Kerfoot v. Waychoff

• Citation: 12 Fla. L. Weekly 82,501 So.2d 588
• Decision Date: 29 January 1987
• Docket Number: No. 67303,67303
• Parties: 12 Fla. L. Weekly 82 Rodney KERFOOT, Petitioner, v. Charlie Earnest WAYCHOFF, et al., Respondents.
• Court: Florida Supreme Court

Page 588

501 So.2d 588

12 Fla. L. Weekly 82

Rodney KERFOOT, Petitioner, v. Charlie Earnest WAYCHOFF, et al., Respondents.

No. 67303.

Supreme Court of Florida.

Jan. 29, 1987.

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

Richard A. Sherman of the Law Offices of Richard A. Sherman, Fort Lauderdale, for respondents.

OVERTON, Justice.

This is a petition to review Kerfoot v. Waychoff, 469 So.2d 960 (Fla. 4th DCA 1985), in which the Fourth District Court of Appeal certified the following question as being of great public importance:

Does an automobile driver who, by signals, relinquishes his right of way to another vehicle, owe any duty to reasonably ascertain whether traffic lanes, other than his own, will safely accommodate the other vehicle?

Id. at 963. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The district court answered in the negative. We agree and approve its opinion, noting, however, that our decision is limited to the factual circumstances of this case.

Petitioner, Kerfoot, was driving his motorcycle on U.S. 1 in the outside northbound lane. The respondent Severson was in the inside northbound lane. The respondent Waychoff's automobile was in a turn lane facing south, waiting to turn left and cross the two northbound lanes. Respondent Severson stopped his vehicle where Waychoff's vehicle was facing him because traffic in Severson's northbound lane was moving slowly. Severson motioned with his left hand for Waychoff's automobile to cross in front of him. Waychoff saw the automobiles lined up behind Severson's vehicle but could not see anything in the outside northbound lane. Waychoff testified that he interpreted Severson's signal to mean no approaching traffic in either northbound lane posed a threat to Waychoff's crossing. Waychoff proceeded to turn, colliding with Kerfoot's motorcycle, which was proceeding north in the lane adjacent to Severson's vehicle. Kerfoot claims Severson was negligent in waving to Waychoff that he could proceed.

The trial court granted Severson's motion for a directed verdict, finding that Severson's only duty was to not run into Waychoff. On appeal, the district court affirmed the trial court's finding that

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." ... "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....."

Id. at 961. The district court recognized the principle that " 'an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care,' " id. at 961 (quoting Barfield v. Langley, 432 So.2d 748, 749 (Fla. 2d DCA 1983)), but found that "the action undertaken here only required the exercise of reasonable care as to the lane occupied by the signaling driver." 469 So.2d at 963. The court accepted Severson's view that the motorcyclist, Kerfoot, distorted a simple act of courtesy by trying to convert it into a duty of care. To adopt Waychoff's logic, according to the district court, would require a driver like Severson "to sit there sphinx-like, thereby leaving the entering vehicle to guess at the intent of the stop." Id. Before this Court, Kerfoot asserts again his contention that the only proper action for Severson would be to do nothing unless he could assure the turning driver that all the adjacent northbound lanes were clear.

In considering a signaling driver's obligations, one commentator states:

However, where the situation appears to be as much within the observation and estimation of the signaled driver as it is within that of the signaling one, and the signaled driver then proceeds without proper lookout and without exercising due care, it seems that the signaling driver will not be found guilty of the negligence, on the theory that in such case he is only signaling his intention to waive his right of way.

Annot., 90 A.L.R.2d 1431, 1433 (1962). Some decisions have held that the liability of the signaling operator should not be submitted to the jury. Van Jura v. Row, 175 Ohio St. 41, 191 N.E.2d 536 (1963); Nolde Brothers, Inc. v. Wray, 221 Va. 25, 266 S.E.2d 882 (1980). On the other hand, several cases have concluded that the signaling driver's liability can be submitted to the jury. Dace v. Gilbert, 96 Ill.App.3d 199, 51 Ill.Dec. 869, 421 N.E.2d 377 (1981); Massingale v. Sibley, 449 So.2d 98 (La.Ct.App.1984); Kemp v. Armstrong, 40 Md.App. 542, 392 A.2d 1161 (1978); Wulf v. Rebbun, 25 Wis.2d 499, 131 N.W.2d 303 (1964).

We do not accept petitioner's contention that the trend is to impose liability on the signaling driver. We read the cases to mean that whether liability is determined as a matter of law is an issue resolved case by case, based on unrefuted facts of the vehicles' positions, the parties' conduct, and a reasonable interpretation of the signal under the circumstances.

In the instant case, the signaling driver, Severson, was in an almost impossible position to determine if the adjacent lane was clear of motor vehicles. Severson's own lane was full of traffic, and Kerfoot was approaching from the rear in an adjacent lane. The turning driver, in the instant case, was in fact facing the oncoming traffic. Under these facts, Severson, as the signaling driver, could not determine the status of traffic in the outside northbound lane.

On similar facts, the Utah Supreme Court, in Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073 (1955), held that the trial court erred in refusing to grant a directed verdict for the signaling driver, and stated:

All the signal amounted to, if given, was...