Katirius Johnson v. Jessica Torrez

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP166 Cir. Ct. No. 2020CV3135

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

KATIRIUS JOHNSON,

PLAINTIFF-APPELLANT,

TWIN CITY FIRE INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFF,

V.

JESSICA TORREZ, ROUNDY’S SUPERMARKETS, INC., ABC INSURANCE
COMPANY, THE KROGER COMPANY AND DEF INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
LAURA GRAMLING PEREZ, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.
No. 2022AP166

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Katirius Johnson appeals an order granting
summary judgment to Jessica Torrez, Roundy’s Supermarket, Inc., and the Kroger
Company (collectively “Kroger”). On appeal, Johnson argues that the circuit
court erroneously exercised its discretion by allowing Kroger to amend its answer,
and that Kroger forfeited its right to raise the exclusive remedy provision of the
Worker’s Compensation Act as an affirmative defense. Johnson also argues that
the circuit court erred by granting summary judgment. For the reasons discussed
below, we disagree and affirm.

BACKGROUND

¶2 On November 12, 2018, Torrez was operating a forklift at a Kroger’s
warehouse when it collided with a pallet jack driven by Johnson. At the time of
the accident, Johnson was an order selector for Americold Logistics, LLC. When
staffing needs arose, Kroger hired temporary workers through agencies, such as
Americold.

¶3 On May 26, 2020, Johnson filed a complaint alleging that Torrez
negligently operated the forklift she was driving at the time of the collision.
Johnson also alleged a violation of Wisconsin’s safe place statute. See WIS. STAT.
§ 101.11 (2021-22).1

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶4 Kroger filed a motion for summary judgment asserting that
Johnson’s lawsuit was precluded by the exclusive remedy provision of the
Worker’s Compensation Act in WIS. STAT. ch. 102. In response, Johnson
contended that Kroger had failed to assert an exclusive remedy defense in its
answer and thus requested that the circuit court deny the motion for summary
judgment. Alternatively, Johnson contended that the Worker’s Compensation Act
did not bar his lawsuit. Kroger disputed that the exclusive remedy defense was
forfeited, and moved for leave to amend their answer to more expressly raise the
defense, which Johnson opposed.

¶5 On June 29, 2021, the circuit court granted Kroger’s motion to
amend their answer, and allowed additional discovery. The court stated that
“leave to amend the pleadings should be freely granted in the interest of justice,”
and that it was better to address matters on the merits rather than a technicality,
such as “failing to plead something.” In regards to potential prejudice to Johnson,
the court stated that it appeared that Johnson had “at least, to some degree, had in
mind throughout the litigation of this case the possibility that there’s a worker’s
[compensation] issue involved in it,” and that any potential prejudice would be
remedied by allowing additional discovery.

¶6 In addition, the circuit court stated that, contrary to Johnson’s
suggestion, Kroger was not required to show excusable neglect to amend the
answer, but that excusable neglect was established. The court observed that
Kroger had stated that it offered a defense of failure to state a claim and “[i]t had
in mind that this pleading fell within the rubric of failure to state a claim and now
realizes that there may be some question about that, and I think that that does
establish excusable neglect.”

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¶7 Following additional discovery, on December 21, 2022, the circuit
court granted summary judgment in favor of Kroger. The court further found that
the Worker’s Compensation Act applied and Johnson was prohibited from
bringing a lawsuit against Kroger. This appeal follows.

DISCUSSION

¶8 On appeal, Johnson contends that the circuit court erred in allowing
an amendment to Kroger’s answer because Kroger did not show “excusable
neglect,” under WIS. STAT. § 801.15(2)(a). This statute provides in relevant part
that:

When an act is required to be done at or within a specified
time, the court may order the period enlarged but only on
motion for cause shown and upon just terms…. If the
motion is made after the expiration of the specified time, it
shall not be granted unless the court finds that the failure to
act was the result of excusable neglect.

Id. Johnson observes that pursuant to the scheduling order, Kroger was required
to amend its answer by September 25, 2020, but did not do so until months after
the expiration of the deadline.

¶9 Kroger responds that the amendment of the pleadings is covered by a
different statute, WIS. STAT. § 802.09(1). This statute provides in relevant part
that:

A party may amend the party’s pleading once as a matter of
course at any time within 6 months after the summons and
complaint are filed or within the time set in a scheduling
order under s. 802.10. Otherwise a party may amend the
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given at any stage
of the action when justice so requires.

