Levine v. Russell Blaine Co.

New York Court of Appeals · Torts

TortsNegligenceEvidenceCustom and Practicenegligenceforeseeabilitycustomusage

Facts

In a tenement house maintained by the defendant, a tenant used a dumbwaiter operated by a hand rope. According to testimony, the rope was dirty and rough, with stiff bristles or slivers protruding from it. While plaintiff Edna Levine was using the rope, a stiff piece of fiber cut her finger, infection followed, and her arm was amputated. At trial, plaintiffs sought to introduce evidence of a general custom to equip dumbwaiters with ropes that do not develop bristles or splinters, along with expert evidence about rope qualities, but that evidence was excluded.

Issue

Whether the plaintiffs made out a negligence case based on the rough dumbwaiter rope, and, if not, whether the exclusion of evidence of general custom and expert testimony improperly prevented them from supplying proof that the defendant should have foreseen and guarded against the risk.

Rule

General usage or custom may be shown to establish a standard of construction and equipment, and in negligence cases such evidence is competent to show ordinary care or failure to exercise it. But a defendant is not obliged to use the best methods, the best equipment, or the safest place—only equipment that is reasonably safe and appropriate for the business. Thus, proof of custom alone may be insufficient unless combined with evidence showing how the alternative custom bears on a foreseeable risk of injury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a walk-up apartment building in Buffalo, Nora Patel used a hand-operated freight pulley maintained by Lakeshore Court Housing. The pull-cord was coarse, and a protruding fiber pierced her palm, causing a severe infection. At trial, Nora offered testimony that most similar apartment buildings in western New York use coated pull-cords that do not fray in hand use, but the judge excluded the testimony as irrelevant because custom cannot define negligence.

Was the exclusion most likely erroneous?

Explanation. The majority states that general usage or custom may be shown to establish a standard of construction and equipment, and in negligence cases it is competent to show ordinary care or failure to exercise it. The evidence should not be excluded merely because custom is not conclusive. But it also does not establish negligence as a matter of law.