Making Gestures on the Road Again

As New Yorkers move through many changes this year, one thing going back to its ugly normal does seem to be traffic. As more of us drive regularly, including new, less experienced drivers, a familiar scene often presents itself: you arrive at an intersection at the same time as another driver. Each driver rolls a bit, (as well as any runner, pedestrian, or cyclist) looking for some acknowledgement that he or she is “good to go.” Now, depending on how courteous you are, you wave your hand or gesture to let the others know it is “OK” to proceed. Seeing your signal, the others proceed on their way. Unfortunately, your well-intentioned gesture potentially exposed you to legal liability.

This scenario played out in several court cases. For example, in Pittman v. Ball, (decided this year) a vehicle and a school bus arrived at an intersection with each intending to make a left turn. Under the heading “no good deed goes unpunished”, the driver of the school bus gestured to the car to go ahead and make his turn. Believing it safe to turn, he did and was struck by another vehicle in the lane next to the school bus. In denying the motion to dismiss the case against the waving driver, the local Supreme Court ruled that when a driver chooses to signal to another person, indicating that it is safe to proceed, that driver assumes a burden of responsibility. Similarly, in the case of Dolce v. Cucolo, the Court found that in cases where one driver gestures to another, if the recipient of the gesture relied on it as an indication that the path was safe and clear “the burden falls on the gesturer”. Similar court rulings have been applied to drivers who wave or gesture to pedestrians.

Drivers of all ages and vehicles should therefore be aware of the potential pitfalls of being polite

Drivers must think twice before waving or gesturing, since doing so creates a burden should an accident ensue. Specifically, the burden will be on the “waving driver” to establish that it was safe for the other driver to proceed, regardless of the actions of other motorists. Notably, although motorists have an obligation to “see what is to be seen” and otherwise operate their vehicles in a non-negligent manner, court case results make clear that drivers must be mindful of their entire surroundings before gesturing to another.

Jason Katz, Esq., Lewis Johs Avallone Aviles, LLP