CARRIE MILLER v. BRIAN HACKERT JACKIE HACKERT JOSH WIDERMAN

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Superior Court of New Jersey, Appellate Division.

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

DOCKET NO. A–5591–11T3

-- December 09, 2013

Before Judges Alvarez and Ostrer. 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).

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 like, All right, see you later.   And he took off and then we went our way.”

Brian Hackert later claimed not to recall inviting Miller to operate the PWC. He asserted that Miller was his passenger while Widerman was permitted to ride solo, and then Miller rejoined Widerman as a passenger.   He claimed it shocked him to see her operating the PWC.

Widerman testified that Miller had been a passenger on Brian Hackert's PWC, rejoined Widerman, and then, after more riding, she said she wanted to try piloting the PWC. The three met a second time on the water, so Miller could give Brian Hackert her earrings for safe keeping in a compartment on his PWC. Widerman testified that Brian Hackert helped Miller into the driver's seat, while Widerman sat behind her.

Miller testified that she recalled feeling, after operating the PWC for several minutes, that she had gotten “the hang of it.”   The last thing she remembered before the accident was hitting very choppy waters for three or four seconds.

Widerman testified that Miller had tensed up while navigating the rough waters, and, apparently unintentionally, pressed down on the control that increased the PWCs speed.   He claimed he shouted to her to slow down.   She was ejected from her seat, her head struck the handlebar, and then she landed unconscious, into the water.   She suffered serious head injuries and fractured her knee.   When asked at her deposition, “What is your understanding of what [Widerman] did wrong that has anything to do with this accident?”   Miller replied, “Nothing.”

Miller filed suit and claimed that Widerman's and the Hackerts' negligence caused her personal injuries and the resulting damages.   After a period of discovery, Widerman moved for summary judgment.   Judge Daryl F. Todd, Sr. granted the motion by order on August 5, 2011, and denied the Hackerts' motion for reconsideration as it pertained to the dismissal of the action against Widerman by order on March 23, 2012.2  Judge Todd found that Widerman did not owe a duty to Miller.   He rejected Miller's argument that (1) Widerman was liable for negligently entrusting the PWC to Miller;  and (2) Widerman owed a duty of care implied by a licensing statute, N.J.S.A. 12:7–74(b), which prohibits someone with custody or control of a power vessel to allow an unlicensed person to operate it.

Miller appeals and renews the argument that Widerman negligently entrusted the PWC to her, and also owed a duty of care to her, grounded in the licensing statutes.   Miller also urges us to recognize that Widerman owed her a common law duty of care under the circumstances.

II.

We review the trial court's grant of summary judgment de novo, Lapidoth v. Telcordia Tech., Inc., 420 N.J.Super. 411, 417 (App.Div.), certif. denied, 208 N.J. 600 (2011), and apply the same standard as the trial court.   Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998).   Pursuant to Rule 4:46, we “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Brill, supra, 142 N.J. at 540.   Applying these standards, we affirm, because under the facts presented, Widerman did not breach a recognized duty of care owed to Miller.

“Clearly, ‘[t]here can be no actionable negligence if defendant’ did not violate any ‘duty to the injured plaintiff.’ ”  Lombardo v. Hoag, 269 N.J.Super. 36, 48 (App.Div.) (quoting Ryans v. Lowell, 197 N.J.Super. 266, 275 (App.Div.), certif. denied, 101 N.J. 211 (1985)), certif. denied, 135 N.J. 469 (1994).   Whether Widerman owed a duty of care, and the scope of that duty, is a legal issue for the court.  Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502 (1997);  Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996).

We first address Miller's argument that Widerman owed a duty of care arising out of N.J.S.A. 12:7–74(b).  “[T]he violation of a legislated standard of conduct may be regarded as evidence of negligence if the plaintiff was a member of the class for whose benefit the standard was established.”  Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999).   A statute establishes a standard of care if its purpose is

“(a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.”

[Piscitelli v. Classic Residence by Hyatt, 408 N.J.Super. 83, 105 (App.Div.2009) (quoting Restatement (Second) of Torts § 286 (1965)).]

On the other hand, if a statute does not establish a standard of care, then “ ‘the violation is ordinarily not even considered to be relevant evidence bearing on the question whether the actor has complied with the standard of conduct of a reasonable man.’ ”  Piscitelli, supra, 408 N.J.Super. at 106 (App. Div. (quoting Restatement (Second) of Torts § 288B(2) comment d (1965).

However, we need not resolve these questions because the statute simply did not apply to Widerman.   We note at the outset that N.J.S.A. 12:7–74, cited by Miller, does not pertain to boating in tidal waters, where Widerman and Miller operated the PWC, in the ocean off Upper Township.   The statute provides in relevant part:

a.  A person who lends any operator's license required pursuant to section 3 of P.L. 1995, c. 401 (C. 12:7–72) to another person shall be subject to a fine of not less than $ 25 nor more than $ 100.

b. A person owning or having control or custody of a power vessel who allows the power vessel to be operated by a non-licensed operator shall be subject to a fine of not more than $ 100.

[N.J.S.A. 12:7–74.]

The provision enforces the obligation to obtain a license to operate power vessels in non-tidal waters of New Jersey.   See N.J.S.A. 12:7–72 (authorizing the Motor Vehicle Commission to issue licenses for operators of power vessels in the non-tidal waters of New Jersey);  N.J. State Police Boating Safety Manual at 2–3 (2013) (stating license is needed for non-tidal waters, and BSC is needed for tidal waters).

