Trimarco v. Klein

• Decision Date: 09 July 1981
• Citation: 82 A.D.2d 20,441 N.Y.S.2d 62
• Parties: Vincent N. TRIMARCO and Mary Trimarco, Plaintiffs-Respondents-Appellants, v. Irving KLEIN, Julius Hoffman, Michael Hoffman, Marie Dario and the Estate of Pasquale Dario, individually and as co-partners, d/b/a Glenbriar Company, Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 62

441 N.Y.S.2d 62

82 A.D.2d 20

Vincent N. TRIMARCO and Mary Trimarco Plaintiffs-Respondents-Appellants, v. Irving KLEIN, Julius Hoffman, Michael Hoffman, Marie Dario and the Estate of Pasquale Dario, individually and as co-partners, d/b/a Glenbriar Company Defendants-Appellants-Respondents.

Supreme Court, Appellate Division First Department.

July 9, 1981.

Thomas R. Newman, New York City, of counsel (Louis G. Adolfsen, New York City, with him on the brief; Cardo & Sforza by Toberoff & Broome, New York City, attorneys), for plaintiffs-respondents-appellants.

Norman H. Dachs, Mineola, of counsel (Shayne, Dachs, Stanisci & Harwood, Mineola, attorneys), for defendants-appellants-respondents.

Before BIRNS, J. P., and SANDLER, SULLIVAN, FEIN and LYNCH, JJ.

PER CURIAM:

In this personal injury action in which plaintiff's forearm and side were severely gashed during the night of July 10, 1976, when the untempered glass door of his bathtub enclosure shattered, the parties cross-appeal from a judgment entered May 5, 1980, Supreme Court, Bronx County, in favor of plaintiff and against defendant in the sum of $240,656. The judgment was entered upon a jury verdict (after trial before Robert C. Williams, J. and a jury) which found plaintiff's damages to be $400,000, but also found that he was 40% negligent and defendant 60% negligent and thus allocated their award accordingly.

Plaintiff, a tenant under a lease in an apartment building erected in 1953, brought suit against his landlord upon the theory that in maintaining the building the landlord was negligent in permitting the apartment bath to be enclosed by sliding glass panels, a condition which the landlord should have known was inherently dangerous to the tenants, particularly including the plaintiff.

Plaintiff maintains that the landlord should be held liable for his injuries. In brief, he claims that the continued use of glass in the shower panel was negligence on the landlord's part, and that the shattering glass was the proximate cause of plaintiff's injuries.

It was plaintiff's testimony and his sole claim during trial, that he had merely attempted to slide the panel when the glass suddenly disintegrated. There was never an indication that the panel was defective or the glass, which was one-quarter inch thick, was loose or in danger of breaking. The record showed that the glass in question was able to withstand a force of 80 lbs. per square inch without sacrificing its integrity. In this respect, we note that despite an entry in the hospital record that plaintiff fell while in the bathtub and his arm shattered the glass panel, plaintiff insisted at the trial that that was not the manner in which the accident occurred, and that he did not in any degree contribute to the circumstances which caused his injuries.

Although the plaintiff testified that he in no way contributed to the accident, the jury determined that the verdict against the landlord should be reduced by 40%, thus attributing to the plaintiff failure to a substantial degree to use due care upon leaving the bathtub. This finding in effect is a rejection of the sole claim of plaintiff that the accident occurred without any fault on his part, a finding which is consistent with that portion of the hospital record to which we have earlier referred.

The proof at trial raises this issue: In installing the glass shower panel and permitting it to remain in plaintiff's bath, did defendant fail in any duty it owed to the plaintiff? Plaintiff argues that although the glass panel installation was acceptable and proper when the apartment building was constructed, there was information available to builders and property owners prior to the date of the accident which highlighted the danger to apartment house tenants of the continued use of such enclosure (p.1 of booklet of the United States Health Department entitled "Glass Door Injuries & Their Control" and booklet of U.S. Consumer Product Safety Commission, Bureau of Epidemiology, Washington, D.C., Nov. 1974, entitled "Hazard Analysis--Injuries Involving Architectural Glass"); that as a result there devolved upon builders and owners at that time a duty to protect tenants, at least to the extent of replacing previously installed glass enclosures with safety glass.

In an effort to bolster this theory, plaintiff availed himself of "expert" testimony to establish that there existed a custom and usage in the community among builders and property owners to substitute shatterproof glass or safety glass for glass panels when used in connection with bathroom showers because of the safety factor involved.

