William J. Kenney, Appellant, v. Anthony Marhan and Agnes Marhan, 361 F.2d 865 (3d Cir. 1966)

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US Court of Appeals for the Third Circuit - 361 F.2d 865 (3d Cir. 1966) Argued May 6, 1966
Decided June 3, 1966

Robert J. Carluccio, Hoboken, N. J., for appellant.

Robert E. Monaghan, Newark, N. J. (Schneider & Morgan, Newark, N. J., on the brief), for defendants-respondents.

Before STALEY, Chief Judge, and KALODNER and FREEDMAN, Circuit Judges.



On July 14, 1963, the plaintiff moved into a one-family dwelling in Manasquan, New Jersey which he had leased for a two-week period from the defendants. Three days later, on July 17, 1963, he slipped and fell while walking in the kitchen in his stockinged feet and was seriously injured. He sued the defendants in the District Court alleging that the accident was the result of the negligent heavy waxing of the kitchen floor by the defendants prior to his entering into possession of the leased premises. At the conclusion of the plaintiff's case, the District Court granted the defendants' motion for a directed verdict which was premised on the grounds that the plaintiff's testimony had failed to establish any breach of duty imposed by law on the defendants inasmuch as the alleged defective condition was not latent or concealed. In granting the motion for a directed verdict the District Court in an oral opinion pointed out that the plaintiff was fully aware of the "wax gloss on the floors and slippery nature thereof" when he entered into possession of the premises and further noted that the defendants had not in their lease "retained control over any part of the premises", nor had they asserted any control after the plaintiff came into possession.

On review of the record and consideration of the briefs and oral argument, we are of the opinion that the District Court did not err. LaFreda v. Woodward, 125 N.J.L. 489, 492-493, 15 A.2d 798, 800, 130 A.L.R. 1269 (1940); Folley v. United Building & Loan Ass'n of Hackensack, 117 N.J.L. 54, 57-58, 186 A. 591, 593 (Sup.Ct.1936).

For the reasons stated the Judgment entered by the District Court in favor of the defendants and against the plaintiff will be affirmed.