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

Witt & Tani, TCPI 4. Negligence Standard
5. Neighbors and strangers. Would Judge Coxe’s deference to the custom of the industry be
as warranted if the claimants had been strangers rather than the barge and cargo owners? For
example, what if the claimants were not the barges and cargo owners, but rather a third-party
vessel damaged by the tug in the storm? Or what about a coastal property owner suffering
damage if the tug or its barges were cast upon land in the storm? The parties to tug and barge
contracts may have very good information about the risks of storms and the costs and benefits of
radios. But do they have good reason—absent tort liability—for considering the interests of such
third parties?
6. The odd thing about Hand’s opinion is that he refuses to defer to the industry practice, as
he construes it, even though there were contracts among all the relevant parties. Why not defer to
custom in such an instance? How can Judge Hand be so certain that he is better positioned than
tugs and barges and cargo owners to know what is good for them? Of course, even where there
are contractual relations between the relevant parties, deference to the customary practice as a
governing term in that relation may not be warranted. For example, what if the parties have
asymmetric information about the risks in question? Customs and practices in a particular field
may not reflect the implicit contract terms that are best for everyone involved. Consider, for
example, the next case, Trimarco v. Klein:
Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1982)
[Plaintiff Vincent N. Trimarco recovered a judgment of $240,000 for personal injuries
suffered when he fell through a glass door enclosing the bathtub in the apartment plaintiff rented
in defendant’s building. The Court of Appeals summarized the following as facts a reasonable
trier of fact could have found:
“[A]ccording to the trial testimony, at the time of the incident [,] plaintiff . . . was in the
process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence
was sudden and unexpected and the injuries he received from the lacerating glass most severe.
“The door, which turned out to have been made of ordinary glass variously estimated as
one sixteenth to one quarter of an inch in thickness, . . . presented no different appearance to the
plaintiff . . . than did tempered safety glass, which [plaintiff] assumed it to be. Nor was there any
suggestion that defendants ever brought its true nature to their attention.
“. . . [S]ince at least the early 1950’s, a practice of using shatterproof glazing materials for
bathroom enclosures had come into common use, so that by 1976 the glass door here no longer
conformed to accepted safety standards. . . . [D]efendants’ managing agent, who long had
enjoyed extensive familiarity with the management of multiple dwelling units in the New York
City area, [further testified] that, since at least 1965, it was customary for landlords who had
occasion to install glass for shower enclosures, whether to replace broken glass or to comply with
the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass.”
The Appellate Division reversed plaintiff’s jury verdict and dismissed the complaint,
ruling that even “assuming that there existed a custom and usage at the time to substitute
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