United States District Court, District of New Jersey
November 22, 1999
WALTER C. BOUCHER, ET AL., PLAINTIFFS,
ALARICK B. GRANT, ET AL., DEFENDANTS.
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 testified that seconds before the crash, he saw the
postal worker in the
USPS delivery truck's left side-view mirror and that the postal
worker saw either Boucher or Boucher's car. See Ex. 5 (Boucher
Dep.) at 82-85. Boucher's deposition testimony established that
he never directly observed the postal employee, see id. at
83-84, and it later was established that the USPS truck was a
right-hand-side driven vehicle. See Gov't Supplemental Brief at
9 n. 6 (citing Ex. 8 (Grant Dep.) at 72; Ex. 9 (USPS Handbook
Excerpts)). However, Boucher testified that, through the
side-view mirror, "I saw his face. I'm pretty sure-he either saw
my face or he saw my car. He was looking at me or my car . . . at
that instance." Ex. 5 (Boucher Dep.) at 85.
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).
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.
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 front of
that vehicle, [the USPS delivery truck]?
A (by Mr. Grant): No.
Ex. 8 (Grant Dep.) at 82.
Despite this statement, which seemingly would preclude the
liability of the USPS employee, this Court is required, pursuant
to Federal Rule of Civil Procedure 56(e), to view all of the
evidence before it, including interrogatories, so long as they
contain admissible evidence. See Fed R. Civ. Pro 56(e); 10A
Wright, Miller & Kane, Federal Practice and Procedure §
In one of the interrogatories served upon Boucher, the United
States asked the following:
State in detail the basis for each allegation you
made that the party serving these interrogatories is
liable for the incident complained of and enumerate
all of the facts which you contend support each such
See Ex. 3 at ¶ 17. In response, Boucher answered that, "Mr.
Grant came up to my car immediately after the accident and told
me he thought the way was clear because the postman `waived me
on.'" Ex. 4 at ¶ 17. Furthermore, during his deposition, Boucher
Q (by Mr. Blaine): Now, after the collision, do you
remember how much time went by before Mr. Grant came
to your car?
A (by Mr. Boucher): I would guess within a minute.
Q: Well, guessing is not something we want you to do.
If you can estimate it for me, that's fine. If you
don't know how long it was, that's fine also.
A: Well, I know it was within a minute.
Q: After the vehicles came to rest, what's the next
thing you remember happening?
A: I remember looking around and seeing Mr. Grant's
car, seeing Mr. Grant get out of his car and come up
Q: Is that the first thing he did when he got out of
his car was come to your car?
Ex. 5 (Boucher Dep.) at 97-98.
Boucher contends that this evidence should be considered as
part of the summary judgment record because the statements are
admissible in evidence either as an admission by a party
opponent, pursuant to Federal Rule of Evidence 801(d)(2)(A),(C),
and (D), a present sense impression, or excited utterance, under
Federal Rule of Evidence 803(1) and (2), respectively, or res
gestae. See Pl.'s Brief at 2-3. The Government argues that the
Third Circuit's dicta in David by Berkeley v. Pueblo Supermarket
of St. Thomas, 740 F.2d 230, 235 (3d Cir. 1984), and more
specifically, its progeny, Shinners v. K-Mart Corp.,
847 F. Supp. 31 (D.Del. 1994), precludes a finding that Boucher's
statement was an "excited utterance." See Gov't Brief at 22-24.
I disagree with the Government and find that the hearsay
statements subsumed within the interrogatory answer and
deposition testimony are appropriately considered by this Court
as "excited utterances," pursuant to Federal Rule of Evidence
803(2). The Federal Rules of Evidence provide that an "excited
utterance" is admissible so long as it is "[a] statement relating
to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition."
Fed.R.Evid. 803(2). The Third Circuit has held that the
requirements for the admission of an excited utterance
include: (1) a startling occasion; (2) a statement relating to
the circumstances of the startling occasion; (3) a declarant who
appears to have had opportunity to observe personally the events;
and (4) a statement made before there has been time to reflect
and fabricate. See Miller v. Keating, 754 F.2d 507, 510 (3d
Cir. 1985) (quoting 6 J. Wigmore, Evidence §§ 1750-51 (J.
