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November 22, 1999


The opinion of the court was delivered by: Orlofsky, District Judge.


At a time when "road rage" has become commonplace on our highways, this case requires this Court to decide whether a courteous wave by one driver to another can give rise to liability. Approximately three years ago, Plaintiff Walter C. Boucher ("Boucher") and Defendant Alarick B. Grant ("Grant") were involved in an automobile accident outside of the Getty gas station on Blackwood-Clementon Road in Clementon, New Jersey. In his Complaint, Boucher alleges, among other things, that Grant's vehicle was negligently "waved" out of the gas station by an unidentified employee of the United States Postal Service. See Complaint at ¶ 4. The United States of America, one of the defendants in this action, has moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56(e),*fn1 against Plaintiff, Boucher. See Notice of Motion (filed May 4, 1999). For the reasons set forth below, I shall deny the motion of the United States because I find that there are genuine issues of material fact and that the United States is not entitled to judgment as a matter of law.


The accident giving rise to this negligence action, brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq. ("FTCA"), occurred on December 6, 1996, near the intersection of Blackwood-Clementon Road and College Drive in Clementon, New Jersey. See Gov't Br. Supp. Summ. J. ("Gov't Brief") at 1. The summary judgment record reveals that Blackwood-Clementon Road has east and west lanes of travel, with varying numbers of lanes at different points along the road. See Gov't Ex. 6. A Getty gas station is located on the easterly side of Blackwood-Clementon Road, near the intersection of College Drive. See generally Complaint at ¶ 4.

On December 6, 1996, Boucher was in his automobile traveling eastbound on Blackwood-Clementon Road. See Complaint at ¶ 3; Gov't Brief at 2. Of the three lanes running east, Boucher was traveling in the left-turn-only lane, or the lane farthest to the left. See Ex. 5 (Boucher Dep.) at 50. Simultaneously, Grant, with his left turn signal activated, was attempting to exit the Getty gas station to travel west on Blackwood-Clementon Road, see Ex. 8 (Grant Dep.) at 79, a direction of travel that would require Grant to cross the three eastbound lanes of traffic.

The traffic light at the intersection of Blackwood-Clementon Road and College Road turned red and cars began to slow and stop accordingly. See Ex. 5 (Boucher Dep.) at 55; Ex. 8 (Grant Dep.) at 53-55. Grant testified that the driver of a United States Postal Service ("USPS") delivery truck, traveling in the middle eastbound lane, and an unidentified passenger automobile, traveling in the far-right lane (nearest the Getty station), both stopped just before reaching the Getty station exit. At that point, the unidentified postal employee indicated with a hand wave or gesture that Grant could "come on out." See Ex. 8 (Grant Dep.) at 63-64, 67-68, 73, 81; see also Ex. 8 Diagram. After waiting a few seconds, Grant drove out past the passenger and USPS vehicles and stopped directly in front of the USPS truck. See Ex. 8 (Grant Dep.) at 76-80.

At that point, Grant looked in both directions. To his right, Grant saw that the traffic light was still red. See id. at 80-81. The view to Grant's left, however, the left-turn-only lane, was obstructed by the USPS truck. See id. at 81. Grant testified that he did not remember the USPS employee making any further gestures. See id. at 76. As Grant brought his car into the left-hand-turn only lane, he collided with Boucher's oncoming vehicle, spinning Boucher's car so that it came to a stop facing west, or in the opposite direction from which it originally had been traveling, and allegedly injuring Boucher. See Ex. 5 (Boucher Dep.) at 92; see generally Ex. 8 (Grant Dep.) at 83, 85 (stating that after he inched the car forward and it hit Boucher's vehicle, Grant's car was in the same position while "[Boucher's] car was down the street").

Boucher further testified that, within a minute after the accident, Grant alighted from his vehicle, approached Boucher's car, asked Boucher if he was alright, apologized, and told Boucher that "[h]e thought the road was clear because the guy in the truck waved him on, said it was okay to come out." See Ex. 5 (Boucher Dep.) at 97-98; see also Ex. 4 (Boucher Interrog.) at ¶ 17 ("Grant came up to my car immediately after the accident and told me he thought the way was clear because the postman `waived [sic] me on'").

On June 15, 1998, Boucher brought suit against, among others, the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (1994), alleging that John Doe # 1, the unidentified USPS employee that waved to Grant, negligently "fail[ed] to keep a proper lookout, fail[ed] to sound a warning, negligently signal[ed] defendant Grant to enter the highway when the roadway was not clear, fail[ed] to yield to a vehicle in the roadway and such other acts of negligence as may be disclosed through pretrial discovery and/or testimony at the time of trial." Complaint at ¶ 7.

On May 4, 1999, the United States moved before this Court for summary judgment, pursuant to Federal Rule of Civil Procedure 56(e). See Notice of Motion (filed May 4, 1999). In support of its motion, the Government alleges that there are no genuine issues of material fact on two elements of Boucher's negligence claim and, therefore, the United States is entitled to judgment as a matter of law. See Gov't Brief at 7; Gov't Supp. Brief at 8. Specifically, the Government contends that the USPS employee's signal was not the proximate cause of the automobile accident because: (1) Grant interpreted the USPS employee's signal as simply allowing Grant to occupy the space in front of the USPS truck, not as an "all lanes are clear" signal; and (2) Grant did not rely on the "hand wave" because he hesitated in leaving the gas station. Moreover, the Government argues that the summary judgment record contains no evidence that the unidentified postal worker acted negligently.

