Hodge v. v. Aramark Healthcare Support Services ( 2017 )


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  • J-A14017-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    VALERIE HODGE                                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    ARAMARK HEALTHCARE SUPPORT
    SERVICES, LLC AND ARAMARK
    HEALTHCARE
    No. 2201 EDA 2016
    Appeal from the Order June 14, 2016
    In the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): May Term 2015 No. 2582
    BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.
    MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 05, 2017
    Valerie Hodge appeals from the June 14, 2016 order entering
    summary judgment in favor of ARAMARK Healthcare Support Services, LLC.
    We reverse and remand for further proceedings.
    On June 6, 2014, at about 5:00 p.m., Valerie Hodge, a veteran
    operating room nurse at Holy Redeemer Hospital (the “Hospital”), was
    working after-hours on an on-call basis. As she entered a sub-sterile scrub
    room to retrieve supplies for the next surgery, her feet went out from under
    her, sending her head backward into a tiled wall and her body to the floor.
    Just as she started to slip, she heard a voice yell, “Watch, the floor is wet.”
    Deposition of Valerie Hodge, 1/20/16, at 83.         The voice belonged to
    custodian Chuck Varga, who had just wet mopped the scrub room floor. Mr.
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    Varga went to Nurse Hodge’s aid, but when she was unable to stand, he
    summoned recovery room personnel for assistance. Due to the fall, Nurse
    Hodge suffered disabling back and head injuries that rendered her unable to
    return to work.
    On May 22, 2015, Nurse Hodge filed a negligence action against
    Aramark Healthcare, identified as a Pennsylvania corporation with a principal
    place of business at 1101 Market Street in Philadelphia, and Aramark
    Healthcare Support Services, LLC, a Pennsylvania limited liability company
    with its principal office at the same Market Street address. She alleged that
    the two defendants (collectively “Aramark”) were contractually responsible
    to Holy Redeemer Hospital for housekeeping services, “including the
    cleaning, mopping and maintenance of floor surfaces throughout the
    Hospital,” or the supervision of those services. According to the Complaint,
    Aramark, “acting through its agents, servants, or employees who were
    acting within the course and scope of their employment or through their
    ostensible agents[,]” was responsible for cleaning and mopping the Hospital
    floors, including the floor where Ms. Hodge fell. Complaint, 5/22/15, at ¶8.
    It was alleged that Nurse Hodge slipped on an accumulation of water or
    other cleaning liquid residue negligently left on the floor by the Aramark
    agent or employee. Nurse Hodge also averred that Aramark was negligent
    in failing to train, supervise, and monitor those entrusted with mopping the
    floors, and that it failed to establish and enforce a reliable system to ensure
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    the safety of the floors. Specifically, Aramark did not instruct its staff on the
    proper use of warning signage or use soaps and mops designed to eliminate
    or reduce the risk of slippage.
    Aramark1 filed an answer in which it denied allegations of agency,
    vicarious liability, and negligence, and pled in new matter that it did not owe
    any duty to Nurse Hodge as it did not create or allow a dangerous condition
    of which it had notice or knowledge. Aramark alleged further that it had no
    notice that the plaintiff would not discover the dangerous condition, or fail to
    protect herself from it.         Furthermore, it had no duty as it exercised
    “adequate care” in hiring and training and supervising its employees.
    Aramark Answer and New Matter, at ¶21. Furthermore, Aramark maintained
    that the nature of the condition was open and obvious, that Ms. Hodge either
    knew of it or should have known, with the exercise of reasonable care, but
    that she voluntarily assumed the risk of her own injury.
    After discovery, Aramark moved for summary judgment on March 7,
    2016. Aramark maintained that Ms. Hodge had failed to demonstrate that
    Aramark breached its “limited contractual consulting duty;” “that it had any
    actual or constructive notice of a dangerous condition that caused the
    ____________________________________________
    1 Aramark denied that Aramark Healthcare should be a defendant, and pled
    that the correct name of the entity that provided services at Holy Redeemer
    Hospital was Aramark Healthcare Support Services, LLC, and that it provided
    the services pursuant to a Management Services Agreement. Aramark
    Answer and New Matter, 6/11/15, at ¶¶7, 8.
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    accident;” or that it was the proximate cause of damages to plaintiff. Motion
    for Summary Judgment, 3/7/16, at ¶4. It maintained that Aramark did not
    contract to provide housekeeping services such as cleaning and mopping,
    and such duties were performed by Hospital employees.       Aramark argued
    that its duty of care to a third party was defined by the maintenance
    contract between the company and the owner or possessor of the property.
