Friday, April 3, 2009

Customary Duty...

...Is when you go at the same time every morning.

Jokes.

You can establish a skilled worker's duty by establishing that a certain action is customary within a field. This is called a customary duty. This is very similar to establishing a skilled professional's duty by establishing standard practice within a field.

Trimarco v. Klein (1982, New York)

Facts
Trimarco was an apartment tenant, and Klein was his landlord. The property was over fifty years old, and the bathroom used standard glass. Trimarco injured himself after breaking the glass. Trimarco then sued Klein for negligence, alleging that he should have installed shatterproof glass.

Question
Was there a duty to install shatterproof glass?

Holding
Yes

Reasoning
The plaintiff presented professionals, including the defendants manager, to testify that installing shatterproof glass was "customary" since the 1950s.

And the winner is…
Trimarco, but only in the sense that he satisfied the burden of production. The case was actually sent back to the trial level due to a technicality unrelated to customary duty.

Customary Duties and the Reasonable Person
It’s generally a solid shortcut, but it doesn't always work. Establishing a customary duty is powerful testimony for what a reasonable person would do. However, you can still be negligent even if you followed customary duty. And on the flipside, ignoring customary duty can still be not negligence. Or, as I like to say, posligence.

summarized from Life of a Law Student

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