Indeed, custom and usage is a test of negligence which may be considered by a jury. Such evidence may have relevance in view of all the circumstances of a particular case (Saglimbeni v. West End Brewing Co., 274 A.D. 201, 80 N.Y.S.2d 635, affd. 298 N.Y. 875, 84 N.E.2d 648). However, "one is not obliged to use the best methods, or to have the best equipment or the safest place, but only such as are reasonably safe and appropriate." (41 N.Y. Juris., Negligence, § 21, citing Levine v. Russell Blaine Co., 273 N.Y. 386, 7 N.E.2d 673; Garthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643).

Even assuming that there existed a custom and usage at the time to substitute shatterproof glass, more is required to transform custom and usage into a duty. "A custom, to be relevant, must be reasonably brought home to the locality and must be so general, or so well known, that the may be charged with knowledge of it or with negligent ignorance" (Prosser, Law of Torts, p. 137 Putting it in other words, the mere fact that there existed at the time a better way or a safer method of enclosing showers does not mean that there was a duty upon the defendant landlord to effect such a change (Levine v. Blaine, supra; Garthe v. Ruppert, supra). Plaintiff is unable to demonstrate that the failure to follow the "custom and usage" asserted produced a danger which should have been recognized by defendant inasmuch as the record fails to show any accident occurring in the building since its construction which would have made plaintiff's accident foreseeable. (Reilly v. Board of Education, 205 A.D. 431, 200 N.Y.S. 50).

Furthermore, no request was ever made of defendant landlord by plaintiff that the glass panel be replaced, nor did plaintiff ever put defendant landlord on notice that the glass panel was defective.

A glass door is neither a dangerous condition nor a trap or a hidden danger for someone lawfully on the premises and its presence does not require the landlord to give such person a special notice or warning with respect to such a door (Bua v. Fernandez, 15 N.Y.2d 664, 255 N.Y.S.2d 877, 204 N.E.2d 207).

Plaintiff introduced into evidence, over defendant's objection, a statute enacted in 1973, requiring shatterproof glass to be used in bathroom shower installations and other "hazardous locations" (General Business Law §§ 389-m and 389-o). ^* This evidence was not received upon any contention that the statute was violated, but as the Trial Court stated: "It is received to permit you, the jury, to consider it along with all of the other evidence in this case, as a standard by which you may measure the conduct of the defendants." (Emphasis supplied).

There can be no doubt that the receipt of this legislation in evidence, despite the avowed purpose for which it was introduced was prejudicial to the defendant (Jokelson v. Allied Stores, 31 A.D.2d 200, 295 N.Y.S.2d 730, resettlement denied 31 A.D.2d 806, 298 N.Y.S.2d 57). The statute was not designed to have retroactive effect. It did not require shatterproof glass replacement in existing shower enclosures containing ordinary glass and, therefore, had no relevance to the issues in the case. Were we not of the opinion that there is no case proved against defendant as a matter of law, we would agree with Justice Fein that the receipt of this legislation was so prejudicial as to warrant a reversal and a new trial.

It is claimed that the landlord's installation and maintenance of the glass panel was the proximate cause of the accident. Installation and maintenance are not denied by defendant. What is challenged is plaintiff's claim that the glass panel, without any contributing act on plaintiff's part, suddenly disintegrated while plaintiff was in the shower and thus the breaking glass caused plaintiff's injury.

As noted, the record is barren of proof of any defect in the glass or that the glass used in the fashion described herein possessed such lack of tensile strength as to disintegrate after lengthy use. It is more than likely that the glass was caused to shatter by some act of plaintiff, perhaps indeed by falling in the bathtub as the hospital record reflects, and as the jury found, rather than that the glass, without the application of excessive force, shattered and caused plaintiff's injury.

Plaintiff also seeks recourse under the Multiple Dwelling Law. Section 78 provides (as far as pertinent here): "(1) Every multiple dwelling, including its roof or roofs, and every part thereof, and the lot upon which it is situate shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section...."

We are unable to find within that section of the law a duty which required the landlord to effect the substitution of safety glass for the glass originally placed in the sliding bath panels at the time the building was constructed.

An action by a tenant against a landlord for personal injuries sustained as a result of a defective condition of premises cannot be maintained unless it is shown that the landlord had actual or constructive notice of the defective condition of the premises (Costagliola v. Home Owners' Loan Corp., 35 F.Supp. 930, 931-932). Notice of the alleged defect is essential (Becker v. Manufacturers Trust Co., 262 App.Div. 525, 30 N.Y.S.2d 542, rearg. denied 263 App.Div. 810, 32...