KATHLEEN VOTOR-JONES VS. EDWIN KELLY (L-2079-12, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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).
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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 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
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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 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.
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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 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
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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
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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: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
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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 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
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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
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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."
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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.
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