SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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December 31, 20182 A

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- 17T1 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

. T he residential homeowners breached no legal duty to plaintiff because they did not add a new element of danger to the use of the public sidew alk.
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 deliver ing a package to defendant s ' 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 si dewalk where3 A

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plaintiff had his accident. Around 7:15 a.m., defendant Louis Gallo removed the snow from the s idewalk 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 continue d to fall up until the time plaintiff had his acciden t at approximately 10 a.m. She also testified that she
did not recal l seeing ice on the sidewalk. Plaintiff arrived at defendant s ' home to ma ke a delivery shortly before
10 a.m. He testified that on the morning of February 18, 2014, he began making
deli veries at 8 a.m. while it was lightly snowing. He made approximately twenty deliveries prior to arriving at defendant s ' residence and when he arrived , it was still snowing. Plaintiff further explained that he retrieved the packa ge to be delivered to defe ndant s ' 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.4 A

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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 , pla intiff argued that the ice , which caused plaintiff to slip, formed by the melt ing and refreezing of snow piles created by defendant Louis Gallo in the days prior to plaintiff's fall. Moreover, plaint iff 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 clear ing the sidewalk added no new5 A

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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 j udgment because (1) there were material issu es of
fact regarding defendant s ' 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 fro m a sidewalk; and (3) defendant s ' 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 or ders, 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 n on - moving party, entitled the moving party to judgment as a6 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. M acrietta 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 pub l ic 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 w ill not be liable to a person wh o is injured on the sidewalk " unless through [the owner's] negligence a new eleme nt of danger or hazard, other than one cause d 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)).7 A

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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 unles s 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 principall y on the contention that defendants created a greater hazard by shoveling the snow into mounds along side 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 that8 A

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- 17T1 [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 me lting snow, a natural phenomenon which would have occurred if defendant s had not shoveled the sidewalk, particularl y since defendant s ' lawn sloped toward the sidewalk. [ Foley , 94 N.J. Super. at 42 3

- 2 4 (Kolovsky, J.A.D., dissenting) .] Plaintiff argues th at 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 li ability 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 busines s 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 determinant9 A

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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. Defendant s 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 G allo 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 b efore 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 Tymc zyszyn , a municipal housing authority was f

ound 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 an d refreezing from a pile of snow that had been c reated by the housing authority's s now clearing activities the previous day. 422 N.J. at 264

- 65. The holding in Tymczyszyn , however, was predicated on treating the p ublic h ousing a uthority10 A

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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

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- 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 disput es. 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.