Moore 1 Roman Law Interpretation of Trimarco v. Klein In Trimarco v. Klein (436 NE 2d 502), a tenant of a multiple dwelling was severely injured after the glass enclosure door of his bathtub shattered while he was in the process of sliding the door open so that he could exit the tub. The plaintiff was the tenant (Trimarco) and they brought suit against the landlord (Klein) with the theory that the landlord was negligent in maintaining the building, permitting the apartment bath to be enclosed by sliding glass panels, a condition which the landlord should have known was dangerous for tenants, including the plaintiff. Though not explicitly part of written safety law, Trimarco presented testimony that shatterproof glass doors had been in common use since the early 1950’s and the glass door did not conform to accepted safety standards. Trimarco won the initial verdict in his favor, being awarded $240,000 at the trial court, Klein then appealed to the New York Appellate division and won, the court saying Klein shouldn’t be liable since he had no prior notice, Trimarco then appealed to the New York court of appeals and won. The jury ruled in favor of the tenant on the ground that the landlords had a legal duty to keep the shower door in good repair and that proof of custom and practice regarding the replacement of glass shower doors with safety or tempered glass was admissible. This case deals with US tort law (negligence), the reasonable person standard (The “reasonable person” is a hypothetical individual who approaches any situation with the appropriate amount of caution and then sensibly takes action), and Klein’s obligation (or lack of) to adhere to N.Y. Gen. Bus. Law §§ 389-m, 389-o, Section 1-78 of the Multiple dwelling law ("Every multiple dwelling and every part there of shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section”..), and industry safety Moore 2 customs. The question asked was “Does the custom and usage per se fix the scope of the reasonable person standard?” And the response of the court was “custom and usage is highly relevant evidence related to the reasonable person standard but it does not per se define the scope of negligence. The second question asked in the US court was “Should evidence of industry custom factor into a negligence analysis? If so, in what capacity and to what extent?” The negligence definition under tort law in the US states “It is a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act.” There was no indication that the landlord was not using shatterproof glass. Which ultimately implicates our defendant, Klein. The tenant we shall make a slave in regards to Roman law, thus the property of someone else was damaged severely and the landlord’s liability is the question. The plaintiff in this case would be the owner of the slave and this would be a property damage case they brought to court. Ulpian, On Sabinus, book 42 [D.9.2.44] states “The slightest negligence founds an Aquilian action.” Ulpian is saying here that we should apply the lowest of the usual standards for fault in this case. Ignoring the outdated and dangerous nature of the glass in the bathroom, as well as ignoring the customary safety standards used at the time in New York, indicates negligence and thus is actionable under the Lex Aquilia. Paul, Sabinus, book 10 states [D.9.2.31] “If a pruner throws a branch down from a tree, or a laborer throws something from a scaffolding, killing a passing slave, they are held if they threw the thing on to a public place without shouting so that a the victim might avoid the accident. Mucius even holds that there may be an action for negligence if the same thing happens on private property, as it is negligent not to foresee what Moore 3 could have been foreseen by a careful person, or to give warning when it was too late to avoid the danger.” In the example given, the pruner throwing down the tree branches knowing there is path but then doing nothing to change the location of his throws, falls under Lex Aquilia and proves him blameworthy/negligent. The pruner’s inaction to change his pruning when knowing the danger it presented to others grants him liability. Paul, Sabinus, Book 10 [D.9.2.31] states “He is not to be deemed blameworthy when he could not have guessed that someone was about to pass through that place.” The landlord clearly knows tenants will be using the bathtub and shower, hence why it is included with the rental, placing the blame on him for it shattering due to poor safety measures. Paul ,Sabinus, book 10 [D.9.2.45.1] states “We accept knowledge here as including sufferance, so that he who could have prevented harm is liable for not doing so. One can proceed under the lex Aquilia even if a wounded slave recovers.” Paul is explicitly pointing out here that the knowledge accepted includes sufferance, directly implicates Klein for not upholding the necessary safety standards for his building and overlooking the glass bathtub. Another suit (separately not in