Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
So measured, the case the plaintiff presented . . . was enough to send it to the jury and to
sustain the verdict reached. The expert testimony, [and] the admissions of the defendant’s
manager . . . easily filled that bill. Moreover, it was also for the jury to decide whether, at the
point in time when the accident occurred, the modest cost and ready availability of safety glass
and the dynamics of the growing custom to use it for shower enclosures had transformed what
once may have been considered a reasonably safe part of the apartment into one which, in the
light of later developments, no longer could be so regarded.
Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence
of custom and usage “by others engaged in the same business” in proper perspective, when,
among other things, he told the jury that the issue on which it was received was “the
reasonableness of the defendant’s conduct under all the circumstances.” He also emphasized that
the testimony on this score was not conclusive, not only by saying so but by explaining that “the
mere fact that another person or landlord may have used a better or safer practice does not
establish a standard” and that it was for the jurors “to determine whether or not the evidence in
this case does establish a general custom or practice.”
[Notwithstanding its decision to reverse the Appellate Division, the Court of Appeals
remanded for a new trial on the ground that the trial judge had erroneously omitted evidence of a
non-retroactive statute requiring that newly-installed showers use tempered safety glass.]
Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new
trial in accordance with the opinion herein.
Notes
1. What was the custom in the industry with respect to shower glass? Who instituted the
custom? And who would have been in a position to know about it and guide their conduct
accordingly?
2. Penalty default rules. Professors Ian Ayres and Robert Gertner take issue with deference
to custom, at least under conditions of asymmetric information. Their observation is that
deference to the majoritarian or customary practice will sometimes allow parties with better
information about the risks in question to take advantage of parties who, for lack of information,
have underestimated those risks. Ayres and Gertner therefore contend that the better approach to
filling in missing contract terms is not by inserting the customary rule, but rather by inserting a
rule that disfavors the party with more information. Moving forward, such a rule—which they
call a “penalty default” because it would penalize the party with better information—creates
powerful incentives for the informed party to lay its information on the table so that the less
informed counterparty has the chance to take it into account.
Does the Ayres and Gertner theory of penalty defaults help explain the outcome in
Trimarco? Here is the thought experiment: If the lease between the landlord and the tenant had
stated that the shower glass in the apartment was NOT safety glass, but that the landlord would
replace the glass with new safety glass upon request, would the tenant-plaintiff have won? If you
don’t think that anyone reads leases (note: you should read your leases!), then what if such a
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