley, supra. Under these circumstances, the motorcyclist concludes that whether Severson owed him any duty was a question of fact for the jury.

On the other hand, we are not unmindful of a line of cases which come to the opposite conclusion. In ...