Chadbourne rev. 1976)); see also United States v. Mitchell,
145 F.3d 572, 576 (3d Cir. 1998).
An automobile accident and a contemporaneous statement by an
individual involved in that accident concerning its cause
undoubtedly satisfy the first three elements of the excited
utterance hearsay exception.*fn3 The question becomes, then,
whether the hearsay statements meet the last condition of
admissibility, namely spontaneity. See Miller, 754 F.2d at 511.
In order to consider the statements for purposes of the
Government's motion for summary judgment, this Court must make a
determination whether Grant was "under the stress of excitement"
while speaking to Boucher "immediately after the accident." See
J. Weinstein, Evidence ¶ 803.04(1999); Ex. 4 (Interrog.) at ¶
17. "For the excited utterance exception to apply, the court must
be able to find that the declarant's state of mind at the time of
making the declaration ruled out the possibility of conscious
Boucher testified that his exchange with Grant occurred "within
a minute" of the accident. See Ex. 5 (Boucher Dep.) at 97.
Grant himself testified that as a result of the crash, he was
"scared . . . shaken up." Ex. 8 (Grant Dep.) at 85. The brief
lapse of time coupled with Grant's mental state cannot give rise
to a finding of conscious reflection. Therefore, I conclude that
the statement was made while Grant was still in an excited state
and before he could reflect and fabricate.
The cases cited by the Government, David by Berkeley, 740
F.2d at 230, and Shinners, 847 F. Supp. at 31, are clearly
distinguishable from the facts of this case. In David by
Berkeley, 740 F.2d at 235, the Third Circuit affirmed the
finding that a statement made by a declarant after she saw a
pregnant woman fall directly on her stomach, and heard by three
different people who testified at the trial, was an excited
utterance. See id. However, in its determination that the trial
court was reasonable in determining that the event was in fact
"startling" and that there was insufficient time to fabricate,
the Court remarked that the decision "reached the very outer
bounds of [the trial judge's] permissible discretion" and "as
trial judges we may have ruled differently." See id.
Contrary to the Government's assertions, I do not believe that
this case presents an issue that pushes to the "very outer bounds
of [my] permissible discretion." See id. For one, the
automobile accident in this case presents a much more startling
event than a fall in a supermarket. Second, unlike the declarant
in David by Berkeley, there is testimony in this case that
Grant was "scared" and "shaken up." See Ex. 8 (Grant Dep.) at
85. Finally, the Third Circuit noted that it was reasonable to
conclude that the declarant in David by Berkeley did not have
time to fabricate since "the substance of her statement was a
matter of sensory perception, it was unsolicited and it was made
within seconds of the fall." See David by Berkeley, 740 F.2d at
235. Similarly, in this case, Grant's statement regarding the
postal employee's gesture was a matter of perception, was not
solicited by Boucher, and was made within a minute of the
The Government also relies on Shinners v. K-Mart Corp.,
847 F. Supp. 31 (D.Del. 1994) in support of its argument that Grant's
statement was not an "excited utterance." Such reliance is
misplaced. In Shinners, another case involving a store patron,
the District Court explicitly distinguished David by Berkeley
and found that a statement, heard only by the elderly victim and
made by an unidentified declarant after he saw the victim fall on
her side, was not an excited utterance. See id. at 34. Clearly,
the facts and the presence of an unidentified declarant
distinguish Shinners from the facts of this case. See e.g.
Miller, 754 F.2d at 510 ("[a]t [a] minimum, when the declarant
of an excited utterance is unidentified, it becomes more
difficult to satisfy the established case law requirements for
admission of a statement under Fed.R.Evid. 803(2)").
Because I find that Grant's hearsay statement is otherwise
admissible as an "excited utterance," the statement is properly
before this Court and must be considered as part of the summary
judgment record.*fn4 Consequently, I find a crucial discrepancy
between Grant's statement to Boucher following the accident (that
the postal worker waved Grant out) and Grant's deposition
testimony (that Grant interpreted the postal worker's gesture to
mean only that Grant was safe to travel in the USPS truck's
lane). Accordingly, I find that genuine issues of material fact
exist as to whether the postal employee's conduct was the
proximate cause of the accident involving Grant and Boucher, and
therefore summary judgment inappropriate on this ground.
