Thorne v. Miller

• Decision Date: 19 October 1998
• Parties: Joseph THORNE, Plaintiff, v. Lori B. MILLER, Rita M. St. George, Defendants. Lori B. Miller, Third Party Plaintiff, v. Donald L. Cook, Jr., Third Party Defendant. Rita M. St. George, Plaintiff, v. Lori B. Miller, Joseph J. Thorne, and Donald L. Cook, et al, Defendants. Yolanda Rivera, Plaintiff, v. Rita St. George, Lori Miller, et al, Defendants.
• Court: New Jersey Superior Court

722 A.2d 626

317 N.J. Super. 554

Joseph THORNE, Plaintiff, v. Lori B. MILLER, Rita M. St. George, Defendants.

Lori B. Miller, Third Party Plaintiff, v. Donald L. Cook, Jr., Third Party Defendant.

Rita M. St. George, Plaintiff, v. Lori B. Miller, Joseph J. Thorne, and Donald L. Cook, et al, Defendants.

Yolanda Rivera, Plaintiff, v. Rita St. George, Lori Miller, et al, Defendants.

Superior Court of New Jersey, Law Division, Burlington County.

Decided October 19, 1998.

Daniel J. Siegel, Haverton, PA (Gay and Chacker, P.C., attorneys), for plaintiff Thorne.

Steven Antinoff, Marlton (Parker, McCay & Criscuolo, attorneys), for defendant Cook.

Darren T. Hibbs, Marlton (Sue Ellen Johnson, attorney), for third party plaintiff Miller.

WELLS, A.J.S.C.

This is a negligence action stemming from a car accident that occurred in Southampton Township on February 2, 1994. The accident took place on Route 530, a four lane road running east-west with two lanes in each direction. Prior to the accident, defendant, Lori Miller, was waiting to make a left turn out of a parking lot adjacent to the westbound lanes. She wanted to go east on Route 530 and needed to cross the westbound lanes to do so. Traffic was congested. Donald Cook was driving in the slow westbound lane (the outer lane) and stopped just before the parking lot Miller needed to exit. Cook "waved out" Miller twice in a way to indicate she could exit the parking lot in front of his vehicle. Miller responded, and as she crossed the westbound lanes, she struck a car traveling in the fast westbound lane (the inner lane). That car was operated by Rita St. George, a plaintiff, and the impact caused St. George to hit a vehicle driven by Joseph Thorne, another plaintiff in this case. Miller sued Cook as a third party defendant and St. George has brought a direct claim against him.

Cook, who was not involved in the accident but for his waving gesture, brings a motion for summary judgment on the ground that he owes no duty to Miller. None of the other negligence elements are briefed, nor are they decided by this opinion.

The issue is whether a "waving driver" (Cook) owes a duty of care to a "waved driver" (Miller) and other injured parties when an accident takes place after the waving driver undertakes a gesture to facilitate the waved driver's course of passage. In other words, does a waving driver assume a voluntary duty, and if so, what is the scope of that duty? The issue is one of first impression in New Jersey, I find a waving driver does assume a duty in cases like this as a matter of law.

For the most part, Cook relies on one case in support of his position that he owes no duty to Miller. The case is Duval v. Mears, 77 Ohio App.3d 270, 602 N.E.2d 265 (Ohio Ct.App.1991). The question in Duval was "whether a duty of care should be imposed upon a motorist, who signals another motorist traveling in the opposite direction to proceed to turn left in front of her to ascertain that it is safe to do so." Id. at 267. In reaching its holding, the court drew a distinction between acts of courtesy and those of obligation. By finding the signal gratuitous and out of courtesy, the court held that the waving driver did not owe a duty to the waved driver, nor was the waving driver obligated to ascertain the waved driver's safe passage. Id. at 267-68.

I find the Duval courtesy-obligation dichotomy highly subjective and very tangential to the issues normally arising from an automobile accident: negligence, proximate cause and damages. I reject the notion that the court should not impose a duty of care on gesturing drivers because it would tend to lessen civility, in general, on the highways, a serious problem these days much in the public press. But encouraging civility at the expense of driving safety is not, in my opinion, sound public policy. Instead, I rest my analysis of whether a gesturing driver owes a duty to whom the gesture is offered on the traditional principles of New Jersey law upon which common law duties of motorists are established.

"The question of whether a duty exists is typically a matter of law property decided by the court, not the jury." Wang v. Allstate Insurance Co., 125 N.J. 2, 15, 592 A.2d 527 (1991) (citing Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529, 538 A.2d 346 (1988)). "The actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). Our courts refrain "from treating questions of duty in a conclusory fashion, recognizing that `[w]hether a duty exists is ultimately a question of fairness.'" Weinberg v. Dinger, 106 N.J. 469, 485, 524 A.2d 366 (1987) (quoting Goldberg v. Housing Auth., of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)).

In determining the existence of a duty, courts must engage in a complex analysis that weighs and balances related factors, including the foreseeability and severity of the underlying risk of harm, the ability to exercise care to prevent the harm, the comparative interests and relationships of the parties, and, "based on considerations of public policy and fairness, the societal interest in the proposed solution." J.S. v. R.T.H., 155 N.J. 330, 337, 714 A.2d 924 (1998); Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980) (quoting Goldberg, supra 38 N.J. at 583, 186 A.2d 291). Finally, once a duty is identified, its scope and boundaries must be defined. Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984). Analysis of the facts in this case and applying the above criteria show how a waving driver has a duty to a waved driver.

"Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists." J.S., supra, 155 N.J. at 337, 714 A.2d 924; Hill v. Yaskin, 75 N.J. 139, 143, 380 A.2d 1107 (1977). A driver's objective ability to foresee injury to another driver is crucial in determining whether the imposition of a duty is appropriate. Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994). On a general level, it is reasonably foreseeable that engaging in gestures to facilitate the flow of traffic can lead to accidents, and that the risk of harm from car accidents is serious. It is also reasonably foreseeable that waved drivers will rely on these gestures. From Cook's perspective, it was reasonably foreseeable that cars could have been approaching from his left rear. It was also foreseeable that an accident caused by reliance on his gesture would be serious. Thus, principles of foreseeability favor the imposition of a duty upon Cook, the waving driver.

Next, before offering the gesture, Cook had the opportunity and ability to exercise care to prevent the harm. While he was not in the best position to ascertain if a car was behind him and to his left, he could have simply glanced in his rear-view mirror or turned his head. By taking these simple precautions before he gestured, the accident may have been avoided.

Finally, the comparative interests of the parties and notions of fairness indicate a societal interest in imposing a duty upon waving drivers. Driving is rife with risk and...