    Aramark contended that the possessor of land, in this case the Hospital,
    owed the legal duty of care to protect Nurse Hodge and others from
    dangerous conditions on the property of which it should have been aware.
    The Hospital was not relieved of that duty by contracting with Aramark for
    management services, particularly when it retained control over the manner
    the work was performed by its employees. 
    Id. at ¶29.
    In short, Aramark
    contended that the Hospital, not Aramark, created the condition.
    In opposition to summary judgment, Nurse Hodge argued that Mr.
    Varga was negligent in failing to place warning signs after he wet mopped
    the floor, and consequently, she fell. She contended that Mr. Varga was a
    borrowed servant of Aramark as that entity asserted control over the
    manner in which he performed his custodial duties.     Specifically, Aramark
    supervisory personnel trained and supervised the custodians, determined
    what equipment and procedures would be used, implemented safety
    procedures, and reviewed their performance.        In this case, Aramark’s
    Director of Environmental Services disciplined Mr. Varga, mandated that he
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    be in-serviced on safety procedures when performing wet floor tasks, and
    used the incident to reinforce those procedures with the entire custodial
    staff. Thus, Nurse Hodge argued, Aramark was subject to vicarious liability
    for the negligence of its servant, Mr. Varga.
    The trial court granted summary judgment in favor of Aramark. Upon
    reconsideration, the court explained the rationale for its decision. It found
    first that Varga was not a borrowed servant of Aramark.            It concluded
    further that Nurse Hodge failed to proffer evidence that Aramark was
    negligent in its training of custodial employees regarding wet floor safety.2
    Nurse Hodge timely appealed to this Court from the grant of summary
    judgment and she presents the following issues challenging the propriety of
    the trial court’s grant of summary judgment in favor of Aramark:
    1. Where the Plaintiff nurse fell on a freshly mopped hospital floor
    lacking any warning signs, did the Trial Court err in finding there
    were no material issues of fact as to whether a custodian
    employed by the Hospital but supervised by an [on] site
    contractor, Aramark, was a “borrowed servant” of Aramark
    where the record established that Aramark’s supervision
    included not only controlling where and when the custodian was
    to mop floors in the Hospital but also how he was to mop them?
    2. Whether    the Plaintiff fell on a freshly mopped floor lacking any
    warning    signs did the Trial Court err in concluding that the
    mopping     custodian (Varga) was not a borrowed servant of
    Aramark    when it ignored facts establishing that at the time and
    ____________________________________________
    2  The court also rejected the notion that res ipsa loquitur permitted a jury to
    infer negligence from the occurrence of the accident. That issue is not
    before us on appeal.
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    place of the custodian’s negligence he was under the direct
    supervision of an Aramark employee and that Aramark was
    responsible for the training of custodians as to the placement of
    “slippery when wet” warning signs?
    3. Whether the Plaintiff fell on a freshly mopped floor lacking any
    warning signs did the Trial Court err in concluding that no finder
    of fact could reasonably infer that Aramark was responsible for
    training custodians as to the placement of warning signs when
    mopping floors and that such signs needed to be placed
    regardless of the time of day or night in light of the testimony of
    Aramark’s director of housekeeping that (1) failure to place a
    sign was an inexcusable breach of duty, and (2) he issued a
    Disciplinary Notice to Varga stating, inter alia, “failure to perform
    duties as assigned” and requiring “in service” training and (3)
    where, for the next five days, at the daily safety gatherings, the
    custodial staff was reminded by him of this requirement?
    4. Did the [T]rial [C]ourt err in failing to find that a fact finder could
    reasonably infer that contractor Aramark was negligent in its
    training of the custodial staff when custodian Varga, admitted to
    the Aramark chief of environmental services that he did not
    know about the requirement of placing safely signs after
    mopping at any time of day or night, despite the fact that he had
    been with the Hospital for a couple of years, normally worked in
    the area where the fall occurred, and normally worked under the
    direct supervision of an Aramark mid-level supervisor?
    Appellant’s brief at 4-6.
    “[S]ummary judgment is appropriate only in those cases where the
    record clearly demonstrates that there is no genuine issue of material fact
    and that the moving party is entitled to judgment as a matter of law."
    Atcovitz v. Gulph Mills Tennis Club, Inc., 
    812 A.2d 1218
    , 1221 (Pa.
