SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0252
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KATHLEEN VOTOR - JONES,

Plain tiff

- Appellant,

v. EDWIN KELLY, MICHELE CAROSELLI, WILLIAM JOST, and KELLY'S TAVERN,

Defendants
- Respondents.

_________________ _____________

______ Argued August 14, 2018

– Decided Before Judges Messano and Geiger. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L - 2079
- 12.
Thomas J. Manzo argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Thomas J. Manzo, of counsel; Brandon C. Simmons, on the brief ) . Christopher J. Brennan argued the cause for respondent Edwin Kelly (Greer Law Firm, attorneys; Donald K. Greer, on the brief). Terence M. King argued the cause for respondent Kelly's Tavern.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36
- 3.

August 24, 20182 A - 0252
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Plaintiff Kathleen Votor
- Jones appeals from the La w Division's grant of summary judgment to defendant s, Edwin Kelly and Kelly's Tavern , dismissing with prejudice her complaint seeking damages arising out of injuries she suffered while co defendant, Michelle Caroselli, piloted a personal watercraft 1 (PWC). We affirm.

I . We glean the following facts from the record and view them in the li ght most favorable to plaintiff . Brill v. Guardian Life
Ins. Co. of Am. , 142 N.J. 520, 540 (1995); see also R. 4:46
- 2 . On July 4, 2011, plaintiff was one of seven employee s and patrons of Kelly's Tavern invited on a social trip organized by
the tavern's owner and plaintiff's boyfriend , Edwin Kelly. Plaintiff descr ibed the event as a "bar outing, " but, while Kelly's

Tavern formerly held "large scale" "customer appreciation days," this event was small and planned the night prior at the suggestion
of the boat's operator, Fred Pierce. The plan was for each attendee to bring their own food and
alcohol . A t some point on the morning of July 4, p laintiff and Kelly went to Kell y's Tavern to fill a cooler . Kelly estimated

1 See N .J.S.A. 12:7
- 62 (defining personal watercraft ).3 A - 0252
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the cooler had twenty
- four beers and a bottle of wine. In total, the group had four or five coolers on the boat. Everyone met at the dock near Kelly's house in Neptune a round
11 a.m. , but due to a problem with the boat, the trip was delayed
for about an hour. While there was a tacit agreement among the parties that no one would drink until 4:00 p.m., Michelle Caroselli acknowledged she was drinking prior to boarding the boat , and plaintiff testified she "saw [ Caroselli ] drink at least three
beers on the dock." The boat left the dock around noon and Pierce piloted the boat for about an hour before he stopped near Asbury Park and let it drift. The boat was accompanied by a PWC owned by Kelly and operated by Lou Dahlman. Plaintiff said that during the trip to
the drifting point , Caroselli had a beer in her hand and described
her as "loud," "boisterous," and "excited," but conceded she did not know if she was intoxicated. Plaintiff did not hear Caroselli slur her words, but stated she was wobbling on the boat , as was everyone else.

T wenty minutes after stopping, Dahlman asked Caroselli if she wanted to drive the PWC. She agreed, so Dahlman slid back to allow her to board the PWC. Carosell i testified she received instructions from Dahlman , who remained on the PW C , but could not
recall discussing anything with Kelly. Kelly testified Caroselli4 A - 0252
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asked for permission to use the PWC, which he granted after assuring she had a license. Once on the PWC, Caroselli drove a way from the boat at full speed and when she and Dahlman were "pretty far off , " plaintiff and Kelly jumped in the water to swim. Thereafter, Caroselli turned around and approached the boat at approximately 40 miles per hour when she struck plaintiff and Kelly. Plaintiff and Kelly were assisted back ont o the boat and rushed to the nearest dock. There, Caroselli spoke to the police, but no arrests were made nor

summonses issued . Plaintiff filed suit claiming, William Jost, the boat 's
owner, Caroselli , Kelly's Tavern and Kelly, individually, negligently caused her personal injuries and resulting damages. Plaintiff's claim against Jost was dismissed by stipulation of the parties. Following discovery, Kelly's Tavern and Kelly moved for summary judgment, which the motion judge granted. The judge rejected plaintiff's claim that Kelly's Tavern was negligent in serving alcohol to a visibly intoxicated person in violation of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A
- 1 to
- 7 (Dram Shop Act). The judge also rejected p laintiff's social host liability and negligent entrustment theories against Kelly, individually.5 A - 0252
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Plaintiff appeals and renews the same arguments before us. During the pendency of this appeal, plaintiff dismissed her claims against Caroselli by stipulatio n of the parties.

