APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This action arises from injuries suffered by the plaintiff on January 14, 1974, when he fell into an open trapdoor while delivering milk for his employer, Sidney Wanzer Dairy Co., to the Medici Gallery and Coffee House, Inc. (Medici), located at 1450 East 57th Street, Chicago. Suit was initiated against Medici and Peoples Gas, Light and Coke Company, which had allegedly opened the trapdoor to install a gas meter. Subsequently, defendant, Hermitage Corporation, whose employees were allegedly using the trapdoor to make repairs to the restaurant, was added as an additional party.
Plaintiff charged each defendant with various acts of negligence including the failure to provide barricades around the trapdoor. The defendants filed answers generally denying plaintiff's charges and moved for summary judgment on the basis that plaintiff had been contributorily negligent as a matter of law. The trial court granted defendants' motion, and it is from this ruling that plaintiff now appeals.
The sole issue on appeal is whether the trial court erred in finding plaintiff guilty of contributory negligence as a matter of law. We reverse and remand. The pertinent facts established by the documents of record follow.
Plaintiff had routinely delivered milk to Medici approximately three times a week over a four-year period. On Monday, January 14, 1974, he arrived to make his delivery at about 10:30 a.m. As was his usual custom, he unloaded four six-gallon dispensers of milk and eight quarts of half & half, placed them on his handcart and after knocking on the front door to gain entrance was admitted into the restaurant by Mrs. Roper, the Medici cook.
Upon entering the premises, plaintiff immediately proceeded to the rear of the building and placed the six-gallon containers in the walk-in cooler. At that time he happened to notice an employee of the gas company who appeared to be working on a gas meter located in that area. He then retraced his steps to the front of the building where the kitchen was located. He entered the dining room, which was adjacent to the kitchen, and placed the eight containers of half & half in an icebox located there. As was his custom, plaintiff then poured himself a cup of coffee from the coffee machine located next to the icebox and placed the empty half & half containers on his cart. He then walked into the kitchen to check on refilling the milk machine located there.
In order to enter the kitchen from the dining room, it is necessary to pass through a swinging door. Upon entering the kitchen plaintiff found that the milk machine did not need refilling. He then stood with his back to the swinging door, at a distance of approximately one foot, drinking his coffee and talking with Mrs. Roper. As he talked, plaintiff leaned against the door with his left shoulder and took one step back with his right foot. While still talking with Mrs. Roper, plaintiff took another step, with his left foot, and fell through the open trapdoor sustaining his injuries.
The trapdoor through which plaintiff fell was located in the dining room area of the restaurant and was used by repairmen to gain access to the basement when repairs were necessary. Roger Vice, the Medici manager, testified on deposition that the trapdoor was rarely open. This was confirmed by plaintiff, who testified that he had only seen it open on one other occasion several years prior to the instant occurrence.
Plaintiff estimated that the trapdoor measured approximately 30 inches square and was located approximately two feet from the swinging door. When opened in the direction of the dining room, the door "probably" passed right over the middle of the trapdoor opening. On the day of the accident plaintiff noticed that the trapdoor was open as he was in the process of filling the icebox in the dining room. Plaintiff stated that he "evidently" walked around the opening as he entered the kitchen to check the milk machine.
Roger Vice stated that there were no particular barricades or other devices used to prevent someone from falling into the open trapdoor. However, he further stated that any necessary repair work would be done early in the morning when no one was around in order to avoid such an occurrence. If customers were present when the trapdoor was open, chairs would be placed both north and east of the opening to call attention to it.
Mr. Vice also testified that precautions were taken to prevent injuries to persons entering the dining room from the kitchen when the trapdoor was open. He testified that on occasion Mrs. Roper would warn persons that the trapdoor was open, and at other times a chair would be placed in the kitchen behind the swinging door so that it could not be opened.
Mrs. Roper testified that usually when the trapdoor was open, the swinging door in the kitchen would be propped open or chairs would be placed around the opening. At times both safety devices would be used. She further testified that both Mr. Vice and repair workers would employ these safety precautions.
Although Mrs. Roper was aware that the trapdoor was open on the morning of the accident, she did not advise plaintiff of it or warn him to be careful. Additionally, no chairs were placed around the ...