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May 27, 1994


In the Circuit Court of Cook County. The Honorable Joseph N. Casciato, Judge Presiding.

Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

Justice Giannis delivered the opinion of the court:

Plaintiff, Gil Ferrer, filed a single-count personal injury action alleging violation by defendant of the Structural Work Act. Plaintiff later obtained leave of court to amend the complaint and allege negligence. Before the complaint was amended, however, defendant, Sugar Magnolia, Inc., brought a motion for summary judgment which the court granted. The trial court found there to be no just reason to delay appeal. We have jurisdiction under Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).)

At the time of his injury, plaintiff was employed by the owners of a multi-unit commercial building. Defendant was a lessee of the first floor space in the building and was engaged in converting this space from a record store into a retail clothing boutique.

As part of its renovation, defendant constructed a mezzanine. Photographs in the record show that the mezzanine stood in the rear of the store and had a poured concrete floor supported by metal posts. The mezzanine was designed to give shoppers access to an "upstairs" and "downstairs" level. The obvious benefit provided by the mezzanine was that it created greater floor space to display clothing.

In the middle of the mezzanine defendant cut two large holes which were designed to allow light to pass into the downstairs area. During the construction process the holes in the mezzanine floor were also convenient for the workers to use when they needed to pass tools or supplies between the upstairs and downstairs areas. The holes also made it possible for the workers on the two different levels to communicate with one another. Finished railings were eventually installed around the holes, but these railings were not in place when plaintiff was injured.

Because the store had a high ceiling, workers renovating the walls and ceiling of the store used the upper area of the mezzanine to elevate themselves while they worked. At the time plaintiff fell from the mezzanine, access to the upstairs area was by a temporary wooden staircase.

As noted, plaintiff was not one of the workers hired by defendant to perform renovations on the store. Instead, plaintiff was employed by the building's owner both as a janitor and as a "porter" for the building. In his deposition, plaintiff testified that he was paid amonthly salary for his janitorial work and received an hourly salary for his work as a porter. Plaintiff testified that his janitorial duties usually involved after-hours cleaning the common areas of the building. During the renovation plaintiff would occasionally haul garbage out of the building from inside the renovation area when requested to do so. He was not specifically employed, however, to provide janitorial services to defendant's boutique.

Plaintiff's job as a porter required him to carry a beeper and the building's passkeys. When someone needed access to the building after hours his employer would summon him to the building to turn off the alarms and open the necessary doors.

There was a cold snap in late December of 1989. Because the store was uninsulated and had no heat during the renovation, the temperatures inside the boutique dropped. Plaintiff was called on Friday and told to meet a heating contractor at the building. When plaintiff and the contractor were unable to arrange a meeting on Friday, however, they agreed to meet one another on Tuesday after the Christmas holiday weekend. As a result of the falling temperatures in the store, however, a pipe burst.

Plaintiff's employer called him on Sunday, Christmas day, and told him to meet a plumber at the store that afternoon because a pipe had frozen and water was leaking inside. Plaintiff arrived at the store and met the plumber. Plaintiff opened the outer doors to the building and proceeded inside with the plumber in order to search for the broken pipe. Once inside, the two men could hear running water. Plaintiff and the plumber walked up the mezzanine stairs to look for the temporary lighting and the water shut off valve. The store was dark because workers had recently covered the windows with paper. On the way to the back of the mezzanine, plaintiff fell through one of the open holes and was injured on the floor below.

The issue presented is whether a plaintiff who falls through a hole in a mezzanine floor which had been used by workers for support in the renovation of a building may maintain a cause of action under the Structural Work Act, even though the ...

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