Trimarco v. Klein
COA NY - 1982
- 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.
- Trial court found for P.
- Appellate Division reversed, found for D.
- COA NY reversed, new trial ordered, found for P.
- Can a P offer evidence of custom, common usage and practice in making his case for negligence?
- 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.
- 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.