II . We review a trial court's grant of summary judgment de novo, employing the same standard used by the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. , 224 N.J. 189, 199 (2016). Under that standard, the trial co urt shall grant summary judgment if the evidence "show[s] that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46
- 2(c); see also Brill , 142 N.J. at 528
- 29 . A. We first address plaintiff's statutory causes of action. To prevail on a Dram Shop Act claim, a party must present evidence that an establishment served alcohol to a visibly intoxicated individual. N.J.S.A. 2A:22A
- 5; see also Halvorsen v. Villamil , 4 29 N.J. Super. 568, 575 (App. Div. 2013). The Dram Shop Act was " designed to protect the rights of persons who suffer loss as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server ." N.J.S.A. 2A:22A
- 2 . A "'Licen sed alcoholic beverage server' or 'server' means a person . . . who has been issued a permit to sell alcoholic beverages by6 A - 0252
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the Division of Alcoholic Beverage Control in the Depart ment of Law and Public Safety." N.J.S.A. 2A:22A
- 3 . Service need not be di rect, as " a commercial server who provides alcohol to a customer by a means other than direct se rvice may nonetheless be liable . . . notwithstanding the use of the term 'serve' in the

statute." Dower v. Gamba , 276 N.J. Super. 319, 326 (App. Div. 1994) . W e reject as too attenuated plaintiff's contention that the circumstances here fall within the scope of the Dram Shop Act,
because n either Kelly's Tavern nor Kelly individually were acting

as a " Lic ensed alcoholic beverage server" or "server" contemplated
b y the statute. N.J.S.A. 2A:22A
- 3 . Similarly, Caroselli was not

a " customer " of Kelly's Tavern or Kelly. Plaintiff's attempt to color this event as a "bar outing " is not supported by the facts. While there was testimony indicating Kelly's Tavern used to have "customer appreciation days," those events ceased fifteen years ago and were "large scale" with about "a h undred people" that "had
passes. " By contrast, this occasion was informal, small

- scale and required attendee s to bring their own food and alcohol . Nonetheless , we address the merits of plaintiff's argument
that "[t]here is a factual dispute as to whether Caro selli was visibly intoxicated." In suppo rt this claim, p laintiff relies on7 A - 0252
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her observations of Caroselli drinking several beers and acting excited and boisterous. The Dram Shop Act defines "visibly intoxicated" as "a state of intoxication accompanied by a perceptible act or series of acts which present clear signs of intoxication." N.J.S.A. 2A:2 2A
- 3. Examples of a "visibly intoxicated" include persons exhibiting "a blank sta[re] look, " being " animated, loud, " having "a very slight
sway , " " slurring . . . words, using rapid hand movements while talking, " and an appearance that the " eyes were drunk . . . [l]ike floating eyeballs. " Verni ex rel. Burstein v. Harry M. Stevens,

Inc. , 387 N.J. Super. 160, 178 (App. Div. 2006) ; see also Truchan v. Sayreville Bar & Rest ., Inc. , 323 N.J. Super. 40, 45 (App. Div. 1999) (finding evidence of visible intoxication where an individual was loud, boisterous, and repe ating himself in a conversation). While lay opinion may be used to establish a person was intoxicated and expert opinion is not necessary, see St ate v.
McLean , 205 N.J. 438, 457 (2011), neither is present in this case. Neither p laintiff, nor anyone else, hear d Caroselli slur her words and plaintiff conceded she could not discern if Caroselli was intoxicated . Moreover, t he evidence of "visible int oxication" in this case pales when compared to evidence present ed in Verni , 387 N.J. Super. at 1 80, where police officers stated, "[o] n a scale8 A - 0252
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of one
- to - ten, " the individual's " level of intoxication [w]as a ten," and a test found his " blood
- alcohol conc entration (BAC ) [was] .266 percent, " and Truchan 323 N.J. Super. at 45
- 46, where
the individual was " falling , " " unable to stand ," speech "'slobbering , ' slurred and slow ," and " tests revealed his [BAC] to be .201 [percent]." Thus, t he judge properly ruled plaintiff failed to establish visible intoxication sufficient to prevail on a Dram Shop Act claim.
For the same reason , we reject plaintiff's social host liability theory pursuant to N.J.S.A. 2A:15
- 5.5 to
- 5.8. Similar to her Dram Shop Act claim, plainti ff submits "there are factual issues as to who provided the alcohol" and "whether Caroselli was visibly intoxicated." Under N.J.S.A. 2A:15
- 5.6, an injured party:

