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Miller v. Hackert

Superior Court of New Jersey, Appellate Division

December 9, 2013

CARRIE K. MILLER, Plaintiff-Appellant,
v.
BRIAN HACKERT and JACKIE HACKERT, Defendants, and JOSH WIDERMAN, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2013

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-22-10.

Thomas J. Manzo argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Manzo, on the brief).

Peter K. Barber argued the cause for respondent (Daly, Lamastra & Cunningham, attorneys; Mr. Barber, on the brief).

Before Judges Alvarez and Ostrer.

PER CURIAM

Plaintiff Carrie K. Miller appeals from the trial court's grant of summary judgment to defendant, Josh Widerman, dismissing with prejudice her complaint seeking damages arising out of injuries she suffered while she piloted a personal watercraft (PWC). Widerman was her passenger. We affirm.

I.

We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Miller and Widerman, who were then girlfriend and boyfriend, visited co-defendants Brian and Jackie Hackert at their New Jersey shore house in Cape May County for a weekend in September 2007. The hosts owned two PWCs. Miller and Widerman anticipated riding a PWC with the owners' permission.

Widerman testified that he had operated a PWC several times before, but Miller had never done so. Miller understood that neither she nor Widerman possessed a license or boat safety certificate (BSC), required to operate the PWC.[1] Miller and Widerman both testified that the Hackerts were aware of that, but allowed Miller and Widerman to operate a PWC nonetheless. The Hackerts advised the couple to present the BSCs of other persons, which were stored in the PWCs, if they were stopped by authorities.

Miller testified that Brian Hackert and Widerman piloted the PWCs from a dock to the beach, and then separately rode the small vessels into the ocean waters while Miller waited on shore. After a while, the men returned and Widerman took on Miller as a passenger. Brian Hackert continued to operate the second PWC. Around ten minutes later, Widerman and Miller caught up with Brian Hackert in the open water.

Miller asserted that she then accepted Brian Hackert's invitation to pilot the PWC. "[H]e said to me . . . paraphrasing, you know — [y]ou ready to take a stab at it? I was like, [y]eah, I think so." Miller testified that Brian Hackert briefly instructed her how to operate the PWC. "And then he's like, All right? And I'm like, Yep. And he's ...


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