Summary Judgment-Worker’s Compensation Act

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WI Court of Appeals – District I

Case Name: Katirius Johnson v. Jessica Torrez

Case No.: 2022AP000166

Officials: Brash, C.J., Donald, P.J., and White, J.

Focus: Summary Judgment-Worker’s Compensation Act

On November 12, 2018, Torrez was operating a forklift at a Kroger’s warehouse when it collided with a pallet jack driven by Katirius 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.

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.

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. The appeals court rejects 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.

Affirmed.

Decided 07/25/23

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