Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the ROSA PEREZ v. JOSEPH BATOR, JANE BATOR JOSE PARRAGUEZ and ROSALYNE ROCIO) PARRAGUEZ -

NOT FOR PUBLICATION WITHOUT THE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-1264-16T3

ROSA PEREZ,

        Plaintiff-Appellant,

v.

JOSEPH BATOR, JANE BATOR,
JOSE PARRAGUEZ and ROSALYNE
(ROCIO) PARRAGUEZ,

     Defendants-Respondents.
__________________________________

              Argued December 4, 2017 – Decided December 19, 2017

              Before Judges Sabatino, Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              1710-15.

              Kelly M. Stoll argued the cause for appellant
              (The Donnelly Law Firm, LLC, attorneys; Kelly
              M. Stoll and Abraham N. Milgraum, on the
              brief).

              Monique D. Moreira argued the cause for
              respondents Joseph and Jane Bator (Moreira &
              Moreira, PC, attorneys; Monique D. Moreira,
              on the brief).

              William Pfister, Jr., argued the cause for
              respondents Jose and Rosalyne Parraguez.

PER CURIAM
     In this slip-and-fall case brought against two neighboring

homeowners, plaintiff Rosa Perez appeals the trial court's grant

of summary judgment to both defendants.     We affirm, albeit for

slightly different reasons than those expressed by the motion

judge.

     We summarize and consider the factual record in a light most

favorable to plaintiff.   R. 4:46-2(c); Brill v. Guardian Life Ins.

Co. of Am., 
142 N.J. 520, 540 (1995).      On the cold morning of

February 6, 2014, at about 8:15 a.m., plaintiff was walking with

her grandchild on a public sidewalk in the Town of Harrison.     The

sidewalk was in front of the row-house residences of defendants

Joseph and Jane Bator, the owners of 
314 North 5th Street, and

Jose and Rosalyne Parraguez, the owners of 
312 North 5th Street.

Both the Bators and the Parraguezes have rooftop gutters and

downspouts.   The downspouts channel rain water and snowmelt into

the common alleyway between defendants' two buildings, and also

spill water directly onto the public sidewalk. The sidewalk itself

is slanted slightly towards the street.1




1
 As counsel acknowledged at oral argument, the expert reports are
inconclusive as to whether the sidewalk has a transverse slope
from north to south (i.e., towards 
312 N. 5th Street), from south
to north (i.e., towards 
314 N. 5th Street), or whether the
transverse slope varies in both directions.

                                 2                          A-1264-16T3
     Weather reports reflect that it had snowed and rained at

various   times   over   the    previous     days.    As   of     the   time    of

plaintiff's fall the temperature was below freezing.               Apparently,

melted snow and accumulated water had frozen, or refrozen, on the

sidewalk.   One witness described the area of the sidewalk where

plaintiff fell as "an ice rink."           Reportedly, several children had

played on the sidewalk that morning, pretending they were skating,

and several of them had fallen down.

     At the moment plaintiff and her grandchild were walking down

the sidewalk, Rosalyne Parraguez was outside, attempting to remove

snow and ice from the sidewalk in front of the Bators' residence.

According to Parraguez's deposition testimony, she yelled out to

plaintiff to warn her that the sidewalk was icy and slippery.

However, plaintiff apparently did not hear that warning.                       She

slipped on the ice and injured herself.           The location at which she

fell was near the alleyway, and apparently in front of or slightly

closer to the Bators' residence.

     Plaintiff    brought      this   personal   injury    case    in   the    Law

Division against the Bators and the Parraguezes, alleging that

both defendants had negligently breached an alleged duty of care

to her with respect to the dangerous and slippery condition of the

sidewalk.   In support of her claims, plaintiff retained a licensed

professional engineer as a liability expert.           The expert examined

                                       3                                 A-1264-16T3
the location, photographs of the scene, the parties' discovery

responses, and other materials.

      Among other things, plaintiff's expert concluded "[t]he roof

downspouts' direct discharge onto the concrete [sidewalk] . . .

and the slope of the concrete sidewalk toward the curbline was

conducive to transport stormwater or snowmelt toward, to and[/]or

through the incident location and be subject to refreezing at

lower temperatures at the time of [plaintiff's] accident."                      The

expert further opined that the slope of the sidewalk "caused

stormwater or snowmelt that was discharged from the downspouts to

be conveyed onto and over the incident location, and be subject

to freezing, which was a foreseeable hazardous and dangerous

condition that [defendants] knew before the time of [plaintiff's]

accident."

