56 N.Y.2d 98 (1982).

Plaintiff tenant was injured in 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.  At trial of his lawsuit against Defendant landlord, Plaintiff presented evidence that showed that at least since the 1950s, the practice of using shatterproof glass in bathroom enclosures was common and that by the date of the accident, the glass door on his tub no longer conformed to safety standards.  Defendant’s managing agent admitted that at least since 1965, it was customary for landlords, who had to install glass for shower enclosures, to use safety glass or plastic.

The jury rendered verdict in favor of Plaintiff.  The appellate division reversed, however, after holding that even if there was a custom and usage at the time to substitute for shatterproof glass, there was no common law duty on the Defendant to replace the glass unless prior notice of the danger had come to Defendant either from Plaintiff or by reason of a similar accident in the building.

One of the issue before the court of appeals was whether customary safeguards can be used to establish a standard of care.  The court answered in the affirmative.

The court reasoned that when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care.  Likewise, 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.  The court noted that while customary practice and usage is not universal, but if it is fairly well defined and in the same business a person either has knowledge of it or is negligently ignorant of it.  In addition, the court also noted that even if there is a common practice or usage, the jury still has to determine that it is reasonable before it is a conclusive or compelling test for negligence.

In the instant case, the court determined that Plaintiff had presented enough evidence to sustain the verdict that the jury reached.  However, the court ordered a new trial because the trial judge had erroneously allowed into evidence statutes requiring the use of shatterproof glass, which statutes protected a class of tenants within which plaintiff did not fall.

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