Duncan v. Corbetta

178 A.D.2d 459, 577 N.Y.S.2d 129 (App. Div. 1991)

 

RULE:

Proof of a general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds.

FACTS:

Plaintiff was injured when he began to descend a wooden exterior stairway at defendant's residence and the top step collapsed. Although the trial court erred by precluding plaintiff's expert from testifying that it was common practice to use pressure-treated lumber in the construction of such stairways, the court affirmed the dismissal of the personal injury action. No significant prejudice resulted from the error. Additionally, plaintiff failed to establish that defendant had a role in the design or construction of the stairway. Plaintiff's expert was permitted to testify that the type of wood used required special maintenance.

ISSUE:

Did the trial court properly decline to charge res ipsa loquitur?

ANSWER:

Yes.

CONCLUSION:

The plaintiffs failed to establish that the defendant had a role in the design or construction of the stairway. Thus, the standard of care in construction was irrelevant to an assessment of the defendant's negligence under the facts of this case. Insofar as the materials used may have been relevant to an assessment of the defendant's duty to maintain or repair the stairs, the plaintiffs' expert was permitted to testify that the type of wood used required special maintenance.

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