    2002); Pa.R.C.P. No. 1035.2(1).       As this Court reiterated in Nationwide
    Mut. Fire Ins. Co. v. Modern Gas, 
    143 A.3d 412
    , 415 (Pa.Super. 2016)
    (quoting Toy v. Metropolitan Life Ins. Co., 
    928 A.2d 186
    , 195 (Pa.
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    2007)), in considering such a motion, “the trial court must take all facts of
    record and reasonable inferences therefrom in a light most favorable to the
    non-moving party.” “[A]ll doubts as to the existence of a genuine issue of
    material fact” must be resolved against the moving party, and, summary
    judgment may only be granted "where the right to such judgment is clear
    and free from all doubt." 
    Id. On appeal,
    this Court may reverse a grant of summary judgment “if
    there has been an error of law or an abuse of discretion.” Nationwide Mut.
    Fire Ins. 
    Co., supra
    at 415. Our standard of review is de novo because
    “whether there are no genuine issues as to any material fact presents a
    question of law” that we review in the context of the entire record.
    Summers v. Certainteed Corp., 
    997 A.2d 1152
    , 1159 (Pa. 2010). Hence,
    “we need not defer to the determinations made by the lower tribunals.” 
    Id. In short,
    our responsibility as an appellate court is to determine whether
    the record either establishes that the material facts are
    undisputed or contains insufficient evidence of facts to make out
    a prima facie cause of action, such that there is no issue to be
    decided by the fact-finder. If there is evidence that would allow a
    fact-finder to render a verdict in favor of the non-moving party,
    then summary judgment should be denied.
    Babb v. Ctr. Cmty. Hosp., 
    47 A.3d 1214
    , 1223 (Pa.Super. 2012) (citations
    omitted) (quotations omitted).
    Nurse Hodge contends first that Mr. Varga was the borrowed servant
    of Aramark or the dual servant of Aramark and the Hospital as Aramark had
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    the obligation and right to control the manner in which he performed his
    custodial duties. Thus, she maintains that Aramark is subject to vicarious
    liability for its servant’s negligence. At the very least, Nurse Hodge argues,
    the evidence presented a genuine issue of material fact as to who had the
    right to control the custodian that precluded the entry of summary
    judgment.
    Nurse Hodge relies upon Sidekum v. Animal Rescue League, 
    45 A.2d 59
    , 62 (Pa. 1946), and Lane v. Schacht, 
    393 A.2d 1015
    (Pa.Super.
    1978), for the proposition that the right of control of a borrowed servant is a
    jury question so long as different inferences can be drawn from the
    testimony. See also English v. Lehigh Cty. Auth., 
    428 A.2d 1343
    , 1348
    (Pa.Super. 1981) (holding that in making such a determination, “any
    discrepancies in the facts would be for a jury to resolve”). She maintains
    that a jury question was presented herein and offered the following evidence
    in support of her position.
    The Hospital entered into a contract with Aramark for management
    services in three areas: food service, environmental services and room
    revitalization (“EVS”), and linen distribution services.     Included in the
    description of EVS services was the regular maintenance of the floors in the
    area where Nurse Hodge slipped and fell. Under the agreement, the Hospital
    provided and paid all service employees Aramark deemed reasonably
    necessary to provide efficient management services, and Aramark trained
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    and managed those employees in accordance with Hospital policies.
    Management Services Agreement, at 8 ¶ 5(b). An exhibit to the agreement
    further provided that “Aramark will provide an on-site manager for the EVS
    program” who “will coordinate the management and the activities of the
    Service Employees within the EVS Department, which personnel will be
    provided by, and will be employees of” the Hospital. Exhibit EVS at 1. The
    duties   of   the   EVS     manager     included    consulting   and    making
    recommendations of housekeeping services, staffing levels, implementing
    procedures, developing job descriptions and performance standards for each
    position, training, and conducting team meetings for training. 
    Id. The Director
    of Environmental Services for Aramark was Ken Atkins,
    and fifty-three persons reported to him. He testified in his deposition that
    the right to control the manner of mopping the floors rested with the
    custodian’s supervisor, who in this instance was an Aramark employee. He
    also confirmed that management teams, consisting of both Hospital and
    Aramark employees, were responsible for daily, weekly, and monthly
    inspections, and all of these supervisors reported to him.           Mr. Atkins
    prepared the matrix using Aramark software that collected data from
    inspections and used the information for on-the-spot coaching.         Aramark
    also devised and was responsible for completing a custodial housekeeper
    competency form for each employee that was kept by Aramark and, at the
    Hospital’s request, not placed in the Hospital personnel file.
