## Facts

- Mary Rush and her husband were tenants of Commercial Realty Company in a house it controlled; the landlord also controlled an adjoining house.
- The landlord provided and maintained a detached privy for the shared use of occupants of both houses.
- Mrs. Rush entered the privy to use it and fell through the floor (or a trap door), dropping roughly nine feet and requiring rescue by ladder.
- Mrs. Rush testified the floor was in bad condition.
- The landlord denied there was a pit and contended the floor was only about nine inches above solid ground, creating a factual dispute for the jury.
- A jury returned a verdict for the tenants.
- The trial court denied the landlord’s motions for nonsuit and directed verdict; the landlord appealed those rulings.

## Issues

1. Whether the trial court erred in denying a nonsuit or directed verdict where the landlord argued Mrs. Rush impliedly assumed the risk by using a privy she knew was in poor condition.
2. Whether Mrs. Rush’s conduct constituted contributory negligence as a matter of law, requiring the case to be taken from the jury.

## Decision

- The Supreme Court of New Jersey affirmed the judgment for the tenants (per curiam).
- Viewing the evidence in the tenants’ favor, the privy was a facility under the landlord’s control and maintained for tenants’ general use, supporting a duty of reasonable care and a jury question on negligent maintenance and causation.
- Implied assumption of risk did not bar recovery because Mrs. Rush’s use of the privy, driven by necessity and the lack of a reasonable alternative, was not a voluntary encounter with the danger in the legal sense.
- Whether Mrs. Rush was contributorily negligent in stepping onto the allegedly defective floor depended on the conditions and her knowledge (or what she should have known) and was properly submitted to the jury.

## Legal Principles

- A landlord who retains control of a facility provided for the common use of tenants owes a duty of reasonable care to maintain it and may be liable for injuries caused by negligent maintenance.
- Implied assumption of risk applies only when the plaintiff knowingly and voluntarily confronts a known danger; necessity and lack of a practical choice negate voluntariness.
- Contributory negligence is generally a fact question when reasonable jurors could differ on whether the plaintiff acted with reasonable care under the circumstances; it is not resolved as a matter of law on a nonsuit or directed verdict when material facts are disputed.

## Conclusion

Because the shared privy could be treated as a landlord-controlled common facility and because assumption of risk required voluntary exposure not shown on these facts, the defenses did not warrant taking the case from the jury; the verdict for the tenants was affirmed.


Rush v. Commercial Realty Co., 7 N.J. Misc. 337, 145 A. 476 (N.J. Sup. Ct. 1929)