Rush v. Commercial Realty Co. Case Brief

Summary of Rush v. Commercial Realty Co, S. Ct. NJ, [1929]

Defenses – Plaintiff’s Conduct; Assumption of Risk-Implied

Relevant Facts: Pls were tenants of the df who controlled the house they lived in and the adjoining house, including the bathroom in between. Pl Rush was using the privy and fell, allegedly by way of a trap door, through the floor. She descended to the bottom, nine feet.

Legal Issue(s): Whether the landlord has an duty of care toward the maintenance of the privy located on property under his care, or whether the pl assumed the risk in using it?

Court’s Holding: Yes

Procedure: Jury trial for pl. Df moved for nonsuit and directed verdict. Denied; Affirmed

Law or Rule(s): The owner of property under his control is subject to liability for failure to maintain and avoid a defective condition.

Court Rationale: The pl was under no obligation to use the facilities elsewhere, she had no choice. Those facilities were placed for her disposal by the landlord. This is not assumption of risk, she was not required to leave the premises and go elsewhere.

Plaintiff’s Argument: The landlord provided the privy for the tenant’s use and the landlord failed to maintain a working, safe condition.

Defendant’s Argument: The pl assumed the risk inherent in using a communal privy, and assumed the risk when the property was under her care.

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