BORIS VARGAS VS. ALIBERIO AUGUSTO (L-5307-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4897-17T1

BORIS VARGAS and
MELBA VARGAS, his wife,

Plaintiffs-Appellants,

v.

ALIBERIO AUGUSTO and
ALICE DASILVA,

Defendants-Respondents,

and

TOWN OF KEARNY, COUNTY OF
HUDSON, STATE OF NEW JERSEY,

Defendants.
_______________________________

Argued April 3, 2019 - Decided August 6, 2019

Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey
Law Division, Hudson County, Docket No. L-5307-
15.
 William C. Saracino argued the cause for appellants
(Saracino & Saracino, LLC, attorneys; William C.
Saracino, on the briefs).

Amanda J. Sawyer argued the cause for respondents
(Methfessel & Werbel, attorneys; Amanda J. Sawyer,
of counsel and on the brief).

PER CURIAM

Plaintiffs Boris and Melba Vargas appeal from a final order dismissing

their personal injury action against defendants Aliberio Augusto and Alice

DaSilva on defendants' motion for summary judgment. Because we conclude

plaintiffs established a prima facie case of negligence on the motion sufficient

to survive summary judgment, we reverse.

Plaintiff Boris Vargas alleges he slipped on black ice in the street

immediately adjacent to a drain pipe emptying snow and ice melt from

defendants' roof, causing him to fall and suffer a trimalleolar fracture of his

ankle. The accident occurred after dark on January 10, 2014, as plaintiff was

walking to his home in front of defendants' house in an area with no sidewalk.

Plaintiff submitted the report of an expert who reviewed weather data for the

day of the accident, as well as the days immediately preceding it, and

examined the gutter and leader system running from defendants' roof under

their driveway and discharging into the street. The expert took measurements

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and calculated the slope of the driveway and the street in the area where the

leader pipe discharged, and concluded that conditions were such that water

coming from the pipe would freeze on the asphalt in the area where plaintiff

fell, making it a substantial contributing factor to the accident.

The trial court judge rejected defendants' argument that the expert report

constituted a net opinion but granted summary judgment, finding plaintiff

failed to establish any duty on defendants' part to keep the street in front of

their home free of ice. Plaintiff's motion for reconsideration was likewise

denied.

Plaintiff appeals, arguing he established a prima facie case of negligence

on the motion. Defendants contend the trial court judge was correct to

conclude they owed no duty to plaintiff. Defendants further contend that even

if they owed plaintiff a duty, the drizzle at the time of plaintiff's fall and "other

sources of drainage" established "concurrent causes of harm were present," and

that plaintiff failed to establish that defendants' "negligence was a substantial

factor that singly or in combination with other causes" brought about plaintiff's

injury. They also contend plaintiff's expert report should have been deemed an

inadmissible net opinion as the expert failed to establish the standard of care,

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and plaintiff did not allege facts giving rise to breach of any duty that did

exist.

We review summary judgment using the same standard that governs the

trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). Thus, we

must determine "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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

Turning first to the issue of duty, we conclude the parties looked to the

wrong source in briefing this issue for the trial court. They presented run-of-

the-mill sidewalk cases, which the court rightly rejected as inapplicable. See

Luchejko v. City of Hoboken, 207 N.J. 191, 204 (2011) (noting the Court has

not deviated "from the basic principle that residential property owners are not

liable for sidewalk injuries"). This case, however, is controlled by Gellenthin

v. J. & D., Inc., 38 N.J. 341, 353 (1962), in which our Supreme Court held

that if a landowner constructs or maintains drain
pipes, leaders or similar artificial conduits of surface
water in such a manner that the water thus collected is
so discharged that it reaches the public sidewalk and
there freezes, making the sidewalk dangerous to

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 travelers, then he is chargeable with negligently
creating an unreasonable risk of injury.

The Gellenthin rule is "applicable to any part of the public highway or street."

Knapp v. Phillips Petroleum Co., 123 N.J. Super. 26, 33 (App. Div. 1973).

As there is no question but that defendants owed plaintiff a duty under

Gellenthin, and defendants did not dispute that plaintiff was injured in the fall,

the only issues on the motion were breach and proximate cause. See

Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04 (2015) (setting out the

four elements of a negligence claim). Like the trial judge, we reject

defendants' claim that plaintiff's expert report constituted an inadmissible net

opinion on causation. Although the expert was incorrect that a municipal

ordinance requiring the removal of snow and ice created a tort duty, see

Luchejko, 207 N.J. at 200-01 (noting the rule has been to the contrary in this

state for over one hundred years), that error is of no moment as Gellenthin

supplies the duty, see 38 N.J. at 353.

What the expert did through his investigation of weather conditions ,

examination of the property and measurements of the slope of defendants'

driveway and the street was establish that water traveling through the leader

system could have created the black ice on the asphalt street which plaintiff

alleged caused him to slip and fall. See Townsend v. Pierre, 221 N.J. 36, 53-

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55 (2015). Although we agree with defendants that plaintiff's deposition

testimony, delivered through an interpreter, regarding the presence of ice on

the road was equivocal, he was, on the motion, entitled to have all legitimate

inferences from the facts drawn in his favor. Globe Motor, 225 N.J. at 480.

Plaintiff testified it was cold and drizzly as he walked in the street down

the hill to his house on the night of the accident. Although the temperature

was above freezing at thirty-five degrees, plaintiff's expert claimed

temperatures were well below freezing in the days leading up to the accident

with some snow and rain, causing snow melt and refreezing. The expert also

concluded conditions were such that ice could form on the asphalt

notwithstanding the temperature was above freezing. Plaintiff was wearing

boots, and testified he had no difficulty walking from his car down the hill

until he was right in front of defendants' drainage pipe, where he slipped.

Although he did not see ice or feel it when he fell, he testified it was very

slippery in that particular area, and noted the ambulance crew also had trouble

staying upright when they arrived to assist. He testified that after he crawled

to the curb and collected himself, he realized he had slipped on black ice.

Contrary to defendants' assertion, plaintiff had no obligation on the

motion to exclude all other possible sources of the slippery condition of the

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street where he fell. Reyes v. Egner, 404 N.J. Super. 433, 467 (App. Div.

2009) (noting issues of proximate cause are ordinarily jury questions). It will

be for the jury to decide if water from defendants' roof freezing on the street

caused plaintiff to slip and fall or whether it was the drizzly conditions or oil

and grease on the asphalt, or none of these things. We conclude only that the

evidence as to the cause of the accident was not so one-sided as to compel a

decision in defendants' favor. See Liberty Surplus Ins. Corp. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

Reversed.

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