Trimarco v. Klein-“The Shatterproof Shower Glass Case”

By:- Rishi Saraf

Citation:-                                    Trimarco v Klein, 436 NE 2d 502

Appellant:-                                 Klein, a landlord

Respondent:-                            Vincent M. Trimarco

Year:-                                          1982

Court:-                                        New York Court of Appeals

Judges:-                                     Cooke CJ , Fuchsberg, Jasen, Gabrielli, Jones, Wachtler & Meyer

Country:-                                    United States

State:-                                         New York

Area of law:-                              Standard of care

Issue:-                            Is violation of an accepted standard or custom enough to create negligence?


Sometimes the most ordinary activities can have far-reaching legal consequences. Vincent Trimarco had no clue when he took a shower one summer day in 1976 that he was going to suffer a gory injury that would become the focus of a major tort lawsuit. Let’s take a look at what occurred in Trimarco vs. Klein. Trimarco v. Klein Court of Appeals of New York, 56 N.Y.2d 98, 436 N.E.2d 502 is a 1982 decision of the New York Court of Appeals dealing with the use of custom in assessing whether a person acted fairly given the circumstances. It is often covered in beginning tort law courses in the United States.

Background of the case:-

Trimarco lives in a New York City apartment. A sliding glass door contained a tub and shower combo was fitted in the bathroom. The door was composed of regular glass rather than shatterproof safety glass. One day when Trimarco was exiting the shower in July 1976, the door shattered, badly lacerating his arm and side.

Trimarco’s apartment was constructed in 1953. While the glass door was considered secure at the time, by 1976, it was no longer so.

In the early 1950s, the construction and housing sectors began to utilise shatterproof glass in bath enclosures. Consumer organisations and government authorities had warned for two decades, prior to Trimarco’s disaster, that installing common glass around bathtubs was harmful. Landlords in New York had been employing shatterproof bath enclosures since at least 1965. Beginning in 1973, it was illegal in New York to use ordinary glass in newly constructed bathroom enclosures. As a result, by 1976, it was normal practice/custom to utilize shatterproof material in bathtub enclosures.

Facts of the case

Trimarco decided to appeal in the trial court to claim damages for the injury suffered because of the use of ordinary glass by Klein (his landlord) as a negligent act. Klein, according to Trimarco, was irresponsible in neglecting to use shatterproof material for the bath enclosure which was an ordinary custom to do so. He was awarded $240,000 at trial. He won on the grounds that the standard at the time was to have shatterproof glass in showers, and so his landlord was accountable since he did not adhere to this well-accepted custom.

 Again there was a turn in the case when Klein filed an appeal in the appellate division against the trial court verdict claiming that the evidence for carelessness was insufficient and that the jury was misinformed. Finally, The New York Supreme Court’s Appellate Division overturned, ruling that Klein could not be held accountable unless he had prior warning that the glass was unsafe and dismissed the appeal. Now, Trimarco filed an appeal with the New York Court of Appeals, which is the state’s highest court.

Issues raised

Is violation of an accepted standard or custom enough to create negligence?

Arguments  of the petetioner

Thomas R. Newman, L. Kevin Sheridan and Louis G. Adolfsen

The counsel appearing from the side of Trimarco initially argued that since Because the plaintiff proved a prima facie case of common-law negligence and the evidence supports the jury’s conclusion that the defendants did not exercise reasonable care, the court below should not have overturned the culpability judgement.; certainly it should not have dismissed the complaint. They relied on a number of cases such as Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Stein v Palisi, 308 NY 293; Havas v Victory Paper Stock Co., 49 NY2d 381; Farrell v Royal Crown Bottling Co., 53 NY2d 619; Smith v Arbaugh’s Rest., 469 F2d 97; Derdiarian v Felix Contr. Corp., 51; Basso v Miller, 40 NY2d 233; Sagorsky v Maylon, 307 NY 584; Cohen v Hallmark Cards, 45 NY2d 493.

Secondly, the counsel argued, in the event, this court finds no common-law negligence, the plaintiff should be permitted in the alternative to recover against defendants for breach of the warranty of habitability or strict liability in tort.  They relied on  Curry v New York City Housing Auth., 77 AD2d 534; Scurti v City of New York, 40 NY2d 433; Part West Mgt. Corp. v Mitchell, 47 NY2d 316; Brownstein v Edison, 103 Misc 2d 316; McBride v 218 E. 70th St. Assoc., 102 Misc 2d 279Segal v Justice Ct. Mut. Housing Coop., 108 Misc 2d 1074; Codling v Paglia, 32 NY2d 330 ; Basso v Miller, 40 NY2d 233; Quinlan v Cecchini, 41 NY2d 686; Kaplan v Coulston, 85 Misc 2d 745.

Evidence was properly received and the jury was properly instructed concerning the relevant statutes. ( Hassan v Stafford, 472 F2d 88; ; Halloran v Virginia Chems., 41 NY2d 386 Curtis v District of Columbia, 363 F2d 973; Edmonds, Inc. v Vojka, 332 F2d 309; Fluor Corp. v Black, 338 F2d 830; Caprara v Chrysler Corp., 52 NY2d 114; Boston & Maine R. R. v Talbert, 360 F2d 286; Letendre v Hartford Acc. & Ind. Co., 21 NY2d 518; Fleury v Edwards, 14 NY2d 334McCallin v Walsh, 64 AD2d 46, 46 NY2d 808; .)

