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Houck v. Day

A-4460-99T1 (N.J. Super. App. Div. 2001) (Unpublished)

PREMISES LIABILITY; RES IPSA LOQUITUR—Where a defective part of an owner’s property is not in its exclusive control, a res ipsa jury instruction is inappropriate.

A guest at a residence fell from a deck when the railing on which she was leaning collapsed. A jury found there was no hazardous condition at the premises to cause the fall. The guest appealed, arguing that the lower court erred in its submission to the jury of the question of whether there was a hazardous condition, that the lower court failed to define the term “hazardous condition,” and that the lower court wrongfully denied her request for a res ipsa loquitur instruction. The Appellate Division found that these contentions were without merit, recognizing that the parties never raised the issue of whether the term “hazardous condition” required a special definition and also that the jury was free to accept the testimony of a witness who observed the guest leaning over the railing before she fell. With respect to the request for a res ipsa instruction, the Appellate Division held that lower court properly denied the guest’s request because the railing was not in the exclusive control of the homeowner, and the guest’s actions played a substantial part in the failure of the railing.

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