SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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BORIS VARGAS and MELBA VARGAS, his wife , Plaintiff s - Appellant s ,

v. ALIBERIO AUGUSTO and ALICE DA SILVA , Defendant s - Respondent s, and TOWN OF KEARNY, COUNTY OF HUDSON, STATE OF NEW JERSEY, Defendants.

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Argued April 3 , 201 9

- 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

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- 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 NOT FOR PUBLICATION WITHOUT THE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

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- 17T1 William C. Saracino argued the cause for appellant s ( Saracino & Saracino, LLC , attorneys; William C. Saracino, on the brief s ). Amanda J. Sawyer argued the cause for responde nt s ( 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 defendant s Aliberio Augusto and Alice DaSilva on d efendants ' 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
imm ediately adjacent to a drain pipe emptying s now and ice melt from
defendant s ' roof , causing him to fall and suffer a trim a ll eolar fracture of his ankle. The accident occurred after dark on January 10, 201 4 , 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 pr e ceding it , and examined the gutter and leader system running from defendants ' roof under
their driveway and discharging into the street . The expert took measurements3 A

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and calculated the slope of the driveway and the s treet in the area where the leader pipe discharged , and concluded that conditions were such that wat er 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 defendant s ' argument that the expert r eport constituted a net opinion but gr anted 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. Defendant s 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 o f plaintiff's fall and "other sources of drainage" established "concurrent causes of harm were present , " and that plaintiff failed to establish that defendant s ' "negligence was a substantial factor that singly or in combination with other causes " brought a bout 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 ,4 A

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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 fav orable 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 t o the
wrong source in briefing this issue for the trial court. The y 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 he ld

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 dang erous to5 A

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As there is no question but that defendant s owed plaintiff a duty under
G e llenthin , and defendant s 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 a n inadmissible net
op inion on causation . Although the expert was incorrect that a municipal ordinance requiring the removal of snow and ice created a tort duty, s ee 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 dut y, 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 defendant s ' 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 defendant s 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 walk ed 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 difficul ty 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, p laintiff had no obligation on the
motion to ex clude all other possible sources of the slippery condition of the7 A

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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.