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).
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
"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
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
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
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
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).
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.
Although replete with ambiguous statements, the deposition
testimony of Grant contains the following brief moment of
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 ...