[M] ay recover damages from a social host only if: (1) The social host willfully and knowingl y provided alcoholic beverages either: (a) To a person who was visibly intoxicated in the social host's presence; or (b) To a person who was visibly intoxicated under circumstances manifesting reckless disregard of the consequences as affecting the life or property of another; and (2) The social host provided alcoholic beverages to the visibly intoxicated person under circumstances which created an9 A - 0252
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- 5.6 (emphasis added).]

P laintiff at best offered evidence Caroselli had been drinking, but submitted insufficient evidence to support a claim of visibl e intoxication. Thus, w e affirm the grant of summary judgment related to plaintiff's social host liability claim.

B. Plaintiff also advances a theory of liability against Kelly under the pri nciple of negligent entrustment. Under this theory, plaintiff a lleges "[a] jury could find . . . Kelly was negligent for entrusting the [PWC] to someone who had been drinking" or "for failing to realize[] that Caroselli had been drinking . " Plaintiff further submits, "Kelly had a duty . . . to inquire as to Caroselli' s knowledge, fitness and experience " before permitting
her to use the PWC. "To sustain a cause of action for negligence, a plaintiff must establish four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Townsend10 A - 0252
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v. Pierre , 221 N.J. 36, 51 (2015) (citation omitted). More specifically, n egligent entrustment is defined as:

[P]ermit[ting] a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others . [ Restatement (Second) of Torts § 308 (Am. Law Inst. 1965); see also Lombardo v. Hoag , 269 N.J. Super. 36 (App. Div. 1993). ] In an action based on the theory of negligent entrustment, the plaintiff must prove:

(1) the entrustee was incompetent, unfit, inexperienced, or reckless; (2) the entrustor knew (in some jurisdictions "actually" knew), should have known, or had reason to know of the entrustee's condition or proclivities; (3) there was an entrustment of the dangerous instrumentality; (4) the entrustment created an appreciable risk of harm to others; and (5) the harm to the injury victim was "proximately" or "legally" caused by the negligence of the entrustor and the entrustee. [57A Am. Jur. 2d Negligence § 318 (2005).] Here, plaintiff cannot establish the first two elements. T he evide nce fails to demonstrate the first element because Caroselli
possess ed a certificate demonstrating completion of a boat safety11 A - 0252
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course , 2 which she presented at her deposition , and she testified to previous experience using PWCs.
Furthermore , there was in s ufficient evidence to establish Kelly knew or should have known of Caroselli 's level of intoxication or experience with PWC s . Kelly's uncontroverted testimony indicates that before he allowed Caroselli to use the PWC he asked if she had a certificate; was told that she had driven her previous boyfriend 's PWCs; and conditioned his permission on Dahlman, a certified boat captain, accompanying her. Caroselli's testimony merely states she did not recall this conversation with Kelly and fails to illuminate the state of Kelly's knowledge at the time he entrusted her with the PWC. Moreover, t he mere fact that Caroselli was drinking is not enough to establish she was intoxicated. See Gustavson v. Gaynor , 206 N.J. Super. 540, 545 (App. Div. 1985) (noting the fact an individual has consumed alcohol is by itself insufficient to warrant an inference that the individual was intoxicated and that the intoxication therefore rendered the individual negligent) .

2 We note that for this reason plaintiff cannot premise negligence based on violation of N.J.S.A. 12:7
- 61(f) , which makes it a finable offense for a person who " owns or has control or custody of a [PWC]" to permit it to be operated by a person who does not

" possess a certificate certifying successful completion of a boat safety course ."12 A - 0252
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Simply put, o ur court rules favor the expeditious resolution

o f matters throu gh the summary judgment process where " there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. " Pierce v. Ortho Pharmaceutical Corp. , 84 N.J. 58 , 65 (1980). Such is the case here. Affirm ed.