A Capehart Scatchard Blog

Homeowners Found Not Liable for Slip and Fall on Ice on Adjoining Public Sidewalk Due to a Refreeze of Water From Homes’ Downspouts

By on January 5, 2018 in Liability with 0 Comments

Plaintiff Rosa Perez slipped and fell on a public sidewalk in Harrison, New Jersey while walking in front of the row-homes of defendants Joseph and Jane Bator and Jose and Rosalyne Parraguez. Both homes had rooftop gutters and downspouts that channeled rain water and snowmelt into the common alleyway between the two homes and spilled water directly onto the public sidewalk. In Perez v. Bator, 2017 N.J. Super. Unpub. LEXIS 3118 (App. Div. Dec. 19, 2017), the plaintiff contended that these residential homeowners should be liable for her injuries due to the downspouts of their homes discharging water onto the public sidewalk.

Plaintiff had been walking on the public sidewalk with her grandchild when defendant Rosalyn Parraguez was outside, attempting to remove snow and ice from the sidewalk in front of the Bators’ home. It had snowed and rained the previous days and, at the time of the plaintiff’s fall, the temperature was below freezing. The sidewalk was icy due to melted snow and accumulated water, which had frozen or refrozen on the sidewalk.

Defendant Parraguez yelled out to warn plaintiff that the sidewalk was icy and slippery. Apparently, plaintiff did not hear the warning and she slipped on the ice, injuring herself. The location where she fell was near the alleyway, which was between the residences of the two defendants.

Plaintiff retained a liability expert who opined that the residences’ roof downspouts’ discharge of stormwater or snowmelt onto the concrete sidewalk was “an inherent defect of both houses.” Due to the discharge and the slope of the concrete sidewalk toward the curbline, the expert opined that such condition caused stormwater or snowmelt to be transported to the subject area and be subject to freezing, which was a foreseeable hazardous and dangerous condition that defendants knew before the plaintiff’s accident.

The trial court granted summary judgment to the defendants and this appeal ensued. The Appellate Division upheld the lower court’s decision, but not for entirely the same reasons.

The trial court relied upon Foley v. Urich, 50 N.J. 426 (1967), which found that residential homeowners had no liability for the slippery condition of a public sidewalk created by melting and refreezing of snow that the homeowners had cleared away but thereafter remelted onto the sidewalk. The rationale was that the homeowners had no duty to take affirmative steps to remove snow and ice from the sidewalk and piling it onto the adjacent lawn created no new element of danger beyond natural forces.

The plaintiff here tried to distinguish Foley by arguing that the “artificial” role of the defendants’ gutters and downspouts in channeling water onto the sidewalk created, or at least worsened, the natural conditions of the sidewalk. While homeowners are immune from tort liability as to the removal of snow and ice from the sidewalk, there is an exception where the owners “create or exacerbate a dangerous sidewalk condition.”

The Appellate Division found that “the presence of refrozen precipitation on the sidewalk in this case was not entirely the result of ‘natural’ forces.” Water discharged onto a public sidewalk from rain gutters of a building come from a drainage system that is a structure erected upon land and, as such, is an artificial condition. Thus, the Court held that the drainage systems on the defendants’ homes was an artificial condition, even though water naturally produced by rain or snow flows through these devices.

Nevertheless, the Court found that the defendants were not liable under the circumstances. Here, there was no proof that the defendants “created” or “exacerbated” a dangerous condition. In fact, they tried to abate the hazard by shoveling and treating the sidewalk area after the recent storm. Plaintiff’s expert did not opine that the defendants’ drainage systems created or worsened the condition of the sidewalk, beyond the hazard that would have existed had the defendants simply done nothing.

Further, the Appellate Division stated that the plaintiff’s expert failed to identify where else the gutters and downspouts “could have safely directed rain water and snowmelt from the rooftops of these city row homes.” 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 house. The Court pointed out that there was no evidence of any nearby grass or some safer place to direct the water or any municipal underground pipes. Finally, just based upon principles of the concept of reasonable care, the Court failed to see how defendants could have more reasonably utilized their drainage systems, given the city constraints.



About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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