BORIS VARGAS VS. ALIBERIO AUGUSTO (L-5307-15, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-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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