Boucher v. Grant

United States District Court for the District of New Jersey · 1999 · Evidence

Evidencesummary judgmentFederal Tort Claims Actexcited utteranceRule 803(2)waving driversignaling driverproximate cause

Facts

Boucher was driving eastbound on Blackwood-Clementon Road in the left-turn-only lane while Grant was attempting to leave a Getty gas station and cross the eastbound lanes to head west. A USPS truck in the middle eastbound lane and another car in the right lane stopped near the station exit, and the unidentified postal employee gestured for Grant to come out. Grant moved forward, stopped in front of the USPS truck, and then entered the left-turn-only lane, where he collided with Boucher. Boucher testified that immediately after the crash Grant said he thought the road was clear because the man in the truck waved him on, and Boucher also testified that just before impact he saw the postal worker looking toward him or his car through the truck's mirror.

Issue

Whether the United States was entitled to summary judgment on Boucher's negligence claim because the USPS employee's wave was not, as a matter of law, a proximate cause of the accident and because the record contained no evidence of breach. Also, whether Grant's immediate post-accident statement could be considered at summary judgment as an excited utterance.

Rule

Under New Jersey law, a driver who gratuitously waves another driver on assumes a duty of care and must act reasonably under the circumstances. In a waved-driver case, proximate cause depends on whether the signal could reasonably be interpreted as indicating safe passage beyond the signaler's own lane and whether the waved driver actually relied on that signal; where reasonable minds can differ on interpretation, reliance, or breach, summary judgment is inappropriate. At summary judgment, hearsay may be considered if it would be admissible at trial, and a statement made under the stress of a startling event may qualify as an excited utterance under Federal Rule of Evidence 803(2).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, Dana Cole sued Harbor Route Delivery after a crash, alleging its van driver waved another motorist into traffic. On summary judgment, Dana offers deposition testimony that, less than a minute after the collision, the other motorist ran over, visibly trembling, and said, "I went because the van driver signaled that the road was clear." The motorist later testified in deposition that the signal only meant the van would stay stopped.

How should the court treat the immediate post-collision statement for purposes of summary judgment?

Explanation. At summary judgment, a court may consider evidence that would be admissible at trial. A statement made under the stress of a startling event may qualify as an excited utterance if it relates to the event, the declarant personally observed it, and it was made before time to reflect and fabricate. A car crash is a startling event, and a statement made within about a minute by a shaken participant can qualify. If admitted, the conflict with later deposition testimony creates a genuine issue of material fact. (Derived from Boucher v. Grant (n.d.).)