## Facts

- Jack Frummer, a New York resident, stayed at the London Hilton in June 1963.
- On June 12, 1963, after showering in his bathtub, Frummer slipped and suffered serious injuries.
- Frummer sued Hilton-related defendants in New York, alleging negligence for: (1) failing to provide a rubber bath mat after he requested one, (2) failing to provide grab bars near the shower, and (3) unsafe tub design/construction that increased slip risk.
- Defendants asserted the hotel exercised reasonable care and that Frummer’s own conduct caused the accident.
- At trial, the jury was instructed under New York law, including that any contributory negligence by Frummer would completely bar recovery.
- The jury returned a defense verdict.
- Frummer moved to set aside the verdict and for a new trial, arguing the jury should have been instructed under English law on occupiers’ liability and contributory negligence and that the court improperly excluded photographs showing grab bars installed after the accident.

## Issues

1. Whether the jury instructions on the hotel’s duty of care were consistent with English occupiers’ liability law, including the Occupiers’ Liability Act 1957.
2. Whether the effect of Frummer’s fault should be governed by New York’s contributory negligence rule (complete bar) or England’s comparative negligence rule under the Law Reform (Contributory Negligence) Act 1945.
3. Whether the court erred by excluding photographs depicting post-accident installation of grab bars.

## Decision

- The court held the duty-of-care charge requiring reasonable care for guests was consistent with English law and did not warrant a new trial.
- The court held English law governed loss allocation for contributory fault and required a comparative negligence approach rather than a complete bar.
- Because the jury was instructed under New York’s contributory negligence rule, the verdict was set aside and a new trial was granted.
- The court upheld exclusion of the post-accident grab-bar photographs as improper proof of negligence based on subsequent remedial measures.

## Legal Principles

- In tort cases with foreign elements, the forum may apply foreign substantive law, including foreign rules allocating loss based on plaintiff fault, when the foreign jurisdiction has the stronger interest in that issue.
- Under English law (Law Reform (Contributory Negligence) Act 1945), a plaintiff’s negligence reduces damages in proportion to fault rather than barring recovery.
- The Occupiers’ Liability Act 1957 is satisfied by a reasonable-care standard toward lawful visitors, and an instruction framed in reasonable care may be consistent with that statute.
- Evidence of subsequent remedial measures is generally inadmissible to prove prior negligence because it risks unfair prejudice and hindsight reasoning.
- A court may take judicial notice of foreign law and order a new trial where the jury charge misstated the applicable substantive law.

## Conclusion

The court ordered a new trial because English comparative negligence law governed the effect of plaintiff fault for an injury occurring in England, making the prior New York contributory-negligence instruction erroneous; it otherwise sustained the reasonable-care duty instruction and the exclusion of post-accident remedial evidence.


Frummer v. Hilton Hotels Int'l, Inc. (Frummer II), 304 N.Y.S.2d 335 (Sup. Ct. N.Y. Cnty. 1969)