Katirius Johnson v. Jessica Torrez, 2022AP000166

On November 12, 2018, Katirius Johnson (an Americold Logistics order selector supplied as temporary help) collided with a forklift operated by Jessica Torrez at a Kroger/Roundy’s warehouse.
Johnson sued (May 26, 2020) for negligence and a safe-place statute violation.
Kroger moved for summary judgment asserting the Worker’s Compensation Act exclusive-remedy bar (Wis. Stat. ch. 102) and sought leave to amend its answer to assert that defense.
The circuit court (June 29, 2021) allowed Kroger to amend under Wis. Stat. §802.09, permitted additional discovery, and later (Dec. 21, 2022) granted summary judgment in Kroger’s favor, finding the exclusive-remedy provision barred Johnson’s tort suit.
Johnson appealed, arguing the amendment required excusable neglect under §801.15, that Kroger forfeited the defense, and that genuine issues of material fact exist about Kroger’s control over his work.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court abused its discretion by allowing Kroger to amend its answer after the scheduling-order deadline	Johnson: Kroger needed to show excusable neglect under Wis. Stat. §801.15; it did not	Kroger: Amendment is governed by Wis. Stat. §802.09 (leave freely given when justice requires), not §801.15	Court: §802.09 controls (more specific); allowing amendment was proper and within the court’s discretion
Whether Kroger forfeited the exclusive-remedy affirmative defense by not pleading it earlier	Johnson: Failure to plead the defense in the original answer forfeits it	Kroger: It amended its answer to assert the defense and thus did not forfeit it	Court: No forfeiture — Kroger timely amended its answer and raised the defense
Whether summary judgment was improper because genuine issues exist over whether Americold is a "temporary help agency" (i.e., whether Kroger controlled Johnson’s work)	Johnson: Kroger did not exercise the requisite control over his work; Peronto supports finding genuine factual disputes	Kroger: Kroger controlled work tasks, path, schedule, and productivity monitoring (Vocollect headset and software); thus control exists and exclusive remedy applies	Court: No genuine issue — Kroger controlled the work (task, method, when, productivity tracking); Americold fits the temporary-help definition and the exclusive-remedy bar applies; summary judgment affirmed

Mueller v. Edwards, 378 Wis. 2d 689 (2017 WI App 79) (more specific statute controls when statutes conflict)
Loy v. Bunderson, 107 Wis. 2d 400 (standard for reviewing discretionary rulings)
Strasser v. Transtech Mobile Fleet Serv., Inc., 236 Wis. 2d 435 (2000 WI 87) (summary-judgment review methodology)
Peronto v. Case Corp., 278 Wis. 2d 800 (2005 WI App 32) (analysis of "control" in temporary-help context)
Gansch v. Nekoosa Papers Inc., 158 Wis. 2d 743 (1990) (supervision by employer can satisfy control requirement)
Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist., 386 Wis. 2d 425 (2019 WI 43) (failure to plead certain affirmative defenses can cause forfeiture)