      Plaintiff's expert further stated that "[t]he downspouts'

discharge of stormwater or snowmelt onto the concrete sidewalk was

an inherent defect of both houses."            He added that "[u]ltimately,

this inherent defect, in conjunction with the slope of the sidewalk

and   freezing    temperatures,     caused     a   hazardous     and     dangerous

sidewalk    and   was    a   substantial     factor   in   the   occurrence       of

[plaintiff's] accident."

      The    Bators     retained   an     engineering      expert   to    counter

plaintiff's liability expert.           After performing his own inspection

                                         4                                 A-1264-16T3
of the site and review of the photographs and other materials,

that defense expert stated, "[i]t is simply not clear whether any

refreeze snowmelt came from the downspouts."               He acknowledged that

"[t]he   water   might   have      come      from    the   downspouts,     but     it

[alternatively] could have come from any snow uphill of the fall

site[.]"   Given the various slopes involved, the defense expert

did opine that it was "improbable" that the precipitation that

refroze came out of either residence's downspout.

     The defense expert further opined that the homeowners had

been "vigilant in their snow and ice mitigation measures."                         He

noted the record indicated the homeowners "[took] care of the

snow" before they left for work, and that Mrs. Parraguez was

actually   treating    the   ice    on       the    sidewalk    at   the   time    of

plaintiff's mishap.2

     In moving for summary judgment, defendants principally relied

upon Foley v. Ulrich, 
50 N.J. 426 (1967).                      In that case, the

Supreme Court adopted a dissenting opinion of a judge of this

court in finding no liability of residential homeowners for the

slippery condition of a public sidewalk created by the melting and

refreezing of snow and ice the homeowners had cleared away, but


2
  The motion judge found that the reports of plaintiff's expert
and the defense expert were not inadmissible net opinion, a finding
that we endorse. Hence, we consider the substance of those expert
reports in the course of our own analysis.

                                         5                                  A-1264-16T3
which had thereafter melted back onto the sidewalk due to the

slope of the surrounding lawn.          Foley, 
94 N.J. Super. 410, 419-26

(App. Div. 1967) (Kolovsky, J.A.D., dissenting).               The dissent in

Foley reasoned that the defendants in that case, as residential

property-owners, had no duty in tort to take affirmative steps to

remove snow and ice from the public sidewalk, and that the record

failed to show their conduct in removing snow and ice from the

sidewalk and piling it onto the adjacent lawn created no new

element of danger beyond natural forces.              Id. at 425-46.

     Plaintiff argues that Perez is distinguishable here.                      She

asserts,    among    other    things,   that    the     "artificial"    role    of

defendants' gutters and downspouts in channeling water onto the

sidewalk created, or at least worsened, the natural conditions of

the sidewalk.

     The motion judge substantially relied on Foley in granting

defendants' motion.         As a preliminary matter, he found that the

condition at issue here was natural rather than artificial.                     In

addition,    the    judge    stressed   the    general    principles    of   tort

immunity    for    residential   homeowners      with    respect   to   clearing

adjacent public sidewalks, as set forth by the Supreme Court in

Stewart v. 104 Wallace Street, Inc., 
87 N.J. 146, 159 (1981), and

most recently reaffirmed by the Court in Luchejko v. City of

Hoboken, 
207 N.J. 191, 210 (2011). The judge also expressed public

                                        6                                A-1264-16T3
policy concerns about the financial burden of imposing the costs

of gutter renovation or accident prevention upon all homeowners

in the county.

     We   agree   that    summary   judgment   was   properly   granted   in

defendants' favor.       Preliminarily, we part company with the trial

court and conclude that the presence of refrozen precipitation on

the sidewalk in this case was not entirely the result of "natural"

forces.   As the Supreme Court recognized long ago in Gellenthin

v. J. & D., Inc., 
38 N.J. 341, 352-53 (1962), water discharged

onto a public sidewalk from the rain gutters or other conduits of

a defendant's building comprises an artificial, not a natural

condition.3   Such a drainage system is a "structure erected upon

land," and, as such, "a non-natural or artificial condition . . .

irrespective of whether [it is] harmful [itself] or become[s] so

only because of the subsequent operation of natural forces."

