SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0252-17T3

KATHLEEN VOTOR-JONES,

Plaintiff-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NOT FOR PUBLICATION WITHOUT THE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." 

Although 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, 2018
2 A-0252-17T3

Plaintiff Kathleen Votor-Jones appeals from the Law 

Division's grant of summary judgment to defendants, Edwin Kelly 

and Kelly's Tavern, dismissing with prejudice her complaint 

seeking damages arising out of injuries she suffered while codefendant, Michelle Caroselli, piloted a personal watercraft1

(PWC). We affirm.

I.

We glean the following facts from the record and view them

in the light 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 employees and 

patrons of Kelly's Tavern invited on a social trip organized by 

the tavern's owner and plaintiff's boyfriend, Edwin Kelly. 

Plaintiff described 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. At some point on the morning of July 4, plaintiff and 

Kelly went to Kelly's Tavern to fill a cooler. Kelly estimated 

 

1 See N.J.S.A. 12:7-62 (defining personal watercraft).
3 A-0252-17T3

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 around 

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. 

Twenty 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. Caroselli testified she received

instructions from Dahlman, who remained on the PWC, but could not 

recall discussing anything with Kelly. Kelly testified Caroselli
4 A-0252-17T3

asked for permission to use the PWC, which he granted after 

assuring she had a license.

Once on the PWC, Caroselli drove away 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 onto 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 plaintiff's social host liability and negligent 

entrustment theories against Kelly, individually.
5 A-0252-17T3

Plaintiff appeals and renews the same arguments before us. 

During the pendency of this appeal, plaintiff dismissed her claims 

against Caroselli by stipulation 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 court 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, 429 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 

"'Licensed alcoholic beverage server' or 'server' means a person 

. . . who has been issued a permit to sell alcoholic beverages by 
6 A-0252-17T3

the Division of Alcoholic Beverage Control in the Department of 

Law and Public Safety." N.J.S.A. 2A:22A-3. Service need not be 

direct, as "a commercial server who provides alcohol to a customer 

by a means other than direct service 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).

We reject as too attenuated plaintiff's contention that the 

circumstances here fall within the scope of the Dram Shop Act, 

because neither Kelly's Tavern nor Kelly individually were acting 

as a "Licensed alcoholic beverage server" or "server" contemplated 

by 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 hundred people" that "had 

passes." By contrast, this occasion was informal, small-scale and 

required attendees 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 Caroselli was 

visibly intoxicated." In support this claim, plaintiff relies on 
7 A-0252-17T3

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:22A-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 repeating himself in a 

conversation).

While lay opinion may be used to establish a person was 

intoxicated and expert opinion is not necessary, see State v. 

McLean, 205 N.J. 438, 457 (2011), neither is present in this case. 

Neither plaintiff, nor anyone else, heard Caroselli slur her words

and plaintiff conceded she could not discern if Caroselli was

intoxicated. Moreover, the evidence of "visible intoxication" in

this case pales when compared to evidence presented in Verni, 387 

N.J. Super. at 180, where police officers stated, "[o]n a scale 
8 A-0252-17T3

of one-to-ten," the individual's "level of intoxication [w]as a 

ten," and a test found his "blood-alcohol concentration (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, the 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, plaintiff 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 knowingly 

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 an 
9 A-0252-17T3

unreasonable risk of foreseeable harm to the 

life or property of another, and the social 

host failed to exercise reasonable care and 

diligence to avoid the foreseeable risk; and

(3) The injury arose out of an accident caused 

by the negligent operation of a vehicle by the 

visibly intoxicated person who was provided 

alcoholic beverages by a social host.

[N.J.S.A. 2A:15-5.6 (emphasis added).]

Plaintiff at best offered evidence Caroselli had been 

drinking, but submitted insufficient evidence to support a claim 

of visible intoxication. Thus, we 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 principle of negligent entrustment. Under this theory, 

plaintiff alleges "[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." Townsend 
10 A-0252-17T3

v. Pierre, 221 N.J. 36, 51 (2015) (citation omitted). More 

specifically, negligent 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. The 

evidence fails to demonstrate the first element because Caroselli 

possessed a certificate demonstrating completion of a boat safety 
11 A-0252-17T3

course,

2 which she presented at her deposition, and she testified 

to previous experience using PWCs. 

Furthermore, there was insufficient evidence to establish 

Kelly knew or should have known of Caroselli's level of 

intoxication or experience with PWCs. 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, the 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-0252-17T3

Simply put, our court rules favor the expeditious resolution 

of matters through 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.

Affirmed.