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Id. Thus, according to Kroger, it did not need to show excusable neglect, but only
that “justice so require[d].” See id.

¶10 We agree with Kroger. When two statutes conflict, the more
specific statute controls. See Mueller v. Edwards, 2017 WI App 79, ¶11, 378
Wis. 2d 689, 904 N.W.2d 392. Here, WIS. STAT. § 802.09 is the more specific
statute because it governs the amendment of pleadings. In contrast, WIS. STAT.
§ 801.15 generally governs when a party seeks to extend a deadline. Thus, Kroger
did not need to show excusable neglect, and we reject Johnson’s argument that the
circuit court erroneously exercised its discretion when it allowed the amendment
of the answer. The circuit court examined the relevant facts, applied a proper
standard of law, and reached a conclusion that a reasonable judge could reach. See
Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶11 Johnson also contends that Kroger forfeited its right to rely on the
exclusive remedy defense. However, because we conclude that the circuit court
properly allowed Kroger to amend its answer to include the exclusive remedy
defense, we reject Johnson’s argument that this defense was forfeited.2

¶12 Finally, Johnson contends that if this court rejects his arguments
regarding the amended information, we should still remand this case for additional

2
In support of his forfeiture argument, Johnson relies on Maple Grove Country Club
Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, ¶45, 386 Wis. 2d 425, 926 N.W.2d
184. We do not find Johnson’s reliance on Maple Grove persuasive. In Maple Grove, our
supreme court held that the failure to comply with WIS. STAT. § 893.80(1d), a notice of claim
statute, was an affirmative defense that had to be raised in a responsive pleading. Id., ¶¶1, 3. The
court further stated that because the defendant “failed to set forth the defense in its answer and it
has not amended its answer to include it, such a defense is deemed [forfeited].” Id., ¶3. As stated
above, unlike in Maple Grove, here, Kroger’s answer was amended to include the exclusive
remedy defense.

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proceedings because the circuit court erred by granting Kroger’s motion for
summary judgment.

¶13 Summary judgment is appropriate if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. WIS.
STAT. § 802.08(2). “[A] circuit court’s decision to grant summary judgment is a
question of law that the court reviews independently.” Strasser v. Transtech
Mobile Fleet Serv., Inc., 2000 WI 87, ¶28, 236 Wis. 2d 435, 613 N.W.2d 142.
When reviewing a decision on summary judgment, we use the same methodology
as the circuit court. Id., ¶30.

¶14 According to Johnson, Americold does not fit the definition of a
“temporary help agency” and thus Johnson is not barred from recovering damages
from Kroger under the exclusive remedy provision of the Worker’s Compensation
Act. See WIS. STAT. § 102.29(6) (providing that “[n]o employee of a temporary
help agency who has the right to make a claim for compensation may make a
claim or maintain an action in tort against … [a]ny employer that compensates the
temporary help agency for the employee’s services”).

¶15 A “temporary help agency” is defined as “an employer who places
its employee with or leases its employees to another employer who controls the
employee’s work activities and compensates the first employer for the employee’s
services, regardless of the duration of the services.” WIS. STAT. § 102.01(2)(f).

¶16 Johnson appears to concede that Americold placed Johnson with
Kroger and Kroger compensated Americold for Johnson’s services. However,
Johnson contends that genuine issues of material fact exist as to whether Kroger
controlled Johnson’s work activities. In support, Johnson relies on Peronto v.
Case Corp., 2005 WI App 32, 278 Wis. 2d 800, 693 N.W.2d 133.

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No. 2022AP166

¶17 In Peronto, this court examined whether a worker was barred from
recovering damages in a negligence action against Case Corporation because she
was an employee of a temporary help agency, Compass Group USA Inc., at the
time of her accident. Id., ¶1. We concluded that Compass was not a temporary
help agency and thus Case was not immune from tort liability. Id., ¶20. In
analyzing the “control” requirement, we observed that the worker had only “rare
contact” with a Case supervisor whereas her Compass supervisor provided
directions, handled her maintenance and new supplies requests, set her hours,
authorized her vacations and sick time, and handled discipline. Id., ¶¶16-17. We
stated that while the worker may have used Case equipment, may have worked at
times with Case employees, and may have been periodically subject to Case’s
inspection, there “appears to have been little to no compulsion by Case[.]” Id.,
¶18. Compass rather than Case directed what work was to be performed, when
she was to perform it, and how she was to perform it. Id., ¶¶15, 18. Thus, we
concluded that Case did not control the worker’s activities. Id., ¶20.

