NOT FOR PUBLICATION WITHOUT THE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-2525-17T1
JUAN NUNEZ,
Plaintiff-Appellant,
v.
LOUIS GALLO and LAUREN
GALLO,
Defendants-Respondents,
and
MARCELLO PETRUZELLA,
SALVATORE PETRUZELLA,
and PATRICIA PETRUZELLA,
Defendants.
Argued November 14, 2018 – Decided December 31, 2018
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, No. L-0217-16.
Richard LaBarbiera argued the cause for appellant
(LaBarbiera & Martinez, attorneys; Richard
LaBarbiera, on the brief).
Jerald J. Howarth argued the cause for respondents
(Howarth & Associates, LLC, attorneys; Jerald J.
Howarth and Purnima D. Ramlakhan, on the brief).
PER CURIAM
Plaintiff Juan Nunez slipped and fell on an icy and snow-covered public
sidewalk. He appeals from a January 23, 2018 order granting summary
judgment to defendants, who owned the residential home abutting the sidewalk .
We affirm. The residential homeowners breached no legal duty to plaintiff
because they did not add a new element of danger to the use of the public
sidewalk.
I
The material facts are not in dispute and we take them from the summary
judgment record, viewing them in the light most favorable to plaintiff. On
February 18, 2014, plaintiff slipped, fell, and injured his right knee while
delivering a package to defendants' home. Plaintiff was employed by Young
Entrepreneur, a company that contracted with FedEx to deliver packages.
From the evening of February 17, 2014, into the morning of February 18,
2014, several inches of snow fell and accumulated on the sidewalk where
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plaintiff had his accident. Around 7:15 a.m., defendant Louis Gallo removed
the snow from the sidewalk using a shovel and snow blower. Louis Gallo
testified that he did not observe any ice in the area where plaintiff fell. He also
acknowledged that he did not put down any salt or de-icing compound. Louis
Gallo then left for work at approximately 8:45 a.m. while it was still snowing.
Lauren Gallo testified that approximately four to five inches of snow had
accumulated before her husband removed the snow from the sidewalk. She
explained that after her husband left, the snow continued to fall up until the time
plaintiff had his accident at approximately 10 a.m. She also testified that she
did not recall seeing ice on the sidewalk.
Plaintiff arrived at defendants' home to make a delivery shortly before
10 a.m. He testified that on the morning of February 18, 2014, he began making
deliveries at 8 a.m. while it was lightly snowing. He made approximately twenty
deliveries prior to arriving at defendants' residence and when he arrived, it was
still snowing. Plaintiff further explained that he retrieved the packa ge to be
delivered to defendants' home from his truck and he slipped while carrying the
package on the public sidewalk. At his deposition, plaintiff testified that he
slipped on ice that was concealed by snow.
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Plaintiff remained immobilized for a few minutes on the sidewalk until
defendant Lauren Gallo came out to assist him. Plaintiff asked Lauren Gallo to
call an ambulance. At the hospital, plaintiff was diagnosed with a dislocated
and fractured patella. He underwent surgery and several months of physical
therapy.
In January 2016, plaintiff sued defendants alleging negligence. In support
of his claim, plaintiff retained Himad Beg, a professional engineer, as a liability
expert. Beg opined that plaintiff's fall was caused by a "hidden hazard in the
form of ice underneath fresh snow on a public sidewalk, which was uncleared,
unsalted and/or unsanded at the time of incident."
Following the completion of discovery, defendants moved for summary
judgment and to bar the use of Beg's expert report. In opposition, plaintiff
argued that the ice, which caused plaintiff to slip, formed by the melting and
refreezing of snow piles created by defendant Louis Gallo in the days prior to
plaintiff's fall. Moreover, plaintiff contended that Louis Gallo failed to use salt
or any ice melt component on the sidewalk on the morning of plaintiff's fall.
The trial court determined, as a matter of law, that defendants had no duty to
plaintiff because Louis Gallo's actions in clearing the sidewalk added no new
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danger or hazard. In making that ruling, the trial judge relied on the holding in
Foley v. Ulrich, 50 N.J. 426 (1967).
II
On appeal, plaintiff makes three arguments contending that the trial court
erred in granting summary judgment because (1) there were material issues of
fact regarding defendants' negligence; (2) the court should have relied upon
Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253 (App. Div. 2011),
where we held that a jury could find a public entity acted in a palpably
unreasonable manner in removing snow from a sidewalk; and (3) defendants'
voluntary undertaking to shovel the public sidewalk exposed them to liability.
We are not persuaded by these arguments and we affirm.
In reviewing summary judgment orders, we use a de novo standard of
review and apply the same standard employed by the trial court. Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (first citing Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014); then citing Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Accordingly, we determine
whether the moving parties have demonstrated there are no genuine disputes as
to any material facts and, if so, whether the facts, viewed in the light most
favorable to the non-moving party, entitled the moving party to judgment as a
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5
matter of law. R. 4:46-2(c); Davis, 219 N.J. at 405-06; Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). Moreover, in construing the law, our
review is plenary. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135-36
(2017) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
To establish negligence, a plaintiff must prove: "(1) a duty of care, (2) a
breach of that duty, (3) actual and proximate causation, and (4) damages."
Davis, 219 N.J. at 406 (quoting Jersey Cent. Power & Light Co. v. Melcar Util.
Co., 212 N.J. 576, 594 (2013)). A plaintiff bears "the burden of establishing
those elements 'by some competent proof.'" Townsend v. Pierre, 221 N.J. 36,
51 (2015) (quoting Davis, 219 N.J. at 406).
