The aggressive behavior of an auto salesman who flipped off a driver while accompanying another motorist on a test drive did not foreseeably invite a “road rage” response of deadly force, a California appeals court has ruled.

The test driver, Adam Vue, sued the salesman and East Bay Mitsubishi of El Cerrito, Calif., for negligence after being shot in the head on Interstate 80 by an unknown assailant in a vehicle with which he had just avoided a collision. The shooting, he argued, was a foreseeable result of the salesman's hostile hand gesture toward the driver of the vehicle.

According to a 1995 Automobile Association survey cited by Vue, almost 90 percent of motorists experienced road rage incidents during the prior 12 months and "unverified figures of up to 1,200 road rage-related deaths a year have been reported."

“[T]he criminal act of road rage is a foreseeable probability every time a person gets behind the wheel,” Vue said.

In a July 9 opinion, the California 1st District Court of Appeal sympathized with Vue, calling what happened to him “a terrible tragedy perpetrated by antisocial cowards.” But it affirmed a trial judge who summarily dismissed the case.

“[O]ur society is not as Vue portrays -- that is, a society in which one runs a risk of death by  gunshot every time one gets in a car and drives down the road,” Justice James A. Richman wrote for the appeals court. “Yes, there are acts of aggression that result from disagreements between drivers. Yet, that does not make it foreseeable that shrugging one’s hands at, or even 'flipping off,' the occupants of a car that just made a dangerous move would prompt the occupants to respond with a deadly weapon.”

Americans drive over two trillion miles a year, Richman noted, but “the likelihood of encountering a driver who responds to a disagreement with deadly force is so infinitely small that it cannot be said to be reasonably foreseeable.”

Vue took his test drive with Gabriel Lobos on Jan. 11, 2007. While he alleged in his lawsuit that Lobos “threw his hands in the air as a sign to the unknown driver indicating 'What are you doing?'” he testified in his deposition that the salesman also “flipped off” the occupants of the other vehicle.

The theory of liability was that Lobos and the dealership owed Vue a duty to act with due care which Lobos breached with the affirmative act of his hostile gesture, which in turn caused the assailant to shoot Vue.

The burden of such a duty on the community “might seem slight,” Richman said, requiring motorists to do no more than refrain from

gesticulating in response to a traffic-related conflict. On further reflection, however, the issue is more complicated. How is a driver to know what reaction is acceptable and what is not? Is it acceptable to shake one’s head when someone cuts off one’s car? To honk one’s horn? Where is the line to be drawn? And how is a driver to know where that line is?

“If we were to impose a duty under the circumstances of this case, it could conceivably lead to endless and unwarranted extensions of liability to situations where defendants simply failed to stifle reasonable reactions,” Richman concluded. “This we cannot abide.”

By Matthew Heller
7/21/09