When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care, 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.
A tenant of a multiple dwelling, was severely injured in July, 1976, after the glass enclosure door of his bathtub shattered while he was in the process of sliding the door open so that he could exit the tub. He filed suit against his landlord. The door, made out of ordinary glass, concededly would have presented no different appearance to the tenant and his wife than did tempered safety glass, which their testimony shows they assumed it to be. At the trial, evidence was introduced showing that the use of shatterproof glazing materials for bathroom enclosures had come into common use since the early 1950's, so that by 1976 the glass door here no longer conformed to accepted safety standards. Over objection, the trial court also allowed into evidence sections 389-m and 389-o of the General Business Law, requiring that only safety glazing material be used in all bathroom enclosures after their effective date, July 1, 1973. The court cautioned the jury that because the statute did not apply to existing installations, of which the glass in question was one, it was only to be considered along with other proof in the case. There was also testimony from defendant's managing agent that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures to use either plastic or safety glass. The jury ruled in favour of the tenant on the ground that the landlords had a duty to keep the shower door in good repair and that proof of custom and practice regarding the replacement of glass shower doors with safety or tempered glass was admissible. On appeal, however, the Appellate Division reversed, concluding that, assuming there existed a custom and usage at the time to substitute shatterproof glass, unless prior notice of the danger came to the defendants, they were under no duty to replace the glass. The case was appealed to the Court of Appeals of New York.
Was it proper to apply sections 389-m and 389-o of the General Business Law?
The Court held that N.Y. Gen. Bus. Law §§ 389-m and 389-o regarding the installation of safety glazing materials provided protection to tenants for whom shower glazing was installed after the statutory effective date was inadmissible because plaintiff was not in that class. The court ruled that these statutory sections could have prejudiced defendants and reversed the dismissal. The court ordered a new trial confined to the issue of liability and contributory negligence, not damages.