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Alexander Khutorsky & Laura Khutorsky, Husband and Wife v. Macy's

January 16, 2013

ALEXANDER KHUTORSKY & LAURA KHUTORSKY, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
MACY'S, INC. AND BLOOMINGDALE'S, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2696-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2012

Before Judges Lihotz and Ostrer.

Plaintiffs Alexander Khutorsky and his wife appeal from the trial court's grant of summary judgment to defendant, Bloomingdale's, Inc.,*fn1 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.

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 ...


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