Jacob Key, Ted J. Brown, and Sally A. Brown (collectively “the Defendants”) appeal the jury’s verdict and trial court’s judgment of $990,000 against them. They argue that the trial court erred in denying their motion for summary judgment, motion for judgment on the evidence, and motion for a directed verdict. They also argue that the trial court erred in instructing the jury on assumption of duty using the Restatement (Second) of Torts. Finding that a signaling driver may owe a duty of care to a third party motorist as a matter of law when his actions result in the reasonable reliance by the signaled driver that traffic is clear, we hold that the trial court did not err in denying the motions. We also hold that although the jury instruction for assumption of duty was given in error, it was harmless because it properly encapsulates Indiana’s negligence law. We therefore affirm.
However, the Defendants appear to be correct that this precise issue has not yet been directly addressed by any Indiana court. But, whether a duty exists is generally a question of law, Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003), and in Webb, our Supreme Court articulated a balancing test to determine whether a duty exists. In order to impose a duty at common law, the court must balance (1) the relationship between the parties, (2) the reasonable foreseeability of the harm to the person injured, and (3) public-policy concerns. We hold that the trial court did not err in denying all of the Defendants’ motions, as a balancing of the Webb factors under these circumstances shows that Key owed a duty of care to Hamilton as a matter of law.
A. Relationship Between the Parties
Admittedly, there is no natural and readily apparent relationship between Key and Hamilton. However, looking at the circumstances of this case, we find that there was in fact a relationship between the two parties based on these particular facts.
In this case, Owens, as the signaled driver, undoubtedly had a relationship with Hamilton when turning left in front of him. Statutes make it clear that drivers have a duty to yield to drivers already in an intersection. Indiana Code section 9-21-8-31 provides:
(a) A person who drives a vehicle shall do the following:
(1) Stop as required under this article at the entrance to a through
(2) Yield the right-of-way to other vehicles that have entered the intersection from the through highway or that are approaching so closely on the through highway as to constitute an immediate hazard.
(b) After yielding as described in subsection (a)(2), the person who drives a vehicle may proceed and persons who drive other vehicles approaching the intersection on the through highway shall yield the right-of-way to the vehicle proceeding into or across the through highway.
(emphasis added). Similarly, Indiana Code section 9-21-8-32 provides:
A person who drives a vehicle shall stop at an intersection where a stop sign is erected at one (1) or more entrances to a through highway that are not a part of the through highway and proceed cautiously, yielding to vehicles that are not required to stop.
But while Owens, the signaled driver, had a duty to yield to Hamilton in the intersection, the issue is not whether Owens had a duty, he did, but rather whether Key, the signaling driver, also had a duty to Hamilton through his actions. We recognize that other states have found no liability for the signaling driver because of a non-delegable duty on the part of the signaled driver. Gilmer v. Ellington, 70 Cal. Rptr. 3d 893 (Cal. Ct. App. 2008); Arnold v. Chupp, 92 S.E.2d 239, 243 (Ga. Ct. App. 1956); Peka v. Boose, 431 N.W.2d 399 (Mich. Ct. App. 1988); Van Jura v. Row, 191 N.E.2d 536 (Ohio 1963). But we do not believe the analysis is so simple. Just because Owens had a duty to yield to Hamilton at the intersection does not preclude others, including Key, from also having a duty of care to Hamilton or any other motorist on the road at the same time. For example, there can be no doubt that the injured Hamilton owed a duty of care when he entered that intersection. Likewise, had there been a police officer directing traffic at the scene, he would have also owed a duty of care. The point is that more than one person may have a duty of care in a particular situation. Consequently, the question is not whether Key was taking away Owens’s duty toward Hamilton in this situation; rather, the question is whether he had his own individual duty toward Hamilton. [Footnote omitted.]
Turning to the relationship between Key and Hamilton, Key admittedly did not have any knowledge of Hamilton’s presence and Hamilton did not have any knowledge of Key’s signal to Owens before the collision. However, the circumstances surrounding the accident are such that they nonetheless point to a relationship between Key and Hamilton as both were driving on the same road, at the same time, at the same location. Further, before the accident occurred, Key investigated the traffic behind him thoroughly before determining that it was clear for Owens to turn left. Key was not just sitting in his truck, signaling to Owens, indicating that he only spoke for himself when he said that he was going to allow Owens to turn left in front of him. Rather, Key got out of his truck, stood on the doorsill, and examined the traffic situation behind him. It was only after that thorough inspection that he waved Owens through the intersection. Owens, watching Key through all of this, testified that he relied upon Key’s “all clear” before pulling out.
Based on these circumstances, we find that these actions were sufficient to create a relationship between Key and Hamilton under this first Webb factor.
B. Reasonable Foreseeability of the Harm
Under the Webb analysis, harm is foreseeable if “the person actually harmed was a foreseeable victim and . . . the type of harm actually inflicted was reasonably foreseeable.” Webb, 575 N.E.2d at 997. Hamilton’s injuries were not only a natural consequence of Key’s actions, they were also foreseeable as a result of Key’s actions. Although Owens admittedly did not pull his truck out any differently than he would have had Key not signaled to him, Appellant’s Br. p. 30, he also admitted that he would not have pulled out into the intersection at all had Key not signaled to him. Appellant’s App. p. 100. Key further admitted at trial that waving someone into an intersection can place the signaled person in a position of danger if there is oncoming traffic. See Tr. p. 217. With this reliance by Owens and Key’s awareness of the potential danger resulting from his actions, it is reasonable to infer that Hamilton’s injuries were foreseeable.
Additionally, before the accident occurred, Key investigated the traffic behind him before determining that it was clear for Owens to turn left. Key was not just engaging in the typical courtesy wave, indicating that he only was going to allow Owens to pass in front of him. Instead, he engaged in a thorough examination of the traffic behind him before waving Owens through, indicating that it was “all clear.” Key genuinely believed the intersection was clear, as he testified that he would not put someone in the “position of danger” if there was oncoming traffic.” Id.
Because of this investigation on the part of Key, it was reasonably foreseeable that Owens would rely on this signal and pull into the intersection without being able to see oncoming traffic himself due to the obstruction caused by Key’s truck. If there was an unseen oncoming motorist, like Hamilton, it would be foreseeable that Owens could collide with him in the intersection as a result of his reasonable reliance on Key’s “all clear” signal.
C. Public Policy Concerns
Society has an expectation that individuals will be held liable for the results of their actions. Public policy, therefore, demands that we hold an individual responsible for the reasonably foreseeable results of his behavior; allowing an individual to escape liability for damage he causes would fly in the face of the normal expectations of our civil society. As a result, we find that imposing a duty of care upon Key and therefore allowing a jury to weigh the facts and apportion fault as it deemed appropriate is in furtherance of sound public policy.
Specifically, the injuries sustained as a result of Key’s actions were not too remote that holding Key liable would be illogical, unfair, or risk not putting a potential tortfeasor on notice that he could be held liable for his actions. Imposing liability on Key would also not place an unreasonable burden on him; he did not have to act in the way that he did, but once he decided to, society demands that he should be held liable for the reasonably foreseeable results of his actions. Finally, there is a sensible stopping point to this creation of a duty. The commonly used courtesy wave will never be sufficient to create a duty on the part of the signaling driver. It is only when a driver engages in such a thorough examination of traffic in order to ensure another driver’s safety and gives an “all clear” signal, as was the case here, that a duty can be found.
Further, we also do not share our colleague’s fears that this will discourage courteous driving behavior or diminish the responsibility of signaled drivers. Finding that Key owed a duty to Hamilton will not discourage courteous driving behavior in Indiana. This is so because the ordinary “wave on” would not result in liability. This decision will not generate liability for the courteous driver who, for example, allows someone to pass through an intersection with a four-way stop sign ahead of him. That behavior does not create a relationship between the two drivers, nor should it. If that courteous driver, however, were to engage in such behavior as Key did to ensure the other driver’s safety in passing through the intersection, behavior that was reasonably relied upon by Owens, then he will be held to have a duty to that other driver. This will neither be a shock to our citizens nor discourage the everyday courtesy wave.
We also respectfully disagree with our colleague that this will diminish the liability of the signaled driver. We do agree that no motorist may reasonably rely upon a simple hand gesture by another motorist as a guarantee that “all is clear.” However, when a motorist engages in such a thorough inspection of the traffic situation, a motorist should be able to reasonably rely on that driver’s assessment to some extent. We should not let someone escape liability completely when they have represented to another driver that they have done a thorough inspection of oncoming traffic and determined it is safe to proceed. Key himself said at trial that he would not put another driver in danger by instructing him into the intersection if there was oncoming traffic, Tr. p. 217, and we should not expect that this would be a common practice of other motorists. But, if a collision occurs, the individual whose actions initiated the chain of events that led to it should not be devoid of all responsibility.
After analyzing the three factors articulated in Webb, we hold that Key, as the signaled driver, owed a duty to the injured Hamilton as a matter of law. Once duty was established, the jury appropriately determined fault under our comparative negligence statute assigning fault as 5% to Hamilton, 45% to Key, and 50% to non-party Owens.
BAKER, J., concurs.
MATHIAS, J., dissents with separate opinion.
MATHIAS, J., dissenting
I respectfully dissent.
At issue in this case is whether a motorist who halts his own lane of traffic and signals to another driver to proceed across his lane can be liable to a third party who collides with the signaled driver in an adjacent lane beyond. This is a question of first impression in Indiana. [Footnote omitted.] While the majority and I analyze these facts under the rubric set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), the majority concludes that, under the circumstances of this case, Key assumed a duty to Hamilton by signaling Owens to proceed. I disagree.
Based upon my consideration of the Webb factors, I would hold that, as a matter of law, a driver who signals to another driver to proceed through an intersection owes no duty to a third party with whom the signaled driver collides. Applying this holding to the designated facts of the present case at the time of Key’s motion for summary judgment, I believe that Key owed no duty to Hamilton as a matter of law. It was Owens’s statutory and common law duty to ensure that the intersection was clear before entering; and statute, public policy and common sense all support the conclusion that this duty is one that cannot be delegated to another, well-meaning and courteous motorist.
Because I am of the opinion that Key did not owe a duty to Hamilton, I would reverse, holding that the trial court should have granted summary judgment in favor of the Defendant Key. I believe that the evidence adduced at trial even more strongly confirms Key’s lack of duty as a matter of law and that either Key’s motion for judgment on the evidence or his motion for directed verdict should have been granted, as well. At every procedural step in this case, duty was a matter of law for determination by the court, and to be resolved in Key’s favor under Webb v. Jarvis, rather than a question of fact for the jury.