The opinion of the court was delivered by: Pollak, J.
In this diversity case, plaintiff Christina McDonald has brought suit against defendant Lowe's Companies, Inc., claiming that Lowe's negligence resulted in an injury she sustained while working in a Lowe's store as an independent contractor. Her husband, Giovanni Chiazzese, is suing for loss of consortium. Now before the court is Lowe's motion for summary judgment (docket no. 21). For the reasons that follow, defendant's motion will be granted.
This lawsuit arises out of a workplace incident at a Lowe's retail store in Philadelphia. On April 18, 2007, plaintiff Christina McDonald was injured while working as a merchandiser at a store where she provided services to the Rough Plumbing and Electrical Departments. During the period at issue here, plaintiff*fn1 was an employee of DDP Holdings, Inc. ("DDP"). DDP had a contract with Lowe's wherein DDP provided merchandising services as an "in store service group" ("ISSG").*fn2
The Services Agreement ("SA") between Lowe's and DDP stated that ISSG personnel were not considered employees of Lowe's. SA at 1, 6. The agreement further stated that the ISSG had all authority to hire, fire, supervise, and control its employees and was responsible for all acts of its employees. Id. at 6-7. Plaintiff stated that she was hired to work independently and did not have to take direction from Lowe's employees. Deposition of Christina McDonald ("Pl. Dep.") at 38.
While plaintiff was working at Lowe's on April 18, she injured her shin when she attempted to move a metal grate in order to rearrange the shelving in an aisle of the store. When plaintiff was pulling the grate toward her, it slid forward and fell into her left leg. Id. at 82-83.
According to plaintiff's job description, the merchandising services she provided at Lowe's included "maintain[ing] Plan-O-Gram integrity." Merchandiser Job Description ("Job Desc."). A Plan-O-Gram is a blueprint of how the shelving for a specific aisle in the Lowe's store is to be arranged, such as the height level of each shelf. See Sample Plan-O-Gram ("Plan"). The metal shelving grate involved in plaintiff's injury was approximately 4' x 4' and weighed between 40 and 50 pounds. Photograph and Description of Steel Grate ("Grate Photo").
Although plaintiff's job required her to "frequently lift and/or move up to 50 lbs. of merchandise usually up to 8 - 10 feet," she notes that moving steel shelving grates was not listed explicitly in her job description. See Job Desc; Pl. Dep. at 29. Plaintiff was never trained in how to handle steel shelving, including how to move a grate from one location to another. Pl. Dep. at 29. She understood that she was not required to move steel grates, including the type of grates involved in her accident. Id. Additionally, plaintiff was never told that she could not move steel grates. Id. at 30. Although steel grates were not mentioned in plaintiff's job description or in the training she received, part of plaintiff's job was to look at the Plan-O-Gram and make sure that all the elements depicted were positioned correctly. Id. at 35.
Before the incident, plaintiff was told by her supervisor Howard Flatko, of DDP, and asked by Lowe's managers, Dave Myers and Dan Kocsis, to reset products in a particular bay according to a Plan-O-Gram. Id. at 51. Plaintiff stated that the need to reset the Plan-O-Gram arose because James Blair, the Lowe's store manager, decided to alter a four-bay Plan-O-Gram and make it into a two-bay Plan-O-Gram.*fn3 Id. at 46-47. During a walk through of the store, DDP supervisor Flatko told plaintiff to reset the altered Plan-O-Gram in time for a Lowe's corporate inspection which was to occur in three weeks. Id. at 68-69. Flatko did not specifically ask plaintiff to move the grates, but was aware that plaintiff would have to move the grates to complete the other tasks he assigned her to prepare for the inspection.*fn4 Id. at 68-69.
Similarly, Lowe's Zone Manager Dan Kocsis did not specifically tell plaintiff to move the shelves, but asked her, "Can you fix this?" Id. at 53:15. Plaintiff understood Kocsis's question to be asking plaintiff to move some of the shelving grates in order to fix the arrangements of products in the Plan-O-Gram. Id. at 53-54. Certain products were lying flat, and the Plan-O-Gram required that they be stood upright. Id. at 53-54. In order to stand the products upright as required, plaintiff had to raise several metal grates. Id.
During the three days prior to the incident, plaintiff reset the height of a few of the grates with the help of Lowe's employee Bill Myers. Id. at 55-56, 59. On the day of the incident, plaintiff again asked Myers for help and he agreed to help her. Id. at 66. Myers was not required to help plaintiff, but did so as a favor to her. Id. at 55, 64. However, Myers was frequently called away to do other work. Id. at 76. After waiting for half an hour for Myers to return, plaintiff started to move the grate herself. Id. at 67, 70, 81. At the time plaintiff decided to move the grate herself, she did not believe she had the option of waiting for Myers to return in order to help her. Id. at 72. Rather, she thought she might lose her job if she continued to wait. Id. at 80.
Plaintiff did not think it was unsafe for her to move the grate herself based on her prior experience with moving grates. Id. at 73. On previous occasions, plaintiff was able to lift grates herself when they were on floor level in order to clean the area around the grates. Id. at 60. At the time of the accident, the grate was about three feet off the ground when plaintiff decided to adjust its height. Id. at 65-66. She started to slide it down from the beams it was resting on, and when she did, the grate became off balance and fell out of her hands and into her leg. Id. at 74.
In the wake of her injuries, McDonald received benefits from DDP pursuant to the Pennsylvania Workers' Compensation Act. Id. at 92-97. She then brought this action against Lowe's.
McDonald is suing Lowe's for negligence. In her complaint, plaintiff suggests that Lowe's owed her a duty as an independent contractor and as a business invitee. Lowe's moves for summary judgment on the ground that parties that hire independent contractors are exempt from liability for injuries sustained by the employees of such contractors. In the alternative, defendant contends that all claims against Lowe's must be dismissed because Lowe's is a "statutory employer" of plaintiff. Plaintiff responds to defendant's motion by stating that plaintiff qualified as a "casual employee" of Lowe's for the purposes of the incident, which exposes Lowe's to a common law tort claim for negligence.
A court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists where the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over facts is material where it could affect the outcome of the case. Belitskus v. Pizzingrilli, 343 F.3d 632, 639 (3d Cir. 2003). "In considering the evidence, the court should draw all reasonable inferences against the moving party." El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007).
B. Plaintiff McDonald's Negligence Claims
In this diversity action, McDonald's negligence claims are governed by Pennsylvania law. In Pennsylvania, a claim for negligence requires four elements: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting in harm to the ...