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  • Writer's pictureMike Macht

Be a little courteous... or don't be....

Here's our factual scenario: I used to regularly commute to work on my motorcycle, a fun little Triumph. Let's say that during one of those trips coming from downtown where my office is heading towards the mall, I begin to pull up to the light near Olive Garden. It's 5 lanes at that location, two lanes traveling towards downtown, two lanes traveling away from downtown, and a turn lane. I'm in the lane next to the turn lane and there's a row of cars in the lane to my right. The cars to my right are stopped waiting on the light near Zips Car Wash to turn green and while I pull up, that light does turn green. Anyone that has ever been on a motorcycle will tell you this is the most terrifying and vulnerable position to be in while riding. While I'm approaching the intersection at a cautious pace, one of the people in the vehicles to my right (let's call him Bill) waives a car sitting in the driveway of Olive Garden (Let's call him Dave) through so they don't have to wait on the line of traffic behind them. Dave begins to make a left past Bill and in front of me. I end up striking the front driver's side fender of Dave's vehicle and sustain serious injuries. Who's at fault?

When law enforcement comes to the scene they're going to write Dave a ticket for failure to yield the right of way and potentially for careless and reckless driving. However, the officer's citation is only half the story. When I'm done going through my medical treatment and physical therapy I'm going to sue two people. I'll sue Dave and Bill. My negligence suit against Dave will be a slam dunk since the officer properly cited that person for failing to yield the right of way. My suit against Bill for waiving the other car through the intersection will allege negligence and due to their complete and utterly reckless action, I'll also demand punitive damages. Will I succeed against that person? Probably. In terms of the negligence claim, I have an obligation to establish that Bill owed me a duty of reasonable care, that he failed to exercise that duty, that the breach of that duty caused injury to me, and that the injury was the proximate cause of the Bill's failure to act. The first element, the duty that the person owes me, is a commonly accepted one in our society. Each and every driver of a vehicle owes everyone else on the road a duty to abide by the traffic rules and regulations. In terms of violating that duty, Bill failed to abide by that duty when instead of proceeding through the intersection when proper to do so, he decided to play traffic cop and waived Dave through the intersection. Where I'll have a fight with Bill in civil court is whether the injury I sustained was the proximate cause of my injuries. The insurance company and the team of lawyers that come in to defend Bill against my claim will say that the proximate cause of my injury was when Dave turned in front of me. The test that is applied, however, is what we call a "but-for" test. In arguing proximate cause to the jury, the question is "but-for the actions of this defendant (Bill) would the plaintiff (me) have suffered the injuries he sustained?" My argument in this case is "but-for" the actions of Bill, Dave not only wouldn't have turned in front of my motorcycle but he couldn't have turned in front of my motorcycle. Will I win? That'll be an issue for a jury to decide, however, I can guarantee you that a judge will not dismiss my matter as being frivolous.

So what do you do in these situations? Well, if you're in my position, proper motorcycle riding technique will tell you to slow way down and expect the worst case scenario. Also, NC law could says I have an obligation to proceed in a safe manner so as to be able to avoid an accident. I simply can't turn a blind eye to the possibility that someone could turn out in front of me and argue that the speed limit is 35 mph so I'll go 35 mph. If I'm Dave I should simply sit and wait in my spot until Bill moves and I can see clearly enough to proceed safely. I should do this despite the fact that the row of cars behind me and the car trying to waive me on are all honking their horns and giving me various discourteous hand gestures telling me to move. What if I'm Bill though? The person directing traffic? Well, obviously, I shouldn't be directing traffic and despite the dis-courteousness of the situation, I shouldn't waive Dave through. Bill has an obligation to not block a driveway under the laws of North Carolina, but he should not actively involve himself in allowing any other vehicle to break the law. That active participation (the waiving someone through) is what is going to get Bill moved from the position of being a witness to being a defendant.

Do you have a scenario in North Carolina that you're curious about? Send me your question and we can discuss it through a blog. As always, I can't give you specific legal advice without being retained.

If you need a personal injury attorney in Western North Carolina, contact my office to discuss your situation. Consultations are free and we don't get paid unless we win. Vanessa and I can be reached at 828-252-0002 or by email at

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