Vierra v. Fifth Avenue Rental Service

The basic question involved in this case is whether the trial court was justified, under the facts, in instructing on the doctrine of assumption of risk. We have concluded that it was error, serious and prejudicial, and therefore reversible, to have instructed on this doctrine.

Plaintiff Vierra operates a bar and restaurant in a building leased from defendant Berkley. Berkley operated the tools that caused the injury to plaintiff. Defendant Fifth Avenue Rental Service was the renter of the tools involved in the accident.

I At the time the lease for the bar and restaurant was entered into,…