Wenninger v. HTSS, Inc.

BARBARA WENNINGERAND JOHN WENNINGER, H/W, Appellants v. HTSS, INC. AND MICHAEL KRAMER, Appellees

J-A13044-20

No. 2786 EDA 2019

SUPERIOR COURT OF PENNSYLVANIA

APRIL 5, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered September 16, 2019 in the Court of Common Pleas of Bucks County

Civil Division at No(s): No. 2017-02690

BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.^*

MEMORANDUM BY BENDER, P.J.E.:

Barbara and John Wenninger appeal from the September 16, 2019 order granting summary judgment in favor of HTSS, Inc. (HTSS) and Michael Kramer (collectively, Defendants).¹ Upon review, we vacate the trial court's grant of summary judgment in favor of Defendants and against the Wenningers and remand to the trial court for further proceedings.

We glean the following from the record. On July 7, 2015, Wenninger, a human resources coordinator employed by Ryder Truck Rental and Maintenance Services (Ryder), fell on a wet bathroom floor while she was at work. According to Wenninger, there were no indications from the hallway outside the bathroom that the floor was wet. When she swung the bathroom door open, she took one step inside and immediately fell on the wet bathroom floor. She sustained injuries to her hip, shoulder, and back, and underwent a total hip replacement.

The floor had recently been mopped by Michael Kramer, a temporary worker assigned to Ryder by HTSS, a staffing services agency. In 2015, Ryder had stopped hiring employees in anticipation of closing the facility and arranged for the services of temporary workers employed by HTSS instead. As a human resources manager, part of Wenninger's job at Ryder included hiring these temporary workers through HTSS. Ryder and HTSS negotiated the rates Ryder would be billed, from which HTSS would pay the temporary workers' hourly wages. HTSS and Ryder had no written contract regarding this arrangement.

After Wenninger requested that HTSS provide Ryder a temporary employee to perform cleaning tasks, HTSS hired Kramer and assigned him to work at Ryder beginning in late June 2015. At Ryder, Kramer filled out a weekly timesheet, which he submitted to Wenninger. She faxed it to HTSS so that HTSS could pay Kramer for the hours he worked at Ryder. HTSS retained responsibility for paying Kramer's wages, workers' compensation benefits, and taxes related to his employment. If Kramer was unable to report to work at Ryder due to sickness or another unexpected reason, he was supposed to contact HTSS. HTSS selected the temporary workers for a given job based on the scope of the job requested by Ryder. HTSS retained the right to terminate a worker's employment, but Ryder could unilaterally request removal of the worker from the assignment.

On his first day of work, Ryder provided Kramer with a safety vest and safety glasses, and directed him to purchase safety boots, for which Ryder would reimburse him up to $50. According to Wenninger, Ryder's general maintenance manager, Mark Tenaglia, "would direct [Kramer] as to what [Ryder] needed to have accomplished." Motion for Summary Judgment, 4/2/2019, at Exhibit C (Wenninger Deposition, 6/7/2018, at 27). Tenaglia was a "task person" who "would show [Kramer] this is what we need to do. This is why you are here." Id. Kramer recalls that he met with someone in the office who introduced him to a Ryder employee named Jose, who was to train him. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 21-23). Jose spoke "broken" English, but Kramer got the gist of what Jose was saying, which was "[h]ere's how you perform these acts. Here's how you do it. So it was kind of a monkey see, monkey do to replicate what he did." Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 24). Jose showed him how to perform his assigned tasks, which were all custodial in nature: cleaning windows, emptying trash cans, mopping the floors of Ryder's five bathrooms, and sweeping the warehouse floor. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 24, 28). Ryder provided Kramer a list of tasks to complete daily, but Kramer decided the order in which he completed the tasks. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 30-33, 84). Kramer never discussed the tasks with HTSS. Id.

When it came to the bathrooms, Kramer typically began by emptying the trash, cleaning mirrors and toilets, and filling soap and paper towel dispensers as needed. He then mopped the entire tile floor from back to front. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 36-38). Kramer, who was in college and considered this assignment to be his summer job, had never mopped a floor prior to performing this task at Ryder. Kramer was aware prior to starting this job that a tile floor could be slippery when wet and a caution sign could warn people of this fact. Jose told Kramer to put out wet floor signs when mopping as part of his training. He did not tell Kramer where to position the sign. Ryder stored wet-floor caution signs in certain bathrooms, but Kramer was unaware of such a sign being stored in the women's bathroom near the offices. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 28-29).