2. Grant's Reliance on the Postal Worker's Gesture
The United States also argues that Grant's hesitation upon his
exit from the Getty gas station and the fact that he stopped in
front of the USPS delivery truck and independently looked for
traffic warrants a finding by this Court that Grant did not rely
on the gesture. For the reasons set forth below, I find that
summary judgment is precluded by the existence of genuine issues
of material fact regarding Grant's reliance on the postal
In "waved driver" cases, an additional element of proximate
cause involves whether or not the waved driver actually relied on
the gesture of the signaling driver. "Only with such reliance can
any act of negligence in signaling be considered a proximate
cause of the plaintiff's injuries." Isaacs, 1998 WL 906394 at
*4; see also Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824,
826 (1990) (finding that signaling driver was not the proximate
cause of collision when waved driver stated that he was not
relying on that hand signal in entering occupied travel lane).
Accordingly, summary judgment for the signaling driver is
appropriate if the facts do not support an inference that the
waved driver relied on the signal.
In this case, Grant's fleeting hesitation in pulling out of the
Getty gas station does not support a finding that he did not rely
on the postal employee's hand wave. Cf. Dace v. Gilbert,
96 Ill. App.3d 199, 201, 51 Ill.Dec. 869, 421 N.E.2d 377, 378
(1981) (finding that signaling driver was not the proximate cause
of accident where waved driver, who did not rely on the signal,
waited one minute before turning left into oncoming traffic).
Indeed, the testimony in this case provides that Grant exited the
gas station within seconds of the postal worker's hand gesture.
See Ex. 8 (Grant Dep.) at 76-77. It would be a dubious
proposition at best to find such a momentary hesitation
sufficient to eradicate the accountability of an otherwise liable
Additionally, I find that, in this case, the fact that Grant
brought his vehicle to a stop and then independently looked for
oncoming traffic material does not preclude a finding that Grant
relied on the hand wave. During his deposition, Grant testified
that as he was waiting to exit the Getty gas station, his left
turn indicator was activated. See Ex. 8 (Grant Dep.) at 96. He
then answered the following questions:
Q(By Grant's attorney Mr. Contarino): So you believe
that the postal worker saw your turn signal that you
wanted to exit the parking lot and you said you had
your left turn signal on as if you wanted to go
westbound on Blackwood-Clementon Road?
A (By Mr. Grant): Yes.
Q: When the postal worker waved you out, did you rely
on that signal?
A: Yeah. Both that and knowing that the light [at the
intersection of Blackwood-Clementon Road and College
Road] was red, yeah.
Id. at 96-97. Grant's deposition testimony that the postal
worker saw his left turn signal coupled with his statement that
the postman "waved him through" could reasonably cause the trier
of fact to conclude that Grant relied on the postal worker's
gesture. See e.g., Barber v. Merchant, 180 A.D.2d 984,
580 N.Y.S.2d 573 (N.Y.App. Div. 1992) (summary judgment for signaling
driver was inappropriate when waved driver relied upon signal and
also checked traffic a second time before collision). Conversely,
the trier of fact might conclude that Grant interpreted the wave
as guaranteeing only the safe passage to the USPS truck's lane
and, coupled with the evidence that Grant stopped in front of the
USPS truck and independently looked for traffic, then decide that
Grant did not rely on the gesture as ensuring the safe passage
across all lanes. See e.g., Shank v. Government Employees Ins.
Co., 390 So.2d 903 (La.Ct.App. 1980) (finding that pedestrian did
not rely on hand gesture where evidence showed that pedestrian
passed safely in front of the defendant's vehicle, paused, and
then attempted, unsuccessfully, to cross the next lane).
In sum, genuine issues of material fact exist as to the proper
interpretation of the hand wave, and whether or not Grant relied
on the postal worker's gesture.
B. Evidence of Breach of Duty
The Government next contends that Boucher failed to introduce
specific evidence of a negligent act by the postal employee. In
support of this allegation, the Government points to the facts
that Boucher never saw the postal employee make the disputed
gesture, "never saw the postal driver do anything other than look
in plaintiff's direction through the left side view mirror of his
van," and only briefly exchanged glances "almost immediately
before plaintiff's car was forcefully impacted by Grant's." Gov't
Brief at 17. Boucher failed to respond to the Government's
allegation in his opposing papers; however, this Court will grant
summary judgment, pursuant to Federal Rule of Civil Procedure
56(e), only if "appropriate." I find that, in this case, it is
During his deposition, Boucher testified that prior to the
accident, he observed the postal employee looking in his
direction, either at Boucher's face or car. The full testimony
included the following:
Q (by Mr. Blaine): Now, you've mentioned several
times that you saw the driver of the vehicle in the
vehicle's side-view mirror?
