If I Have the Right of Way, Can I Be Sued for Waving Another Car to Go?

Yes, you can. Drivers who have the right of way will often wave to other cars, indicating that they may proceed before them. There are circumstances in which a wave of this manner can subject a driver to tort liability – when a person unfairly causes someone else to suffer loss or harm.

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The Virginia Supreme Court has adopted a principle from the Nolde Brothers v. Wray trial in 1980. In Nolde Brothers v. Wray, the Court stated: If a driver’s waving signal was or could be interpreted to another driver as a signal to proceed across lanes of incoming traffic then the driver who waves has to be certain the other driver can cross safely. The Court’s reasoning was that the driver who received the wave was able to see that the other driver was not in a position to see whether there were any vehicles in the other lanes of traffic.

Ten years after Nolde Brothers v. Wray, the Virginia Supreme Court confronted the waving issue again.  In Ring v. Poelman[1], a driver in the left lane of traffic struck a car that pulled out in front of it. The car came from behind a line of traffic stopped in the right lane.  The driver of the car pulling out testified that the stopped driver in the right lane waved him out.  In contrast to Nolde Brothers v. Wray, the Court found that in this case, the driver giving the signal “was so positioned that the jury reasonably could find that he could have and should have seen the danger of traffic approaching from the rear in the left turn lane.”[2] If that was the case, and if the jury found that the driver being waved out reasonably believed that the wave was a signal to proceed into the left turn lane, the waving driver would have been found liable.

Drivers who wave another car in front of them could be found liable if an accident or injury occurs. Although waving another driver in front of you can be a nice thing to do, you do not want your well-intentioned actions to lead to an accident. Recommendation: don’t wave them in. You can leave a gap and let them in, but don’t make eye contact or wave people in because you may be taking on a duty. Waving or gesturing can indicate that it’s safe, which then means you’re taking on a duty or responsibility.

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[1] Ring v. Poelman, 240 Va. 323 (1990).

[2] Ring at 326.