conjunction, one or the other) Trimarco could potentially bring under Roman law would be an actio infactum. In Ulpian ,Edict, book 18 [D.9.2.18.6] “Celsus says it matters a great deal whether one kills directly or brings about a cause of death, because he who furnishes an indirect cause of death is not liable to an Aquilian action, but to an actio infactum, wherefore he refers to a man who administered poison instead of medicine and says that he thereby brought about a cause of death in the same way as one who holds out a sword to a madman; and such a man is not liable under the lex Aquilia but to an actio infactum. [7] But if a man throws another off a bridge Celsus says that regardless of whether he is killed by the impact or merely drowns at once or whether he perishes from exhaustion because he is over- come by Moore 4 the force of the current, there is liability under the lex Aquilia, just as if one dashes a child against a rock. [8]. Proculus says that if a doctor operates negligently on a slave, an action will lie either on the contract for his services or under the lex Aquilia.” Celsus making the distinction between an indirect and direct killing is relevant to our case because one can assume similar rules apply to a severely wounded plaintiff. Klein wounding Trimarco happened indirectly here as a failure to install the proper glass to keep the bathtub safe, so liability under actio infactum could be presumed to apply to Klein. The next instance in [7] is less analogous to our case but the principle can still apply. It can be interpreted as saying the direct cause of death is irrelevant if the person acted intentionally reckless, or with the intent to kill, liability still falls on the shoulders of the defendant. So whether Trimarco got wounded by the glass, or falling due to shattered glass, liability could still rest on Klein for their failure to install what was considered minimum safety standard of glass. But in this case since Trimarco was merely wounded not killed, so we cannot assume the same principles apply. The last section [8] applies more directly to our case and the contractual obligation a landlord has to their tenants. If the landlord acts negligently towards their rental unit where they know a tenant is staying, action could lie on the contract for his services or under the Lex Aquilia. The case for an actio infactum holds less ground than an Aquilian action as Roman jurists would likely not apply the same principles to a wounded slave as they would to a killed one, so bringing an actio infactum would be a last resort at best. Roman law also had a similar construct to “the reasonable person standard” called “bonus pater familias”. This referred to a standard of care and caution any prudent man would make in his own interest or the interest of his family. The slave was the plaintiffs and had the same legal rights as a son under his parentage. Although not the exactly the same as the Moore 5 reasonable person standard, it could be used in Roman court to determine whether someones actions were reasonable. An example found in the Digest of this falls under the term “careful head of household” [D.19.1.54] as PAULO: “In the contrary, for if he ordinarily did dangerous work before the sale, this occurrence will be considered as due to your fault; for example, he was a slave who ordinarily walked down a tightrope or was lowered into a sewer. The same rule holds true if you ordinarily order something which a cautious and careful head of a household would not order that slave to do. What if this right is reserved? He can still order the slave to do something unusual which he would not have ordered had he [the slave] not been sold, for example, if you ordered the slave to travel to the buyer who was abroad; this act clearly should not be at your risk.” The action of the slave exiting the bathtub in a reasonable fashion is a fairly normal occurrence so the standard the plaintiff showed in this case was reasonable. He did not order the slave to perform an action that would lead to damage or endangerment, so this puts the risk on the landlord. The landlord is also expected to show a degree of diligence under Roman law for the safety of his tenants being the building owner and vendor of the lease given to Trimarco. [D.18.6.16] GAIUS,Common Matters, book 2: When wine in casks is sold and it goes off before removal by the purchaser, the vendor will be liable to the purchaser, assuming that he vouched for its quality; if, though, the vendor said nothing, the purchaser bears the risk because, if he has not tasted the wine or, tasting, injudiciously approves it, he has only himself to blame. Of course, if the vendor knew that the quality would not last until the date for removal and did not warn the purchaser, he will be liable to the purchaser for the latter's interest in being warned.” We are comparing the wine sold to the apartment leased in this case. The expectation of quality would more or less be the same as the