                        NOT FOR PUBLICATION WITHOUT THE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.




                                       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 August 24, 2018

              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
       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 co-

defendant,    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).

                                         2                                    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

                                   3                            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.



                                     4                                   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

                                   5                                 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



                                    6                             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

                                    7                            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

                                        8                             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



                                   9                            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

                               10                          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."

                                    11                              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.




                                12                          A-0252-17T3
