Gilmer v. Ellington
Filed January 23, 2008, Second District, Division Eight
Cite as 2008 SOS 537

Legal Duty of Yielding Driver Cleared In Collision Tort Case

The case stemmed from a traffic accident between Kyseme Ellington, a car driver, and Daniel Gilmer, a motorcycle rider. Unfortunately, the accident also involved another motorist, Rebecca Cherry.

According to accounts, Cherry was waiting for a chance to make a left turn in an intersection as Ellington came from the opposite direction. Ellington signaled Cherry that he was yielding his right of way to her so that she could turn. Cherry saw Ellington’s gesture and drove forward. As Cherry made the move, she collided with Daniel Gilmer, who was riding through the intersection on a motorcycle.

Gilmer sued both Cherry and Ellington for his injuries, alleging that Ellington has no duty to gesture Cherry that it was safe for her to proceed into the intersection unless the intersection was actually clear of traffic.

The trial court granted Ellington’s motion for judgment on the pleadings and concluded that Ellington owed no duty to Gilmer.

The Second District court of appeals affirmed the ruling, holding that Ellington had no legal duty to assure all oncoming traffic was clear before signaling to Cherry that he was yielding his right of way to her.

The court set forth the following rules concerning a left-hand turn in an intersection:

• Motorists proceeding through the intersection without turning have the right-of-way as to a driver attempting a left turn and


• Any driver turning left must yield to oncoming traffic.

Moreover, according to the appeals court, even when the driver of an approaching vehicle yields its right-of-way, the left-turning driver has a ‘continuing’ duty to anticipate that other drivers will not yield their right-of-way.

Further, the court found no law stating that an oncoming driver who yields or gives up right-of-way to a left-turning driver is thereafter liable for any injury from an accident that might occur as the result. The obligation to determine whether it is safe to turn belongs to the driver executing the turn, and cannot be blamed on the driver who decides to yield.

Thus, the court held that a yielding driver bears no moral blame for a collision between a left-turning driver and a driver that does not yield his right-of-way.

The appeals court also rejected Gilmer’s petition to amend his complaint to state a cause of action for negligence per se, for lack of merit. In rejecting the petition, the appeals court reasoned that Vehicle Code §22526, otherwise known as the "Anti-Gridlock Act," which Ellington was alleged to have violated, is not a law pertaining to the safe operation of vehicles. Its purported violation therefore could not give rise to a cause of action for negligence per se.

The Second Appellate District affirmed the judgment. The court held that a driver choosing to yield his right-of-way to a driver making a left turn owed no duty to passing traffic to ensure the turn could be safely executed before yielding.