Help settle a theoretical traffic debate
August 14, 2012 8:11 AM   Subscribe

Sometimes a driver of one car will "wave on" a driver of another car. Could the waving driver be held liable for a resulting accident?

Help settle a traffic debate. In some situations a driver might yield the right of way to another driver, and they might wave to indicate that it is OK to proceed. For example, a lane of cars is stopped or slowed by a red light. Another car is on a side street or parking lot exit and needs to pass through this line of cars and into the other lane to make a left.

Suppose a driver in the first lane leaves space for the other car to pass through, and waves at the other car to go. The other car goes, and immediately gets hit by a car going the other direction (away from the light). Could the driver who performed the wave be liable? I think no, since it is the other drivers responsibilty to make sure it is safe to proceed, despite any other cars yielding to them. A friend disagrees. Does anyone have any input, since this seems difficult to search for in the traffic code?

If it matters, we're discussing New York state, but info on any other state law would be interesting to hear.
posted by azathoth to Law & Government (23 answers total) 5 users marked this as a favorite
Only a police officer (who is considered a traffic control device) can overrule other traffic control devices.
posted by Doohickie at 8:30 AM on August 14, 2012 [1 favorite]

This is a common scam:

2. "Drive Down" – The unsuspecting driver is usually attempting to turn left onto a multi-lane road from a parking lot or side street in heavy traffic. As he waits for a break in traffic, another vehicle stops to allow him in the flow. However, when the victim pulls in, the other driver crashes into the car –– claiming to never have stopped to let the innocent driver in. Police often charge the victim with failing to yield to oncoming traffic.

3. "Wave Down" – Similar to the "Drive Down," this scheme involves two vehicles. The first stops to wave the victim driver out of a parking lot or side street, indicating it is clear and safe to enter the far lanes. Meanwhile, the second scam vehicle is in the far lane and hidden by the traffic in the near lane. As the victim pulls forward, the second vehicle collides with them. Even if it is determined that the first driver waved the victim out, the victim is still at fault, since they must "see their way clear," regardless of whether anyone else indicates it is safe to proceed.
posted by Comrade_robot at 8:30 AM on August 14, 2012 [7 favorites]

Waving could mean a lot of things but yes, the waver could be held liable. It is bad practice even though the intention is helpful.
posted by JJ86 at 8:31 AM on August 14, 2012 [1 favorite]

Yes (in Indiana, at least).

In Scotland, I was taught that it created a liability, so not to do it.
posted by scruss at 8:32 AM on August 14, 2012

scuss; your linked post seems to indicate the opposite: that a courtesy wave is insufficient to create liability, and that a thorough examination of traffic followed by a wave is necessary for liability.
posted by bfranklin at 8:39 AM on August 14, 2012

Could =/= Will be
posted by JJ86 at 8:48 AM on August 14, 2012

The situation in Comrade_robot's Scam #3 happened to me - only it wasn't a scam situation (just a silly accident), and I was the second vehicle hidden in the far lane. The girl who hit me was charged. The driver who waved her through was not. This was in Illinois.
posted by SuperSquirrel at 8:50 AM on August 14, 2012

Could the drive who performed the wave be liable? Sure. Why not? To find otherwise would mean that, as a matter of law, the passing driver had accepted any and all responsibility for passing. But if nothing else, the presence of the waiving driver modifies the traffic flow in the intersection.

I think what you're missing here is that almost all states have adopted some version of comparative fault, wherein the finder of fact can attribute negligence to any and all persons to whom fault might be said to lie. So in this case, the jury would probably be asked to apportion fault between the plaintiff, the waiving driver, and the passing driver. I think your instinct that it's ultimately the passing driver's responsibility to make sure that it's safe to enter the intersection is the way a jury would probably see it, but I think it's also going to be a really hard sell to say that the waiving driver doesn't have any responsibility. I think the way that would play itself out is that most of the fault would be apportioned between the plaintiff and passing driver* with some small percentage of fault likely being apportioned to the waiving driver.

Of course, the facts of the specific circumstance could change that outcome. But I know of no strictly legal reason why fault could not be apportioned to the waiving driver.

The real problem here is that a lot of the time, the waiving driver takes off before anyone can get his information. That only leaves the vehicles involved in the collision.

*Did the plaintiff run a red light or stop sign? Did the passing driver? Was anybody drunk or speeding? These are the questions that get asked.
posted by valkyryn at 8:53 AM on August 14, 2012 [2 favorites]

This is a common scam:

While there may be numerous cases of insurance fraud carried out this way, I think the vast majority of instances are just foolish attempts to be nice.

The waver is an idiot for thinking their good intentions and their right foot on the brake can stop two lanes of traffic. But the puller-outer is the bigger idiot for apparently agreeing. Each driver is responsible for obeying traffic laws and markers. Making it up as we go along gets people killed.
posted by General Tonic at 9:34 AM on August 14, 2012 [3 favorites]

FWIW, I was told in both in the UK and in California not to wave people on. Frankly, even if you can't be held liable for an accident caused as a result, do you really want to chance it or end up getting caught up in it?
posted by MrBear at 9:35 AM on August 14, 2012

No clue on NY legalities, but would think it remains the (common sense) responsibility of the driver to check that it's safe to proceed.

