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Rush v. Commercial Realty Co

Citation. Rush v. Commercial Realty Co., 7 N.J. Misc. 337 (Sup. Ct. Mar. 28, 1929)
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Brief Fact Summary.

The Plaintiff, tenant Rush (Plaintiff), was injured when she fell through the floor of a detached privy. Plaintiff won a suit against the Defendant landlord, Commercial Realty Co. (Defendant). The Defendant appealed.

Synopsis of Rule of Law.

Implied assumption of the risk is applicable only when a plaintiff voluntarily encounters a known risk.


Plaintiff was a tenant of the Defendant. The rented premises had a detached privy for the use of two houses. Plaintiff went to the privy and fell through the floor or through a trap door therein. Plaintiff fell nine feet into the accumulation at the bottom and had to be removed with the use of a ladder. Defendant appeals the trial court verdict, claiming that it erred in refusing a nonsuit and erred in refusing to direct a verdict for the Defendant.


Did the trial court err by not directing a verdict in favor of the Defendant based on Plaintiff’s contributory negligence or assumption of the risk?


No. Judgment affirmed.
* The building was under the control of the Defendant and it had a duty of care for maintenance. The jury could reasonably find that the accident was the result of Defendant’s negligence. Therefore, the only applicable questions are if Plaintiff assumed the risk or was contributorily negligent. Plaintiff had no choice, but to use the bathroom and had no duty to go elsewhere to do so. Therefore, using the facilities placed at her disposal was not assumption of the risk. Whether it was contributory negligence to step on the badly maintained floor was a question for the jury.


Assumption of the risk requires actual knowledge of a particular risk, appreciation of its magnitude and voluntarily encountering the risk.

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