Torts II, Page 644

Rush v. Commercial Realty Co.

Supreme Court of New Jersey, 1929

Facts:

Plaintiffs were tenants of defendant, who controlled their house and the house next door. Defendant provided a privy (outhouse) for both houses to share. Mrs. Rush went into the privy to use it when she fell through the floor and landed nine feet below in the sewage.

Issue:

Did plaintiff impliedly assume the risk by using an outhouse with a poorly maintained floor?

Reasoning:

It was defendant's duty to maintain the floor. Plaintiff "had no choice, when impelled by the calls of nature, but to use the facilities" that the defendant provided her.

Holding:

Plaintiff did not assume the risk.
Whether plaintiff was contributorily negligent was a question for the jury.

Judgment:

There was no error in the denial of motion to take the case form the jury; affirmed.

Takeaway:

For implied assumption of risk, plaintiffs' actions must be voluntary.