Trimarco v. Klein

Citation56 N.Y.2d 98,436 N.E.2d 502,451 N.Y.S.2d 52
Parties, 436 N.E.2d 502 Vincent N. TRIMARCO et al., Appellants, v. Irving KLEIN et al., Individually and as Copartners Doing Business as Glenbriar Company, Respondents.
Decision Date20 May 1982
CourtNew York Court of Appeals
Thomas R. Newman, L. Kevin Sheridan and Louis G. Adolfsen, New York City, for appellants
OPINION OF THE COURT

FUCHSBERG, Judge.

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.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff's injuries to a "fall through his bathroom glass door". Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence. 1

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950's, a practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in "hazardous locations", including "bathtub enclosures". 2 Over objection, the trial court also allowed in sections 389-m and 389-o of New York's General Business Law, which, enacted in 1972 though effective only as of July 1, 1973, required, on pain of criminal sanctions, that only "safety glazing material" be used in all bathroom enclosures after the effective date; 3 however, the court carefully cautioned the jury that, because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered "along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants". And, on examination of the defendants' managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff's counsel elicited agreement that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with "some material such as plastic or safety glass".

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, "assuming that there existed a custom and usage at the time to substitute shatterproof glass" and that this was a "better way or a safer method of enclosing showers" (82 A.D.2d, p. 23, 441 N.Y.S.2d 62), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law. 4 To this the court added that, were it not dismissing, it would have ordered a new trial because, in its view, the admission of the afore-mentioned sections of the General Business Law, even with the reservations attached by the Trial Judge, constituted reversible error.

In a dissenting opinion, Justice Leonard Sandler disagreed on both counts; on the underlying liability issue, he found that the plaintiff had presented a clear question of fact for the jury and, on the evidentiary one stemming from the submission of the General Business Law, after noting that a careful marshaling of authorities had persuaded him that it was a "close question" (82 A.D.2d, p. 28, 441 N.Y.S.2d 62), he opined that whether the statute should have gone to the jury was properly within the Trial Judge's discretion. Concurring in part and dissenting in part, Justice Arnold Fein writing separately, took the position that, while there indeed was "ample" evidence of custom and usage to support the plaintiff's verdict, a new trial was required since the advice to the jury of the contents of the statute, no matter how cushioned by qualifications, "could only be misleading" (82 A.D.2d, p. 30, 441 N.Y.S.2d 62).

For the reasons which follow, we agree with Justice Sandler and Justice Fein that plaintiff established a prima facie case. However, we would not disturb the conclusion of Justice Fein and the majority that the General Business Law did not belong in the case.

Our analysis may well begin by rejecting defendants' contention that the shower door was not within the compass of section 78 of the Multiple Dwelling Law. From early on, it was understood that this statute was enacted in recognition of the reality that occupants of tenements in apartment houses, notwithstanding their control of the rented premises, as a practical matter looked to their landlords for the safe maintenance of the tenanted quarters as well. The result was that, if responsibility for keeping "every part thereof * * * in good repair" was not placed on the landlords, defects would remain unremedied (Multiple Dwelling Law, § 78; see Altz v. Leiberson, 233 NY 16, 19, 134 N.E. 703). Therefore, though early cases may have chosen to give the statutory phrase "every part" a restrictive connotation (e.g., Kitchen v. Landy, 215 App.Div. 586, 214 N.Y.S. 241 and Boylan v. 1986 Grand Ave. Realty Corp., 169 Misc. 881, 8 N.Y.S.2d 200 later cases made clear that the remedial reach of the legislation mandated a more expansive interpretation under which fixtures or appliances furnished by the landlord were found to be within the statutory intendment (Herring v. Slattery & Bros., 266 App.Div. 719, 41 N.Y.S.2d 921, affd. 291 N.Y. 794, 53 N.E.2d 368 Rosen v. 2070 Davidson Ave. Corp., 246 App.Div. 588, 284 N.Y.S. 802, mot. for lv. to app. den. 270 N.Y. 676 [defective clothes drier]).

Which brings us to the well-recognized and pragmatic proposition that when "certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that has fallen below the required standard" (Garthe v. Ruppert, 264 N.Y. 290, 296, 190 N.E. 643). Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

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 "formulatthe 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...

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