whether it usually is complied with or not. The court held that in this case P presented more than an abundance of evidence to the jury to reach and sustain the verdict below. Disposition: Order for new trial reversed – judgment in favor of P. Notes: Custom and usage is good evidence of what ought to be done but it must still be reconciled with the reasonable person standard. Trimarco v. Klein COA NY - 1982 Facts: P was a tenant and D was his landlord. P was getting out of the tub when the glass shower door broke and injured him. P did not know and was not made aware that the door used was made out of ordinary glass and not tempered glass. P sued D for damages. P showed at trial that there was evidence of custom and usage to show that ordinary glass doors no longer conformed to accepted safety standards and that they were considered hazardous in showers. Procedural History: Trial court found for P. Appellate Division reversed, found for D. COA NY reversed, new trial ordered, found for P. Issues: Can a P offer evidence of custom, common usage and practice in making his case for negligence? Holding/Rule: A P may offer evidence of custom, common usage and practice in making his case for negligence, but such evidence is not binding since the reasonable person standard is the standard used.
Reasoning: Evidence of custom and usage may be used to show that person may have fallen below the reasonable standard of care. This is a jury issue; the jury must weigh the usage evidence and the reasonable person standard and decide if the D is negligent. The trial court had enough evidence to send it to the jury and instructed the jury correctly that it could consider custom in making its decision. Evidence of usage and custom is pretty potent stuff. Trimarco v. Klein Court of Appeals of New York, 1982. 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52. Prosser, pp. 148-151 Facts: A bathtub’s glass door shattered and hurt the plaintiff. The defendant was the landlord. The plaintiff sued for negligence, alleging that it was customary to use shatterproof glass or plastic and that the landlord should have switched the glass in the door. The trial court awarded damages to the plaintiff, and the defendant appealed. The complaint was dismissed by the intermediate appellate court, and the plaintiff appealed to the Court of Appeals of New York. Issue: Did the landlord have a legal duty to change the glass? Rule: An “accepted practice” can be shown to be a “legal duty”. Analysis: Conclusion: The court ordered a new trial. Facts : P a tenant and D his landlord. P was injured while he was taking a shower and the glass shower door shattered. P sued D for negligently not installing shatterproof glass shower door. P introduced evidence showing that it was common practice among landlords to install such doors in the apartments.
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