## Facts

- Vincent Trimarco rented an apartment in a multi-unit building owned and managed by the defendants.
- In July 1976, as Trimarco slid open the glass bathtub enclosure door to exit the tub, the door suddenly shattered, causing severe lacerations.
- The door was made of ordinary (non-tempered) glass; it appeared similar to safety glass, and Trimarco and his wife assumed it was safety glass without any contrary disclosure by defendants.
- Medical records included an entry attributing the injuries to a fall through the glass door; the jury found Trimarco 40% contributorily negligent.
- Trimarco introduced expert and other evidence that shatterproof glazing for bathtub enclosures had been commonly used since at least the early 1950s and that, by 1976, ordinary glass in such locations no longer met accepted safety practice.
- Safety and consumer organizations and federal publications warned of the danger of plain glass in hazardous locations, including bathtub enclosures.
- The managing agent testified that, since about 1965, it had been customary in the building to replace shower doors with plastic or safety glass when repairs or replacements were made.
- The trial court admitted New York General Business Law §§ 389-m and 389-o (effective July 1, 1973), requiring safety glazing for certain new installations, instructing that the statutes were not directly applicable to existing installations but could be considered as a benchmark.

## Issues

1. Whether evidence of industry and building custom regarding shatterproof glazing in bathtub enclosures was sufficient to establish a prima facie negligence case for the jury.
2. Whether conformity with, or departure from, customary practice is admissible and how it bears on the reasonable-care standard.
3. Whether admitting nonretroactive safety-glazing statutes as evidence of a standard of conduct was error requiring a new trial.

## Decision

- The Court of Appeals held that Trimarco’s proof of custom and usage was sufficient to establish a prima facie case of negligence and should be submitted to a jury.
- The court rejected the view that the landlord’s duty depended on prior similar accidents or tenant complaints as a prerequisite to liability.
- The court held that admitting General Business Law §§ 389-m and 389-o was erroneous and prejudicial because the statutes did not apply to the preexisting installation and risked jury confusion.
- The court reversed the Appellate Division’s dismissal and ordered a new trial.

## Legal Principles

- Evidence of customary practice may be used by the factfinder to assess whether the defendant exercised reasonable care, but custom does not set the standard of care as a matter of law.
- A defendant’s compliance with custom is relevant to due care, and a defendant’s departure from custom is relevant to negligence; neither is conclusive.
- A plaintiff may establish a prima facie negligence case by showing a widely adopted, feasible safety practice and circumstances permitting an inference that failure to adopt it was unreasonable.
- Safety statutes that do not govern the conduct at issue (including nonretroactive requirements) may create unfair prejudice and confusion if presented as a benchmark for liability, even with limiting instructions, where jurors may treat them as directly binding.

## Conclusion

The court held that evidence of widespread safety custom regarding shatterproof bathtub enclosures permitted a jury to find the landlord negligent without proof of prior similar accidents, but it ordered a new trial because admission of nonretroactive safety-glazing statutes likely prejudiced the verdict.


Trimarco v. Klein, 56 N.Y.2d 98 (N.Y. 1982)