Finally, the counsel argued that the trial court should not have submitted the issue of contributory negligence to the jury. Since there was no proper evidence to support it and, in any event, since the plaintiff’s conduct was not unreasonable or imprudent, he cannot be considered negligent. They relied on many judgments including Wolf v City of New York, 39 NY2d 568;  Nallan v Helmsley-Spear, Inc., 50 NY2d 507 etc.

Arguments by the respondent


The opposite counsel argued that firstly Plaintiff-appellant failed to establish any actionable negligence on the part of defendants as a matter of law. The complaint was properly dismissed. They cited various judgments to prove their point.Collins v Noss, 258 App Div 101; Yeargans v Yeargans, 24 AD2d 280 ; Fuchs v Brody, 282 NY 627Basso v Miller, 40 NY2d 233; Levine v Blaine Co., 273 NY 386; Burger v Fifth Ave. Coach Co., 249 NY 583; Lipner v Levy, 44 AD2d 797; Gustavson v Southern Blvd. R. R. Co., 292 NY 309; Garthe v Ruppert, 264 NY 290  Pulka v Edelman, 40 NY2d 781.

Secondly, the respondent completely denied any other liability; neither the “warranty of habitability” nor the strict liability doctrine is applicable herein. ( Curry v New York City Housing Auth., 77 AD2d 534; Snyder v Moore, 72 AD2d 580.)

The opposing counsel also argued that The court below correctly held that the receipt in evidence of sections 389-m and 389-o of the General Business Law, despite the avowed purpose for which they were introduced, was an error. (Schuster v City of New York, 5 NY2d 75; Loeser v Nathan Hale Gardens, 73 AD2d 187; Siivonen v City of Oneida, 33 AD2d 934; Jokelson v Allied Stores Corp., 31 AD2d 200, 806; Curry v New York City Housing Auth., 77 AD2d 534; Carhart v Relmar Operating Corp., 66 AD2d 680; Hassan v Stafford, 472 F2d 88; Florentine v Church of Our Lady of Mt. Carmel, 340 F2d 239; Lodato v Town of Oyster Bay, 68 AD2d 904 Gallagher v St. Raymond’s R. C. Church, 21 NY2d 554.)  

The opposing counsel argued that the trial court properly submitted the issue of the plaintiff’s contributory negligence to the jury and the Plaintiffs’ counsel’s trial tactics constituted reversible error.; Youngentob v Luongo, 139 Misc 840;  Bassi v City of New York, 7 AD2d 713; Cohon & Co. v Pennsylvania Coal & Coke Corp., 10 AD2d 667; Simpson v Foundation Co., 201 NY 479;  McCabe v Queensboro Farm Prods., 21 AD2d 675; Kohlmann v City of New York, 8 AD2d 598; Bromberg v City of New York, 25 AD2d 885; Williams v Long Is. R. R., 41 AD2d 940;  Cherry Creek Nat. Bank v Fidelity & Cas. Co. of N. Y., 207 App Div 787MacDormand v Auchenpaugh,  29 AD2d 1022.


Cooke CJ and Fuchsberg, Jasen, Gabrielli, Jones, Wachtler, and Meyer

Initially, the trial court relied on the defendant’s argument according to section 78 of the Multiple Dwelling Law or civil law, there existed no duty on the defendant’s side to replace the glass unless prior notice from the plaintiff is given regarding the danger of the current glass which was an error on the trial judges part, the appeal court concluded.

Also, all the judges agreed on the conclusion that sections 389-m and 389-o of the General Business Law would not be applicable in the present case because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered “along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants”.

Secondly, the court said that 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. This is not to be assumed that customary practice and usage need be universal. However, once its existence is credited, a Common practice or usage is still not necessarily a conclusive or even a compelling test of negligence, before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behaviour which adhered to the custom or the unreasonableness of that which did not. After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. Finally, it was held that while custom can be useful in assessing the standard of care, it is not conclusive by itself.

The court reversed the order and granted a new trial because the district court should have excluded Statutory sections regarding the installation of safety glazing materials as evidence because the plaintiff was not a member of the class the statute was enacted to protect.

The court also ordered that the new trial must be confined to the issue of liability and contributory negligence, not damages.


Evidence of custom and use is crucial in determining whether an actor employed reasonable care given the circumstances. Such data continues to suggest that the omitted precaution that culminated in harm was technologically and economically viable, as well as that the harm itself was foreseeable. Custom and usage evidence is not considered negligent in and of itself: the jury or fact-finder must still decide if the custom and usage are reasonable. Thus, custom and usage are simply proof of what needs to be done (often extremely convincing evidence), but such evidence must always be reconciled with the reasonable person standard. Usage and custom are not conclusive proof of negligence.


Trimarco v Klein, 1982 N.Y. LEXIS 3319 /Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502 (1982)

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