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Steven Dinenno, Sr., On Behalf of Anthony Dinenno, A Minor v. Lucky Fin Water Sports

February 17, 2011

STEVEN DINENNO, SR., ON BEHALF OF ANTHONY DINENNO, A MINOR, PLAINTIFF,
v.
LUCKY FIN WATER SPORTS, LLC; MARC M. ROY, JR.; AND GEORGE DJUKANOVIC, JR., DEFENDANTS, LUCKY FIN WATER SPORTS, LLC, THIRD-PARTY PLAINTIFF,
v.
ROBERT HUGHES, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

This is a personal injury suit within this Court's admiralty jurisdiction*fn1 arising out of a collision between two jet skis in navigable waters of the coast of Wildwood, New Jersey. Defendant Lucky Fin Water Sports, LLC ("Lucky Fin") moves to strike Plaintiff's expert's report and also moves for summary judgment on the sole claim against it: negligent entrustment of the jet skis. For the reasons stated herein, the Motion to Strike / Motion for Summary Judgment will be denied.*fn2

I.

On August 30, 2007, Lucky Fin rented jet skis to Defendant George Djukanovic, Jr., and Defendant Marc Roy, Jr. Anthony Dinenno, who was 13 years old at the time, was a passenger on Djukanovic's jet ski. Djukanovic and Roy were both operating their jet skis within the designated rental area when their jet skis collided, causing Dinenno to severely break his leg.

While it is undisputed that Roy's jet ski collided into the jet ski carrying Djukanovic and Dinenno, the record contains conflicting evidence as to how the accident happened. David Reynolds, a Lucky Fin employee who witnessed the collision, testified that he observed Roy's jet ski following directly behind Djukanovic's while both jet skis were going straight ahead. (Reynolds Dep. p. 55, 61, 64) He testified that he saw Roy hit Djukanovic from behind. (Id. at p. 64)

On the other hand, the police report of the incident contains witness statements and a diagram demonstrating that Roy and Djukanovic were riding parallel to each other at high speed-- Roy on the left and Djukanovic slightly ahead on the right-- when Djukanovic turned left into Roy's path. (Intoccia Ex. D) Roy was unable to stop before striking Djukanovic and Dinneno. (Id.)

The record also contains conflicting evidence as to the nature and extent of Lucky Fin's safety instructions to Roy and Djukanovic. Reynolds, who gave the instructions and supervised the renters during their rides, testified that his verbal instructions to Roy and Djukanovic lasted about seven minutes. (Reynolds Dep. p. 8, 21) He testified that he told both operators that they should keep their skis 200 to 300 feet away from each other while moving; "[i]n a crossing situation, the ski on the right would have the right of way"; "if another ski or boat would happen to be coming up beside you, you maintain the speed that you are at and let that skier or boat pass you"; and "[a]lways scan the water left and right at all times. Just don't get [the ski] going up to . . . 35 miles an hour and decide you're going to turn real fast without seeing-- knowing if anything is coming up on either side of you." (Id. at p. 32, 90)

However, the two other jet ski renters who received the safety instructions along with Roy and Djukanovic testified differently. Anthony Nicoletti testified that Reynolds did not cover who had the right of way and that "speed was not mentioned." (Nicoletti Dep. p. 37, 60, 73) Brian Von Deck testified that the safety instructions lasted "30 seconds or so" and that he recalled being instructed to stay five feet away from other jet skis. (Von Deck Dep. p. 30, 32-33)*fn3

The jet ski rental agreements signed by Roy, Djukanovic and Third Party Defendant Hughes*fn4 contain the following "riding rules":

(1) Reduce Speed; No Wake; 5 MPH Speed Limit.

(a) When following supervisors to and from designated rising area.

(b) When passing other jet skis, waverunners or boats ...


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