Restatement (Second) of Torts § 363 cmt. b (Am. Law Inst. 1965).4


3
  We reject defendants' contention that this portion of the
Gellenthin opinion is inapplicable because the defendant in that
case was a commercial landowner.     The analytic concept of a
artificial-versus-natural condition does not hinge on the status
of the defendant property-owner.
4
  We note our Supreme Court has not adopted to date the revised
liability tests for premises liability that are set forth in the
superseding Restatement (Third) of Torts: Liability for Physical
and Emotional Harm (Am. Law Inst. 2012), which arguably might call
for a different result in this case.      We neither endorse nor
disapprove of those alternative tests.

                                      7                            A-1264-16T3
See also Deberjeois v. Schneider, 
254 N.J. Super. 694, 700 (Law

Div.   1991)   (quoting     and   applying      these    principles    from    the

Restatement (Second) to recognize the potential tort liability of

a landowner who plants a tree close to a public sidewalk, which

thereafter becomes buckled due to the growth of the roots of that

tree), aff'd, 
260 N.J. Super. 518-19 (App. Div. 1992).                         The

installation     and    maintenance        of   the     drainage    systems     on

defendants' homes in this case is an artificial condition, even

though water naturally produced by rain or snow flows through

those man-made devices.

       Nevertheless, there are no facts contained in this record

that could reasonably support plaintiff's theory that defendants

are liable in the circumstances presented.               As the Supreme Court

reiterated in Luchejko, 
207 N.J. at 210, residential homeowners

in New Jersey generally have no duty under tort law to remove snow

and ice from abutting public sidewalks.                 The exception to that

sidewalk immunity for residential owners is where the owners

"create or exacerbate a dangerous sidewalk condition."                 Ibid.

       Here,   there   is   no    competent     proof    in   the   record    that

defendants "created" or "exacerbated" a dangerous condition.                    To

the contrary, they endeavored to abate that hazard by shoveling

and treating the sidewalk area after the recent storms.                Although

plaintiff's expert contends that the direct discharge of water

                                       8                                 A-1264-16T3
from   defendants'    gutters       and    downspouts    was   "conducive"       to

transport stormwater and snowmelt towards the public sidewalk, he

does not opine that those drainage systems created or worsened the

condition of the sidewalk – beyond the hazard that would have

existed if defendants had simply done nothing.                 That is exactly

the vital component of liability that is required under Foley and

Luchejko, and which is notably missing here.

       Plaintiff   argues    that    the      drainage   systems   here    caused

refrozen snowmelt and rain water to "concentrate" in a specific

area of the sidewalk.       However, that theory is not espoused within

her expert's report or supported by competent, non-speculative

evidence.

       Further, plaintiff's expert fails to identify where else the

gutters and downspouts could have safely directed rain water and

snowmelt from the rooftops of these city row houses.               Plaintiff's

counsel acknowledged at oral argument that it would have been

dangerous to remove the gutters and downspouts and allow water to

fall indiscriminately from the edges of the roof to the whole

perimeter of the houses, including by the doorways.                There is no

evidence of any nearby grass or some other safer place to channel

the rooftop water.      Nor is there evidence that the municipality

had underground pipes that could have connected to defendants'

downspouts.

                                          9                               A-1264-16T3
     Ultimately, regardless of whether principles of sidewalk

immunity   apply   here,   negligence    is    fundamentally     based   upon

concepts of reasonable care.          See, e.g., Aiello v. Muhlenberg

Reg'l Med. Ctr., 
159 N.J. 618, 632 (1999); Weinberg v. Dinger, 
106 N.J. 469, 484 (1987); see also Model Jury Charges (Civil), 5.10A,

"Negligence and Ordinary Care – General" (approved before 1984).

Even viewing the record in a light most favorable to plaintiff,

we fail to see how defendants could have more reasonably utilized

their   drainage   systems,   given   the     constraints   of   their   city

dwellings.

     Affirmed.




                                  10                                 A-1264-16T3