landlord vouched a functioning apartment with the bathtub Moore 6 as an included amenity in the lease. The landlord in this case knew about the enclosure not being up to expected (and legal) safety standards and did nothing to warn the plaintiff. So in knowing the apartment quality would likely not last for the full tenure of the lease and not warning the plaintiff, he is granted liability under Gaius. Gaius elaborates further on the vendor’s expectation of diligence [D.18.6.2] GAIUS,Common Matters, book 2: “All this is true of a vendor who would not require the vessels except for the new vintage, but should he be a merchant who regularly buys and sells wine, the time to be looked to is that when removal can be made to the vendor's advantage. 1. Let us now consider the extent of the vendor's liability for safekeeping until the time of measuring out; is it absolute, so that he has to show diligence, or is he liable only for bad faith? I take the view that he has to display diligence but that unavoidable accident or great violence will excuse him.” The time of measuring out in the passage is comparable to the duration of the lease agreement Trimarco was under when the slave was wounded. Gaius takes the stance it is up to the vendor to maintain safekeeping until that time is up. The slave shattering the enclosure was avoidable on the part of the landlord had he used the proper glass, thus not showing the amount of diligence Gaius states is necessary. This grants Klein liability. Klein (the landlord) we assume as is common, had a contractual obligation to keep up with property maintenance. Though we do not know the specifics of the contract. In modern US law, it typically requires an amount of diligence and effort on part of the landlord. Damages if not spelled out in the leasing agreement already, can be argued for in court to the judge. The difference here in consequences between the breach of Lex Aquilia versus a contractual violation is that the plaintiff has reasonable grounds to ask to be released from the contract, and it will be up to the judge’s verdict. As well as it is likely there was a predetermined amount set aside in the Moore 7 contract for damages if suit was brought by a tenant, and then action can be brought to retrieve the sum mentioned in the contract. A Locatio Conducto is a contract which is made merely by consent, without the observation of any peculiar form. The determination of a fixed price or sum of money (merces, pensio) is an essential part of the contract. When the parties have agreed about the object and the price (which is the nature of the leasing contract in this case), the contract is completed; and the parties have several actiones locati et conducti for enforcing the obligatio (Dig. 19 tit. 2). It is essentially a consensual contract, by which a person becomes bound to deliver to another the use of a thing for a certain time, or to do work at. a certain price. The object being lent in this case is the apartment, and the landlord’s failure of not delivering what was thought to be promised can be actionable as a violation as contract. An example of an obligation under Locatio Conducto can be found in Javolenus, From the Posthumous Works of Labeo, book 9 [D.19.2.57] “The action for wrongful damage lies only for situations whereby a person suffered loss without some other external cause supervening. I concur in this view.” This is specifically pertaining to a situation where the owner of a building leased it out to his neighbor and the structure collapsed due to rainfall. The lessee in this Roman case could not bring a contractual action for wrongful damages since it was caused directly by the rainfall (obviously not the landlords fault), but could rather bring an action on lease. Though in our case this suggests that since there was no external cause that made the bathtub enclosure shatter other than normal usage, Trimarco has a contractual action for wrongful damages under Locatio Conducto against the landlord. This is because Trimarco suffered a loss solely by fault of the bathtub enclosure not being shatterproof. Another example of the contractual obligation Klein holds to Trimarco can be found in GAIUS, Provincial Edict, book 5 [D.19.2.40]: "A man who receives a Moore 8 fee for the safekeeping of something is held responsible for the risk of its safekeeping.” In the break down of common leasing contracts part of overall cost every month for the tenant goes towards building maintenance, and it is spelled out in the leasing contract as an obligation for the landlord. This constitutes as a fee and makes the landlord responsible for the safekeeping of the the bathtub enclosure, thus making him responsible for it shattering due to normal usage. Klein can be brought to court with both a Lex Aquilian action and a contract violation action. The contract violation suit would likely only be used to void the contract and prove liability, unless there is a fixed claim embedded for damages to a