¶18 In contrast to Peronto, Kroger controlled Johnson’s pallet jack
driving activities. Johnson was provided a Vocollect headset, which told Johnson
where to start selecting for each pallet and his path until the pallets were complete.
If Johnson tried to deviate from the Vocollect path, the system would keep
directing him to the proper location. Johnson did not have discretion as to what
job to perform. Thus, Kroger controlled what work was to be performed and how
Johnson was to perform it. See id., ¶15; cf. Gansch v. Nekoosa Papers Inc., 158
Wis. 2d 743, 752-55, 463 N.W.2d 682 (1990) (holding that Nekoosa Papers’
supervision of the plaintiff constituted sufficient control under WIS. STAT.
§ 102.01(2)(f) where Nekoosa’s foreman instructed the plaintiff about his duties
each day).

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¶19 Kroger also controlled the scheduling of the Americold workers.
Additionally, Kroger used software to track the productivity of the workers.
Kroger used these reports for each floor worker to evaluate picker efficiency.
Thus, Kroger controlled the “when” of Johnson’s work. See Peronto, 278 Wis. 2d
800, ¶15.

¶20 Johnson contends that Kroger has failed to provide any evidence that
a “specific human-being” directed Johnson’s work, supervised his work, or
evaluated the productivity of his work. As Kroger observes, Johnson, however,
does not cite any authority that a “specific human-being” must supervise his work
as opposed to a software system.

¶21 Johnson also asserts that a third-party logistics firm was controlling
and automating the systems that were directing his activities on the day in
question. Regardless of whether Kroger owned the software, Kroger controlled
Johnson’s work through its decision to use the software.

¶22 Finally, Johnson contends that Kroger has acted inconsistently
during the litigation of this case. Johnson argues that Kroger’s initial answer and
amended answer denied that Kroger was Johnson’s employer or that it had control
over the premises at issue.

¶23 Paragraph 14 of the complaint alleged that:

14. That with respect to the premises located at 1111
Delafield Road, Oconomowoc, WI 53066, Roundy’s and/or
Kroger had control over the premises, was an employer
and/or owner of a place of employment and/or was an
owner of a public building as those terms are defined in
§ 101.01, WIS. STATS[.]

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¶24 Kroger’s initial answer and amended answer stated that:

14. Paragraph 14 states conclusions of law for which no
response is required. To the extent a response is required to
Paragraph 14, these Answering Defendants lack knowledge
or information sufficient to form a belief regarding the truth
of the allegations contained in Paragraph 14, and therefore
deny the allegations contained in Paragraph 14.

¶25 Contrary to Johnson’s suggestion, the complaint did not address
whether Kroger controlled Johnson’s work activities. Rather, the complaint
alleged that Kroger: (1) had control over the premises, (2) was an employer
and/or owner of a place of employment, (3) and/or was an owner of a public
building under the safe place statute definitions. See WIS. STAT. §§ 101.01 and
101.11. Thus, any denial by Kroger did not address whether Kroger controlled
Johnson’s work activities.

¶26 Johnson also notes that after the accident, Kroger did not report the
incident to the Occupational and Safety Health Organization because Kroger
reasoned Johnson was not a Kroger employee. See 29 C.F.R. § 1904.39(a)2.
This, however, is not inconsistent with Kroger’s position. Kroger’s position is that
the exclusive remedy provision applies because Johnson is an employee of a
temporary help agency, Americold, not a direct employee or a joint employee.
Thus, requiring Americold to fulfill its federal responsibilities is not inconsistent.

CONCLUSION

¶27 In sum, for the reasons stated above, we reject Johnson’s arguments
that the circuit court erroneously exercised its discretion in allowing the
amendment of Kroger’s answer and that Kroger forfeited its right to raise the
exclusive remedy defense. In addition, we reject Johnson’s argument that a
genuine issue of material facts exists. Accordingly, we affirm.

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No. 2022AP166

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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