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

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, No. L-0217-16.

NOT FOR PUBLICATION WITHOUT THE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.

December 31, 2018
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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 package 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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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 from 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 snowclearing 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.