USE OF CUSTOM

Trimarco v. Klein 56 N.Y.2d 98 (1982)

https://h2o.law.harvard.edu/cases/325

“After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division, 82 A.D.2d 20, 441 N.Y.S.2d 62, having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case.”

“The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.”

“The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.”

“It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4, 57 N.E. 79 and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v. Blaine Co., 273 N.Y. 386, 389, 7 N.E.2d 673 Put more conceptually, proof of a common practice aids in “formulate the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456-457).”