slave or person. The owner of the injured slave (Trimarco) could sue for a hefty sum if Trimarco is unable to continue their slave duties, which due to the severity of Trimarco’s injuries would have been the case. This helps determine adequate payout in Roman court (or necessity for a payout in general), favoring the Trimarco. Paul ,Plautius, book 2 [D.9.2.33] Sextius Pedius states “That the prices of things are to be taken generally and not according to personal affections nor their special utility to particular individuals; and accordingly...... or under the lex Aquilia, we sue for the amount of the harm suffered, and we are said to have lost whatever we could have gained or what we are obliged to pay out.” This can be in regards to a natural son or slave, as long as the price is determined objectively. The important section in this particular passage in regards to Trimarco v Klein is being able to sue for the amount of harm suffered under the Lex Aquilia. The owner of the injured slave (Trimarco) could sue for a hefty sum if Trimarco is unable to continue their slave duties, which due to the severity of Trimarco’s injuries would have been the case. This favors a higher sum for Trimarco. This is under the assumption Trimarco waited beyond the 30 days to bring suit. The Lex Aquilia law pertaining to delict in the digest states “As regards things Moore 9 other than men and cattle which have been killed, if any one does damage to another, and unlawfully burns, breaks, or ruptures something, let him be ordered to pay its owner whatever that thing is worth in the nearest thirty days.”[D.9.2.27.5]. This law demands direct compensation from the defendant for damage done to the slave in the nearest 30 days. This was also suggested to include negligence (or inaction causing harm) under Lex Aquilia. As long as causation was evident, in this case the glass of the bathtub not being shatterproof and up to legal safety standards, the requirement could be satisfied. Inaction by itself cannot warrant a suit but inaction causing harm and damages, when you are contractually obligated to maintain your building can. We can compare this to gross negligence as in the case of the pruner [D.9.2.31]. In Paul, Sabinus Book 10, [D.9.2.31] Mucius expands on this “even if the accident occurred in a private place, an action can be brought if his conduct is blameworthy; and he thinks there is fault when what could have been foreseen by a diligent man was not foreseen or when a warning was shouted too late for the danger to be avoided.” The landlord’s conduct in maintaining the building with lack of due care can cast him as blameworthy. It could also be interpreted as the landlord working (action), as he was collecting payment from the tenant at the time of the accident (and is the one who put in place the bathtub enclosure) but paying little attention to the consequences working with negligence to others would have. The fragility of the bathtub glass used, and the ignorance of standard safety codes cast the landlord as blameworthy. The incident could have been easily foreseen with a quick inspection of the bathtub and reading of New York's safety codes, making Klein in-diligent and by Mucius’ standards liable for the injury done to the slave, and the cost of damages. There is not a specific passage for the exact damages Klein would owe Trimarco in this type of situation, but if we assume there was a fixed claim embedded Moore 10 in the contract for when a tenant gets injured (by normal usage) from no fault of his own (as there often is) there is a passage. ULPIAN, Edict, book 26 [12.1.9] :”The condictio for a fixed claim is available for all fixed claims arising on whatever cause or obligation; and it does not matter whether the content of a contract on which the claim is based is itself fixed or unfixed; for we are allowed to use the condictio to make fixed claims under every kind of contract, provided the obligation is immediate.” This could serve as the basis for Trimarco to make his contractual damages claim against Klein once the liability is already decided. If there is a fixed claim clause the determination of payout based amount of damage suffered to the slave would likely play a role, but still would be ultimately up to the Roman jurist. Another interpretation would be from 21. The Same, On the Edict, Book XVIII [D.9.2.21]The law says: "The greatest value of the slave during that past year. This clause refers to an assessment of the amount of the damage which was inflicted.” This law says that the damages would be based on the greatest value the slave had during the past year. So, basing it off on his peak strength, productivity, appearance, and how much he would’ve sold for at the height of those that year. Again though, this would be largely up to the Roman jurists to determine the market price of the slave at their peak during that year, and the value of how much labor Trimarco actually lost. We see this exemplified in Gaius, On the Provincial