To operate a PWC in tidal waters, Widerman and Miller needed BSCs. See N.J.S.A. 12:7–61(c) (stating that, except as provided by N.J.S.A. 12:7–86, a person operating a PWC “on the waters of this State” shall have “successfully completed a boat safety course” approved by the State Police, or a written test).3  We recognize the statute enforcing the boat safety certificate requirement contains a provision comparable to N.J.S.A. 12:7–74(b).  It states:

A person who owns or has control or custody of a power vessel and allows the power vessel to be operated on the waters of this State by a person who is required pursuant to the provisions of this section to possess a certificate certifying successful completion of a boat safety course but who does not possess such certificate is subject to a fine of not more than $ 100.

[N.J.S.A. 12:7–61(f).]

“Power vessel” is defined to include a PWC. N.J.S.A. 12:7–62.

Nevertheless, N.J.S.A. 17:7–61(f) did not apply to Widerman because he did not own the PWC, nor did he have “control or custody” of it.   We have interpreted the meaning of custody and control in an analogous statute pertaining to the “custody or control” of motor vehicles.   In Champion ex rel. Ezzo v. Dunfee, 398 N.J.Super. 112, 126–27 (App.Div.), certif. denied, 195 N.J. 420 (2008), we construed N.J.S.A. 39:4–50(a), which penalizes a person who allows a person under the influence “to operate a motor vehicle owned by him or in his custody or control.”   The plaintiff sued a fellow passenger for injuries suffered when the passenger, who allegedly had custody or control of the vehicle, allowed an intoxicated driver to operate it, causing an accident.   We held that “custody or control” involved a level of custodianship “necessary to withhold permission to operate the vehicle [.]”  Id. at 127.

Widerman did not have authority to withhold permission from Miller to operate the PWC because Brian Hackert granted it.   According to Miller's own testimony, Brian Hackert, the owner, consented to her operation.   He invited her to try piloting the vessel;  instructed her;  and then sent her on her way.   Even before the three set off, the Hackerts approved Miller's and Widerman's operation, by telling both to present the BSCs of others if they were stopped.   Also, under Widerman's version of events, Miller did not take the controls until she and Widerman met again with Brian Hackert.   Miller gave him her jewelry for safekeeping, and he implicitly consented to her operation, as Widerman and Miller changed places in his presence.   Brian Hackert's failure to recall these events is insufficient to create a genuine factual issue regarding whether Miller operated the PWC with Brian Hackert's consent.   See Brill, supra, 142 N.J. at 540 (“When the evidence is so one-sided that one party must prevail as a matter of law, ․ the trial court should not hesitate to grant summary judgment.” (internal quotation marks and citation omitted)).4

Miller's negligent entrustment theory also fails for the same reason.   Entrustment of a vehicle to an operator who lacks legal authority or competence to operate it may be considered negligence.  Mead v. Wiley Methodist Episcopal Church, 4 N.J. 200, 206 (1950);  Kauffman v. Gullace, 252 N.J.Super. 467, 475 (App.Div.1991).   However, Widerman did not entrust the PWC to Miller.   Brian Hackert did.

Finally, Widerman, as Miller's passenger, breached no other duty to Miller, under the facts presented.  “[A] passenger in a motor vehicle generally has only two duties:  not to interfere with the driver's operations, and to protect himself or herself.”  Champion, supra, 398 N.J.Super. at 118 (citing Lombardo, supra, 269 N.J.Super. at 54).5  The same rule should apply to a passenger on a PWC. There is no evidence that Widerman goaded Miller to increase her speed, or to operate recklessly;  in fact, he testified he told her to slow down.   See id. at 122–23 (comparing cases where passenger “substantially encourages or assists in driver's tortious conduct” and cases where “passengers were merely companions who did nothing to substantially encourage or assist” a driver to drink and drive).   We recognize a passenger may owe a broader duty to a driver if the passenger maintains a special relationship with the driver, such as a master to a servant, or a parent to a child.  Id. at 121–22.   However, no such relationship exists here.

Consequently, we conclude Judge Todd correctly found that Widerman owed no duty to Miller, and granted summary judgment dismissing her claim against him.

Affirmed.

FOOTNOTES

1.  FN1. As we discuss below, only a boat safety certificate (BSC), not a license, was required for operation of a PWC in tidal waters.  N.J.S.A. 12:7–61(c).

2.  FN2. The court's order also addressed issues pertaining to Miller's claim against the Hackerts, which we need not discuss, as only Miller has appealed the courts' orders.   Miller and the Hackerts entered a stipulation of dismissal in June 2012 after settling Miller's claims.

3.  FN3. The record indicates that the State Police issued Miller a summons for violating N.J.S.A. 12:7–61(c), “Operating PWC Without a Safety Certificate.”

4.  FN4. We do not address whether Widerman would have exercised “custody or control” had he passed the operation of the PWC in open water, without Brian Hackert's contemporaneous consent, but still with his prior consent on shore.

5.  FN5. Had Widerman also suffered injuries, and sought recovery from Miller, based on her negligent operation, one would consider Widerman's comparative negligence based on his duty to protect himself.   He knew Miller was essentially untrained, unpracticed, and uncertificated and operating in rough seas.   See Ambrose v. Cyphers, 29 N.J. 138, 150 (1959) (stating that a passenger “is bound to exercise for his own safety the care of a reasonably prudent person under the circumstances”);  Lombardo, supra, 260 N.J.Super. at 53–54 (stating that an injured passenger may be comparatively negligent for failing to exercise reasonable care in remaining in a vehicle operated by an intoxicated driver).   However, at issue here is not Widerman's duty to protect himself, but his alleged duty to protect the operator from herself.

PER CURIAM

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