A (by Mr. Boucher): Right.
Q: Did you actually see the driver seated in the
vehicle without the use of the mirror?
Q: In seeing the driver in the mirror, does that
allow you to say where you think the driver was
Q: Other than —
A: I just didn't give any thought to that. It all
happened so fast. I just remember coming down here
and saying, why the hell did he stop there? Why did
he stop there? It's kind of like he almost looked me
in the eye. I saw him. He saw me. That's the extent
of what I remember. As far as actually if he was
seated or where he was at in the vehicle, I don't
know. I couldn't tell you.
Q: Were those your words, that he almost looked you
in the eye?
A: It appeared as though he was looking — year, we
looked each other in the eye, yes. If he was looking
at my car, I can't really say, he was looking me in
the eye. I feel he saw me and I saw him.
Q: What is it that allows you to say that you feel he
A: Well, because that appeared to be where his eyes
were focusing when he was looking out his mirror. I'm
coming down like this. I look over, and I see him in
the mirror, and I'm pretty sure he sees me in the
Q: But did your eyes meet? Do you have a specific
recollection that your eyes met through the mirror?
A: Yeah, pretty much, pretty much. I saw his face.
I'm pretty sure-he either saw my face or he saw my
car. He was looking at me or my car —
Q: And —
A: at that instance.
Ex. 5 (Boucher Dep.) at 81-85. The Government argues that Boucher
"hedged in his answers to questions about this topic" and, as a
consequence, "hardly [raises] an unqualified assertion of
concrete fact." Gov't Brief at 17 n. 5. I disagree.
The quoted deposition testimony raises the question of whether
the postal employee ignored an approaching danger. See Lennard
v. State Farm Mutual Automobile Ins. Co., 649 So.2d 1114, 1119
(La.Ct.App. 1995) (reversing jury finding against unidentified
signaling driver where there was "no evidence in the record
indicating the phantom had actually checked for traffic or
intended to communicate to [the waved driver] that it was safe to
cross the highway"); Cofield v. Nuckles, 239 Va. 186, 192-93,
387 S.E.2d 493, 496-97 (1990) (finding absence of evidence that
signaling driver negligently ignored an approaching danger where
eyewitnesses testified that signaling driver appeared to look
into side mirror and then waved pedestrian across).
Furthermore, although it has raised the fact that the postal
vehicle was a right-side driven vehicle, there is no evidence to
suggest that the postal employee was not in a position to see the
cars traveling in the left-hand-only lane. See e.g., Kerfoot v.
Waychoff, 501 So.2d 588, 589-90 (Fl. 1987) (signaling driver in
lane full of traffic could not determine the traffic status of
outside lane); Nolde Bros., Inc. v. Wray, 221 Va. 25, 28,
266 S.E.2d 882, 884 (1980) (signaler in driver's seat was not in a
position to see right-lane traffic traveling in the same
direction). To the contrary, Boucher's deposition testimony that
the postal worker either saw him or his car, suggests that the
postal worker was in fact in a position to see the approaching
traffic. In sum, I find that these are questions of material fact
that preclude the finding of summary judgment in this case.
For the reasons set forth above, I shall deny the motion of the
United States of America for summary judgment, pursuant to
Federal Rule of Civil Procedure 56(e), 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 Court shall
enter an appropriate order.
This matter having come before the Court on the motion of
United States of America, for summary judgment, pursuant to Rule
56(e) of the Federal Rules of Civil Procedure, Robert Cleary,
Esq., Acting United States Attorney, Paul A. Blaine, Esq.,
Assistant United States Attorney, appearing on behalf of
Defendant, the United States of America, and Jeffrey A. Libert,
Esq., appearing on behalf of Plaintiff, Walter C. Boucher; and,
The Court having considered the submissions of the parties, for
the reasons set forth in the OPINION filed concurrently with this
IT IS, on this 22nd day of November, 1999, hereby ORDERED that
the motion of the United States of America, for summary judgment,
pursuant to Federal Rule of Civil Procedure 56(e), is DENIED.