                                NOT FOR PUBLICATION WITHOUT THE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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                                      2
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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                                        3
      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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                                        4
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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                                       6
"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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                                         7
            [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




                                                                          A-2525-17T1
                                        8
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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                                        9
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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