We were on a dual lane road at a non-traffic-lighted intersection when we were knocked into by a right-turning (US left-turning) car who'd been motioned to cross over in front of an oncoming vehicle while we sat slightly behind in both cars' blind spots. In this instance, the motioning driver continued on his way and neither insurance nor metro cops cared that there was a third party giving really shit driving advice.

Also, slightly related, over here big trucks often pull over to drive in the yellow lane so that vehicles can pass safely. The accepted signal that it's safe for vehicles to pass is the trucker will flick his indicator lights once or twice. The problem comes that this signalling isn't universal and there've been a couple of drivers who've come up short because the trucker's "Waaatch Ooout, I'm leaving the yellow lane" is another man's "All clear".
posted by kreestar at 9:43 AM on August 14, 2012

Just to be clear, the court decision in scruss' Indiana article includes:
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.
posted by nobody at 9:48 AM on August 14, 2012 [1 favorite]

Best answer: As the driver, only trust YOUR judgement in these things. There are idiots all over the place who want to waive me into on-coming traffic when I'm trying to make a left turn. Not to worry hot-shot, I'll turn when I'm good and ready.

Legally, the guy waiving you, unless he/she is a police officer and in uniform, is just a schmoe, schmoes don't know anything more than we know.

I've seen accidents caused by this, and I've given my witness report to police. I just shake my head along with them. I've never seen the waiver implicated, it's the driver who is responsible.

Besides, good luck getting the waiver to slow down and stay after causing an accident.
posted by Ruthless Bunny at 9:58 AM on August 14, 2012 [2 favorites]

^waive/waiver <> wave/waver

Waving doesn't alter the law like most others said. The only type of scenario I can think of the waver getting in trouble for is if they waved a car on and then proceeded to run into the car they waved. I think in court you might be able to argue they gave up their right of way and didn't look like they were going to move until you went.
posted by zephyr_words at 10:31 AM on August 14, 2012

I've always considered that waving another driver meant "I am allowing you access into my lane of traffic." Beyond that lane isn't the waver's responsibility, rather the waved driver has to ascertain that the next lane is safe to proceed (and perhaps obtain another driver's permissive wave).

If I am the driver who is waiting to turn, and someone waves me in, it is up to me to determine whether it is safe. Are there more cars coming along? Will they stop? What about contra-flow traffic? Will they stop? If I cannot determine this right away, I will actually "wave off" the wave with a kind gesture, and allow the other driver to continue on while I wait for a better opportunity.

I don't think the yielding driver would be held liable for an accident resulting from the other driver's negligence, but I'm not a lawyer.
posted by CancerMan at 10:34 AM on August 14, 2012

Here in GA a driver once waved me through and I made a left turn right into the path of another car passing him on the left. The offending driver left, but the police said that if had stuck around he would have been charged in the accident
posted by TedW at 10:36 AM on August 14, 2012

Best answer: I have actually been in this accident before and the cops, very specifically, told the lady that it was her responsibility to check all lanes of traffic before pulling out when she tried to blame it on the guy who waved her on.

The insurance company agreed with the cop when she tried to blame the whole accident on the waving guy. She/her insurance company paid for our damage, I don't know if they even tried to recover anything from waving guy.

She was trying to turn left out of a drive way onto a four lane road, the guy in the lane closest to her stopped and waved her on, we were in the left lane and she did not pause before entering our lane and we ran into her. No one was hurt and all cars could drive away so we were lucky in our situation.
posted by magnetsphere at 12:11 PM on August 14, 2012

We were in California for our incident.
posted by magnetsphere at 12:13 PM on August 14, 2012

Best answer: This happened to my wife when she was turning into a driveway across multiple lanes of stopped traffic. A driver in the leftmost lane waved her through but a car in the right lane, which she couldn't see or see her, continued on and t-boned her car. The cop explained that no matter who waves you on, you are still responsible for making sure the way is clear before you turn. This was in NY state.
posted by tommasz at 12:54 PM on August 14, 2012

Here in GA a driver once waved me through and I made a left turn right into the path of another car passing him on the left. The offending driver left, but the police said that if had stuck around he would have been charged in the accident

I'm pretty sure the police here in GA will charge as many people as they think they can get away with in hopes that they won't show up to court to fight it. I was charged when I was rear-ended while stopped.

So, getting charged and actually being at fault are not necessarily the same thing.
posted by duien at 1:39 PM on August 14, 2012

Best answer: This happened to me too. Turning left out of a convenience store on a corner. The car in front of me stopped and waved me through, but as I turned, a different car (from behind the waving person) changed lanes into the turn lane and smashed into me.

I was completely at fault. Even though someone waved me through, it was still my responsibility to make sure no cars were coming.
posted by tacodave at 2:43 PM on August 14, 2012

In the UK I quite often see people flashing headlights as an invitation to pull out: but it's explicitly mentioned in the Highway Code, see points 110 and 111.
posted by SuckPoppet at 2:53 AM on August 15, 2012

As New York Resident you should NEVER listen to somebody waiving you on because if it goes against who has the right of way and you hit somebody you will be at fault. I never listen to somebody who waives me on unless I have the right of way to begin with.
posted by majortom1981 at 6:21 AM on August 15, 2012

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