On the day in question, Kramer mopped the women's bathroom near the offices. He then left the recently-mopped bathroom to retrieve a wet-floor caution sign from the maintenance cage where Ryder stored the cleaning supplies. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 53).² By the time he had returned, Wenninger had fallen on the floor. He sometimes left the mop cart in the hallway during mopping, but did not on this particular day. He did not recall where he left the cart.

Approximately two weeks following Wenninger's accident, Ryder told Kramer his services were no longer needed. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 54-56). Kramer then contacted HTSS and told him he was resigning from his employment with HTSS. Id.

Following her accident at work, Wenninger filed a claim and obtained compensation from Ryder pursuant to the Workers' Compensation Act.³ Subsequently, the Wenningers filed a complaint on April 21, 2017, alleging negligence against Defendants. Specifically, the complaint alleged that Kramer was negligent when he mopped the bathroom floor at Ryder, insomuch as he "allow[ed] the bathroom floor of the property to be and remain in a dangerous and defective condition" and "allow[ed] water to accumulate and remain on the bathroom floor ... for an unreasonable length of time so as to create an unreasonable hazard to invitees, in general, and [Wenninger] in particular." Complaint, 4/21/2017, at ¶ 9(b). The Wenningers also averred that Kramer "fail[ed] to post or display warnings to invitees, in general, and [Wenninger] in particular, of the dangers associated with water on the bathroom floor." Id. at ¶ 9(c).

The Wenningers averred that HTSS was vicariously liable for the acts of Kramer because Kramer was an employee of HTSS. Id. at ¶ 15. The Wenningers also averred that HTSS caused her injuries by its own negligent and careless conduct. Specifically, they allege that HTSS "knew or should have known that [] Kramer was not qualified, skilled[,] and/or trained to perform the tasks he was assigned at the property and was likely to perform such tasks, in general, and the mopping/cleaning of the bathroom floor, in particular, in an unsafe manner." Id. at ¶ 16(a). According to the Wenningers, HTSS "had information tending to suggest that [] Kramer was negligently and carelessly inclined or otherwise unfit for the assignment he was given by [] HTSS on the property and such unfitness could be ascertained through a proper screening process[.]" Id. at ¶ 16(b). They further alleged HTSS breached its duty of care and failed to exercise the proper degree of care by assigning Kramer to Ryder without "proper screening, training[,] and instruction[,]" and ensuring that he "possessed the necessary knowledge and skill regarding how to properly mop and clean a floor, in order to minimize the accumulation of water" and "properly post caution signs and restrict access to an area where he created a wet floor hazard to those walking on the property." Id. at ¶ 16(c)-(e).

Defendants filed an answer denying the allegations and pleading a new matter, to which the Wenningers replied. Following the close of discovery, Defendants moved for summary judgment against the Wenningers. Defendants argued that HTSS was immune from vicarious liability because Kramer worked under Ryder's direction and control as a borrowed employee, and pursuant to 77 P.S. § 481, the Wenningers' exclusive remedy was through the Workers' Compensation Act from Ryder. Motion for Summary Judgment, 4/2/2019, at ¶¶ 40-51. Additionally, Defendants argued that because Kramer was Wenninger's co-worker and acting in the scope of his employment at the time of the incident, Kramer was not personally liable for any injuries from the incident pursuant to 77 P.S. § 72. Motion for Summary Judgment, 4/2/2019, at ¶¶ 52-66.

The Wenningers filed a response, arguing that the borrowed employee doctrine did not apply and/or there were disputes of material fact because HTSS retained control over Kramer. Wenningers' Reply to Motion for Summary Judgment, 4/25/2019, at ¶¶ 7-65. They further argued Wenninger and Kramer were not in the same employ because one worked for Ryder and the other for HTSS. Id. They also asserted that the motion for summary judgment did not address the Wenningers' claim for negligent placement and training against HTSS. Id. at ¶¶ 35, 49.

On September 13, 2019, the trial court granted summary judgment in favor of Defendants and against the Wenningers. The Wenningers timely filed a notice of appeal, and both the Wenningers and the trial court complied with Pa.R.A.P. 1925. On appeal, the Wenningers raise the following claims, which we reorder for ease of disposition:

A. Whether the trial court committed an abuse of discretion and/or error of law in failing to even consider whether an employment agency,

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