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.

NOT FOR PUBLICATION WITHOUT THE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.
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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-ofthe-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.