Edict, Book VII. [D.9.1.3] “There is no doubt that an action can be brought under this law in behalf of persons who are free; as, for instance, where an animal wounds the head of a family, or the son of a family, provided no account is taken of disfigurement, since anyone who is free does not admit of appraisement; but account may be taken of the expenses incurred for the cure of the injury and of the loss of labor which the party could not perform for the reason that he was disabled.” The expenses incurred for the loss of Moore 11 labor and cure of injury are explicitly mentioned in this edict (the party in this case being Trimarco), so it is likely to hold significant weight with the Roman jurists. Switching over to Klein’s (the defendant) defense under Roman Law, there is a case to be made for the irresponsibility of the slave (and slave owner) for breaking the bathtub, but malfeasance has to be proven. Ulpian, On the Edict, (D.9.2.27.11) states “Proculus says that if the slaves of a tenant have burnt down the house the tenant is held either on the contract or under the Lex Aquilia.... This is upon the assumption that the tenant was not at fault, if he employed obviously irresponsible slaves, he ought to be held for so doing in a direct action for wrongful damage.” But this argument gets refuted by the fact that negligence of NY safety standards and customs is evident from Klein, placing the blame on him under Lex Aquilia. Another interesting angle for Klein to use against the plaintiff is Ulpian, On the edict, book 18: [D.9.2.25.1] “If an agent, a tutor, a curator, or anybody else confesses that the absent defendant did the wounding, an actio utilis should be permitted against those who confessed.” For Trimarco attempting to place the liability on him even though he was absent for the incident, he can bring an actio utilis to action against the slave owner. An actio utilis is a beneficial or equitable action, available for people who have the beneficial ownership of property. That is presuming he can get past the many accusations and evidence of negligence against him. The most important Lex Aquilia provision for our defendant would be PAUL, Edict, book 22 [D.9.2.26]: “Just suppose that someone who has been summoned confesses to a killing and is prepared to pay the damages, but his opponent claims an excessive amount.” This is not elaborated on in the Digest, but one could presume from previous Edicts [D.9.2.25.2] the defendant will be exempt from paying it and the Moore 12 deciding amount for the damages will come from the judge. If Klein feels Trimarco’s owner is asking for an excessive amount it can be left to the jury and possibly nullify Trimarco’s case. The results in the US case were Klein was found 60% liable under American Law and Trimarco found 40% liable under American Law.The Supreme Court found the plaintiff's (Trimarco’s) damages to be $400,000, but also found that he was 40% negligent and defendant (Klein) 60% negligent and thus allocated their award accordingly. Trimarco’s award was adjusted to $240,656. In the Roman case, damages would be owed to slave owner (Trimarco), but still attributing to the plaintiff failure to a substantial degree to use due care upon leaving the bathtub. The damage amount that would be paid out to Trimarco is indeterminate but would be significant and based on factors such as total loss of labor, cure of injury, and appearance. A contractual violation and a Lex Aquillian action would be brought against Klein. If the contract had a fixed claim and clause for damages, they would receive that amount (and potentially more), if not a Lex Aquillian action would have to be brought to determine payout for the damaged property. In the American case they stated "A custom to be relevant, must be reasonably brought home to the [defendant's] locality, and must be so general, or so well known, that the [defendant] may be charged with knowledge of it or with negligent ignorance" (Prosser, Torts [4th ed 1971], p 168). The standard at the time was to have shatterproof glass in showers, and therefore his landlord was liable because he did not follow this recognized custom. Evident custom may be coupled with the reasonable person standard to determine liability. In Roman law since Trimarco was a slave, damages would be greater since the magnitude of the wound would have prevented him from doing work for a significant period of time. Roman jurists not having a direct law regarding negligence would resort to the Lex Aquilia and the specific clauses for Moore 13 damages in the contract. It was ruled in US law “When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care, and contrariwise, 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.” [Trimarco v. Klein. 436 NE 2d 502]. Evidence of Klein’s knowledge of the bathtub and glass door not being up to customary safety standards and choosing to ignore it granted him liability. Klein would ultimately be found liable under the Lex Aquilia.