In opposition to the Government's motion, Boucher argues that genuine issues of material fact exist because Grant relied on the postal employee's signal, interpreted as meaning "[g]o ahead." Pl.'s Br. Opp. Summ. J. ("Pl.'s Brief") at 4. In support of his argument, Boucher relies on both the deposition testimony and Grant's statements to Boucher immediately following the accident, which he contends are admissible for purposes of summary judgment because the statements are either an admission by a party opponent, pursuant to Fed.R.Evid. 801(d)(2)(A),(C), and (D), a present sense impression, or excited utterance, under Fed.R.Evid. 803(1) and (2), respectively, or res gestae. See Pl.'s Brief at 2-3. Furthermore, Boucher argues that under Thorne v. Miller, 317 N.J. Super. 554, 722 A.2d 626 (Law Div. 1998), the issue of the postal employee's negligence is "a factual issue appropriate for a jury." See id. at 5 (quoting Thorne, 317 N.J.Super. at 561, 722 A.2d 626).


"On a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed.R.Civ.P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "In opposing summary judgment, a party `must do more than simply show that there is some metaphysical doubt as to material facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence." Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id.

If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed. R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movant only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175.


Under the FTCA, civil actions are permitted against the United States for:

  injury or loss of property, or personal injury or
  death caused by the negligent or wrongful act or
  omission of any employee of the Government while
  acting within the scope of his office or employment,
  under circumstances where the United States, if a
  private person, would be liable to the claimant in
  accordance with the law of the place where the act or
  omission occurred.

28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . ."); Richards v. United States, 176 F.3d 652, 654 (3d Cir. 1999). Moreover, "the FTCA provides that the United States is liable for tort claims in accordance with the law of the place where the tortious act occurred." Witty v. United States, 947 F. Supp. 137, 141 (D.N.J. 1996) (Orlofsky, J.) (citing Reo v. United States Postal Service, 98 F.3d 73, 75 (3d Cir. 1996)). In this case, because the allegedly tortious act of the USPS employee occurred in Clementon, New Jersey, the determination of whether any genuine issues of material fact exist must be made pursuant to New Jersey law. See Witty, 947 F. Supp. at 141.

New Jersey has joined a host of other states in finding that a driver who gratuitously "waves" to another driver, in an effort to facilitate the "waved driver's" course of passage, assumes a duty of care. See Thorne v. Miller, 317 N.J. Super. 554, 557, 722 A.2d 626 (Law Div. 1998).*fn2 Once this duty is undertaken, the waving driver must act reasonably under all the circumstances confronting the drivers involved. See id. at 560, 722 A.2d 626. Thus, like other negligence actions, the essential elements of an actionable claim of negligence in a "waving driver" case are: (1) the existence of a duty of care; (2) the defendant's breach of that duty; (3) the breach was the proximate cause of the plaintiff's harm; and (4) the plaintiff suffered actual damages. See Weinberg v. Dinger, 106 N.J. 469, 484, 524 A.2d 366 (1987).

A. Proximate Cause

1. The Interpretation of the Hand Wave

The Government first contends that Grant's deposition testimony precludes the finding that the unidentified postal employee's wave proximately caused Boucher's injuries. Boucher, on the other hand, argues that the deposition testimony and the statements immediately following the accident reveal the existence of a genuine issue of material fact.

A driver's courteous wave indicating that he will remain in place and permit another motorist to proceed is open to two opposing interpretations. See Cofield v. Nuckles, 239 Va. 186, 192, 387 S.E.2d 493, 496 (1990). Such a gesture could signal to the receiver either that safe passage is limited to the area in front of the signaler's vehicle, or, more broadly, that passage is safe beyond the signaler's vehicle. See id., 239 Va. at 192, 387 S.E.2d at 496. Because a signal interpreted as limiting the safe passage area to that solely in front of the signaler's vehicle cannot be the legal cause of an accident outside of that area, liability ensues only when the signal communicates the message that the driver can proceed safely across both lanes. See Isaacs v. Larkin Elec. Co., No. 16948, 1998 WL 906394, at *4 (Ohio Ct. App. Sept. 4, 1998); Askew v. Zeller, 361 Pa. Super. 35, 42-43, 521 A.2d 459, 463 (1987) (finding that summary judgment was appropriate on causation grounds where uncontradicted deposition testimony established that driver interpreted signaling gesture not as signal that both lanes were clear, but that the signaler would remain stopped and driver was clear to proceed only through that lane). Where reasonable minds can differ on the interpretation of the signal, summary judgment is inappropriate. See Frey v. Woodard, 748 F.2d 173, 176 (3d Cir. 1984); Claxton v. Hutton, 615 N.E.2d 471, 475 (Ind.Ct.App. 1993); Cunningham v. National Serv. Indus., Inc., 174 Ga. App. 832, 838, 331 S.E.2d 899, 904 (Ga.Ct.App. 1985); Massingale v. Sibley, 449 So.2d 98, 101 (La.Ct.App. 1984).

Although replete with ambiguous statements, the deposition testimony of Grant contains the following brief moment of clarity:

  Q(by Assistant United States Attorney Paul A.
  Blaine): Did you understand the gesture that the
  driver of [the USPS delivery truck] made to mean
  anything other than you could come out in ...

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