Under common law, residential property owners have no duty to clear the
snow and ice from public sidewalks abutting their land. Qian v. Toll Bros. Inc.,
223 N.J. 124, 135 (2015) (quoting Skupienski v. Maly, 27 N.J. 240, 247 (1958));
Luchejko v. City of Hoboken, 207 N.J. 191, 201 (2011). If a property owner
decides to remove snow from a public sidewalk, he or she will not be liable to a
person who is injured on the sidewalk "unless through [the owner's] negligence
a new element of danger or hazard, other than one caused by natural forces,
[was] added to the safe use of the sidewalk by a pedestrian." Luchejko, 207 N.J.
at 201 (alterations in original) (quoting Saco v. Hall, 1 N.J. 377, 381 (1949)).
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"As such, if a sidewalk had been cleared and the melting snow subsequently
froze into a layer of ice, the 'refreeze' would not be an 'element of danger or
hazard other than one caused by natural forces.'" Ibid. (quoting Foley v. Ulrich,
94 N.J. Super. 410, 424 (App. Div.) (Kolovsky, J.A.D., dissenting), rev’d, 50
N.J. 426 (1967) (reversing and adopting the Appellate Division dissent by Judge
Kolovsky)). Accordingly, residential property owners are encouraged to clear
public sidewalks, and they will not be subject to liability unless they create a
new danger or hazard other than one caused by natural forces.
Applying these well-established principles of law to the undisputed facts
in this case, defendants were entitled to summary judgment. Plaintiff premises
his argument principally on the contention that defendants created a greater
hazard by shoveling the snow into mounds alongside the public sidewalk, which
then melted and refroze on the sidewalk. That is the precise scenario described
in Foley, where the Supreme Court declined to find liability. Foley, 94 N.J.
Super. at 423-24. In the Appellate Division dissent, adopted by the Supreme
Court, Judge Kolovsky reasoned that a residential property owner does not owe
a duty to the public where the property owner shovels the snow fro m the
sidewalk, and ice forms on the sidewalk after the shoveled snow melts.
Specifically, the judge explained that
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[t]he danger to the safe use of the sidewalk which
existed when plaintiff fell was solely that caused by
natural forces, the freezing of melting snow, a natural
phenomenon which would have occurred if defendants
had not shoveled the sidewalk, particularly since
defendants' lawn sloped toward the sidewalk.
[Foley, 94 N.J. Super. at 423-24 (Kolovsky, J.A.D.,
dissenting).]
Plaintiff argues that we should reject the holding in Foley and expand a
homeowner's liability for snow removal from a public sidewalk. We reject that
position for several reasons. First and foremost, our Supreme Court has
repeatedly retained the distinction for premise liability between a residential
homeowner and a commercial property owner. See, e.g., Qian, 223 N.J. at 136;
Luchejko, 207 N.J. at 201-03. Moreover, public policy supports preserving the
current rule because society has an interest in encouraging people to clear public
sidewalks and avoiding "the inequity of imposing liability on those who
voluntarily do so." Luchejko, 207 N.J. at 201. Finally, although plaintiff
suggests that his status as a business invitee warrants the imposition of a
heightened duty, this contention is not supported by law. See Cogliati v. Ecco
High Frequency Corp., 92 N.J. 402, 415 n.6 (1983) ("The status of the injured
as trespasser, licensee, social invitee or business invitee has been a determinant
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in defining the owner's duty on private property; such delineation is irrelevant
with respect to the pedestrian on the public sidewalk.").
Plaintiff also argues that defendants here were negligent because they
failed to apply a de-icer after Louis Gallo cleared the snow from the sidewalk.
Defendants did not create any additional hazard by voluntarily shoveling the
snow and not applying salt or a de-icing compound. According to plaintiff's
theory, the ice was present before Louis Gallo shoveled the snow. Moreover, it
is undisputed that after Louis Gallo shoveled the snow, it continued to snow and
additional snow accumulated. Consequently, nothing Louis Gallo did created a
new danger or hazard. The ice was present under the snow before Louis Gallo
shoveled it. The ice was also present under snow that accumulated after Louis
Gallo shoveled the public sidewalk.
Plaintiff also relies on our decision in Tymczyszyn to argue that liability
should be imposed on defendants here. In Tymczyszyn, a municipal housing
authority was found to have a duty to an individual who slipped on a patch of
ice on a public sidewalk when that ice was formed by the melting and refreezing
from a pile of snow that had been created by the housing authority's snow-
clearing activities the previous day. 422 N.J. at 264-65. The holding in
Tymczyszyn, however, was predicated on treating the public housing authority
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like a commercial landlord. Id. at 263. Moreover, Tymczyszyn is a case
involving a public entity and the governing legal standard for the negligent
creation of a dangerous condition derived from the Tort Claims Act, N.J.S.A.
59:1-1 to 12-3, not common law. See Tymczyszyn, 422 N.J. at 264-65 (citing
N.J.S.A. 59:4-2(a)). Accordingly, that case is distinguishable and the
controlling case is Foley.
Finally, plaintiff argues that there are material fact disputes that should
have precluded summary judgment. Plaintiff fails, however, to identify any
material fact disputes. Instead, he makes his argument in conjunction with
arguing for an extension of a residential homeowner's liability. A review of the
record establishes that the material facts were not in dispute and that defendants
were entitled to summary judgment.
Affirmed.
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