Opinion
DOCKET NO. A-0823-11T1
01-16-2013
ALEXANDER KHUTORSKY & LAURA KHUTORSKY, husband and wife, Plaintiffs-Appellants, v. MACY'S, INC. and BLOOMINGDALE'S, Defendants-Respondents.
Jordan Comet argued the cause for appellants (Comet Law Offices, attorneys; Mr. Comet, on the brief). Harry Steinberg argued the cause for respondents (Lester Schwab Katz & Dwyer, LLP, attorneys; Mr. Steinberg, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2696-10.
Jordan Comet argued the cause for appellants (Comet Law Offices, attorneys; Mr. Comet, on the brief).
Harry Steinberg argued the cause for respondents (Lester Schwab Katz & Dwyer, LLP, attorneys; Mr. Steinberg, on the brief). PER CURIAM
Plaintiffs Alexander Khutorsky and his wife appeal from the trial court's grant of summary judgment to defendant, Bloomingdale's, Inc., dismissing with prejudice their complaint seeking damages arising out of injuries he suffered handling a kitchen knife on display at the Bloomingdale's store in Hackensack.
Although Macy's, Inc. was also named, it was undisputed that Bloomingdale's, Inc. was the only actual defendant.
We discern the following facts from the record, viewed in a light most favorable to plaintiffs as the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Alexander and Laura Khutorsky visited Bloomingdale's to shop for pots and pans. While Ms. Khutorsky talked to a salesperson, Mr. Khutorsky wandered off, and examined some kitchen knives that were placed in a butcher block, which in turn was located in an unlocked, glass-faced cabinet. Bloomingdale's typically displayed some of its knives in open displays in its housewares department, and kept other, higher value knives, in locked displays to reduce theft. Regardless of whether a knife was locked or openly displayed, customers were permitted to examine and handle it.
As he had done "hundreds if not thousands of times" before, Mr. Khutorsky removed a knife from the wooden block. He examined it for "a few seconds," then slid it back into the block. Mr. Khutorsky then removed a second knife. He did not get a good grip on the handle. In his deposition, he described what happened next, in this way:
So that knife I never really got a firm handle on it and so as I'm pulling it out the next thing I know is that it is falling . . . and at that point I think it's going to cut me. So there is a real chance here that I would get hurt and instinctively I take my right hand to bat it away from me, because it is falling towards my upper thigh and so I instinctively try to bat it away from me. That's how I got cut.Mr. Khutorsky cut two tendons, and required surgery.
Mr. and Ms. Khutorsky filed suit claiming that his personal injury and their resulting damages were caused by Bloomingdale's' negligence. After a period of discovery, Bloomingdale's moved for summary judgment, which Judge Brian R. Martinotti granted by order on September 2, 2011, having found that Bloomingdale's did not breach a duty of care to Mr. Khutorsky, nor commit an act of negligence that proximately caused his injury.
On appeal, plaintiffs raise the following points for our consideration:
POINT I
The Court Erred in Granting Summary Judgment Because There Are Genuine Issues of Fact as to Whether the Accident was a Result of Defendant's Negligent Conduct.
POINT II
There are Issues of Fact as to the Apportionment of Liability Between the Parties Precluding Summary Judgment.
POINT III
There are Issues of Fact as to The Apportionment of Liability Between the Parties Which Should Have Precluding [sic] Summary Judgment.
We review the trial court's grant of summary judgment de novo, Lapidoth v. Telcordia Tech., Inc., 42 0 N.J. Super. 411, 417 (App. Div. 2011), and apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46, we "consider 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, supra, 142 N.J. at 540. "When the evidence is so one-sided that one party must prevail as a matter of law, . . . the trial court should not hesitate to grant summary judgment." Ibid. (quotation and citation omitted).
Applying these standards, we affirm, substantially for the reasons set forth in Judge Martinotti's well-reasoned opinion. Judge Martinotti noted that while a business proprietor has a duty to its customers to provide reasonably safe premises, it has no duty to warn of dangers that are open, obvious and easily understood. The judge relied on Tighe v. Peterson, 175 N.J. 240 (2002), where the Court affirmed dismissal of a suit by a plaintiff who was injured after diving into the shallow end of a swimming pool about whose depths plaintiff was aware, and Matthew v. University Loft Company, 387 N.J. Super. 349, 356 (App. Div. 2006), where we held the defendant had no duty to warn against the danger of falling from a loft bed it had manufactured, because the risks were "'open and obvious.'"
Judge Martinotti also noted that while proximate cause is usually reserved for a jury, the issue may be decided as a matter of law where reasonable minds could not differ. The court aptly relied on Vega v. Piedilato, 154 N.J. 496 (1998). In Vega, the Court affirmed dismissal of a complaint where a youth suffered injuries attempting to jump over an air shaft on the roof of a building. Id. at 499-500. The Court held that no "fair-minded jury could find that the lack of security measures was the cause of the fall. The cause of the accident and injuries was the plaintiff's unsuccessful effort to leap this divide." Id. at 509.
In view of these principles, Judge Martinotti concluded:
Bloomingdale's cannot be found to have committed any negligence . . . as a matter
of law. Bloomingdale's did not have a duty to lock up or provide a warning regarding the cutlery involved in this accident. "There is certainly no []usual duty to warn [the purchaser] that a knife [or an axe will] cut, a match will take fire, dynamite will explode or a hammer may mash a finger." McWilliams v. Yamaha Motor Corp., 987 F.2d 200[, 202] [(3d Cir.] 1993), [quoting McWilliams v. Yamaha Motor Corp., 780 F. Supp. 251, 257 (D.N.J. 1991), quoting Prosser, Law of Torts § 96 (4th ed. 1971) (additional internal quotation marks omitted)]. . . . While Bloomingdale's has . . . a duty to protect its invitees against known or reasonably discoverable dangers, the threat of cutting one's self with a knife is so pat[]ently obvious that there was no duty to provide a warning or lock up the knives on the display. The public policy argument set forth simply fails.
There cannot be a finding of any negligence because Bloomingdale's conduct was not a proximate cause of the accident. Mr. . . . Khutorsky . . . swiping his hand at a falling knife which fell by his own actions without looking was a proximate cause of this accident. As a result, it is clear that this is not ripe for a jury determination. . . . Since negligence by Bloomingdale's cannot be established as a matter of law, there is no . . . need to go into the inquiry of comparative negligence.
We add only the following brief comment. Plaintiffs argue that apart from the open and obvious danger of a knife, Bloomingdale's breached its duty of care in the manner in which it displayed the knives. We disagree. There was nothing hidden, or inconspicuous about Bloomingdale's display. Thus, plaintiffs misplace reliance on Parks v. Rogers, 176 N.J. 491 (2003), where the Court held a homeowner had a duty to warn an unwary social guest of "a prematurely short bannister" along a deck stairway that the guest descended in darkness. Id. at 494. Plaintiffs also mistakenly rely on Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002), where we held a homeowner was obliged to warn a first-time seventy-five-year-old guest of an unlit sunken foyer into which the guest fell. Id. at 271. Bloomingdale's hid nothing from Mr. Khutorsky. A jury could not reasonably find otherwise, especially because Mr. Khutorsky had already removed and replaced one knife before he handled the one that injured him.
Plaintiffs' remaining arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION