Plaintiff was a tenant of a house controlled by defendant. While using the outhouse on the property, plaintiff fell through the floor and descended nine feet into the accumulation below. Plaintiff brought suit against defendant for negligent maintenance of the outhouse.
An injured party has not impliedly assumed the risk when he or she did not voluntarily or knowingly consent to the tortfeasor’s negligent act.
Mrs. Rush (plaintiff) was a tenant of Commercial Realty Co. (defendant), who owned and controlled the house that she lived in and also the adjoining house. Commercial Realty Co. provided a detached outhouse on the property for the tenants of both homes to use. One day, Mrs. Rush went to use the outhouse and while doing so, fell through the floor through “some sort of trap door.” She descended approximately nine feet into the accumulation at the bottom of the outhouse. She sued Commercial Realty Co. for negligent maintenance of the outhouse. At trial, she argued that the outhouse was in bad order and that Commercial Realty Co. had thereby failed in their duty of care as a landlord. Defendant filed motions for a nonsuit and directed verdict. The jury denied defendant’s motions and found for Mrs. Rush. Defendant appealed to the Supreme Court of New Jersey.
Whether an injured party has impliedly assumed the risk when he or she did not voluntarily or knowingly consent to the tortfeasor’s negligent act?
No, Mrs. Rush did not impliedly assume the risk when she fell through the floor while using the outhouse. Mrs. Rush had no choice but to use the bathroom facilities at her disposal. The judgment of the trial court denying defendant’s motions is affirmed.
Mrs. Rush did not assume the risk of falling through a trap door while using the outhouse. Impelled by the “call of nature,” Mrs. Rush had no choice but to use the bathroom facilities at her disposal. She was not required to leave the property and use the bathroom elsewhere. Moreover, she did not know nor could she have known of the poor conditions of the outhouse’s floor. Commercial Realty Co. did a poor job in maintaining the outhouse on a property that was under their control. The question of whether it was contributorily negligence to step on the floor in the outhouse when the structure was in bad order was properly left to the jury. There was no error in denying the defendant’s motions since Mrs. Rush did not impliedly assume the risk of falling through a trap door and descending about nine feet into the accumulation below the outhouse.