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    Against this backdrop, Nurse Hodge offered evidence that custodian
    Chuck Varga was filling in for another custodian on the evening in question.
    Mr. Varga wet mopped the floor of the scrub room between two operating
    rooms shortly before 5:00 p.m.      He did not place a sign warning that the
    floors were wet because he thought the adjacent operating rooms would not
    be in use for the remainder of the night. When he realized that someone
    was in the freshly mopped area, he called out a warning, but he was too
    late. Nurse Hodge had slipped on the wet floor.
    After attending to Nurse Hodge and obtaining assistance from
    emergency personnel, Mr. Varga went to Aramark’s director Ken Atkins and
    reported what had occurred. He accepted responsibility for failing to erect a
    wet floor sign after mopping the floor.       Mr. Atkins issued an “Employee
    Disciplinary Notice” for a safety violation consisting of Mr. Varga’s “Failure to
    post wet floor signs as assigned.” Employee Disciplinary Notice, 6/6/14, at
    1.   The reason given for disciplinary action was Mr. Varga’s “Failure to
    perform duties as assigned or in a satisfactory manner. ‘Created an unsafe
    condition or contributing to such conditions’” 
    Id. It provided
    further for in-
    service “on safety procedures when performing wet floor tasks” and close
    monitoring of the proper placement of safety cones on wet floors. 
    Id. Aramark characterizes
    its role as that of a consultant making
    recommendations, conducting reviews, and creating a plan.           It disclaims
    responsibility for the actions of Mr. Varga and denies that he was its
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    borrowed servant or that Aramark and the Hospital were joint employers.
    The trial court repeatedly refers to Aramark as a consultant and describes its
    role as “mere supervision.” Trial Court Opinion, 10/25/16, at 8.
    The court examined our sister court’s discussion of the borrowed
    servant doctrine in Red Line Express Co. v. W.C.A.B. (Price), 
    588 A.2d 90
    (Pa.Cmwlth. 1991). In that case, Princeton Management had a contract
    with Red Line Express to provide truck drivers. Claimant was a truck driver
    who was injured after falling off the truck.       Claimant filed two claim
    petitions, one against Princeton and the other against Red Line, and the
    question was which party was the employer for purposes of worker’s
    compensation.    The Commonwealth Court noted preliminarily that, under
    prevailing law, there was a presumption that the claimant was an employee
    of Princeton unless there was evidence that Red Line assumed control over
    the manner in which claimant performed the work.           Although Red Line
    owned the tractor and it remained under its control, and the lease indicated
    that claimant was to remain a Princeton employee, the determining factor
    was who had the power to control claimant’s work and manner of
    performance. The evidence revealed that claimant reported to Princeton and
    Princeton instructed her which route to take on at least one of her deliveries.
    Red Line merely told her where to pick up a load and deliver it, and did not
    instruct her which routes to take or what hours to work.        Moreover, the
    claimant could refuse a Red Line load and Princeton retained the right to
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    instruct her to haul a load for another entity. Princeton retained the right to
    fire the driver. On these facts, our sister court found that Red Line did not
    have the power to control the manner in which the claimant performed her
    work.
    Unlike the facts in Red Line 
    Express, supra
    , herein there was
    considerable evidence that Aramark controlled the manner in which custodial
    services were performed by Mr. Varga.         There was certainly sufficient
    evidence to present a jury question as to whether Mr. Varga was a borrowed
    servant to subject Aramark to vicarious liability for Mr. Varga’s negligence.
    As this Court recently reiterated in Westfield Ins. Co. v. Astra Foods,
    Inc., 
    134 A.3d 1045
    (Pa.Super. 2016) (quoting JFC Temps, Inc. v.
    Workers’ Comp. Appeal Bd. (Lindsay), 
    680 A.2d 862
    , 864 (Pa. 1996),
    The test for determining whether a servant furnished by one
    person to another becomes the employee of the person to whom
    he is loaned is whether he passes under the latter's right of
    control with regard not only to the work to be done but also to
    the manner of performing it. The entity possessing the right to
    control the manner of the performance of the servant's work is
    the employer, irrespective of whether the control is actually
    exercised. Other factors which may be relevant include the right
    to select and discharge the employee and the skill or expertise
    required for the performance of the work. The payment of wages
    may be considered, but is not a determinative factor. Although
    the examination of these factors guides the determination, each
    case must be decided on its own facts.
    There is no dispute that Mr. Varga was hired by the Hospital and that
    the Hospital paid his salary.     While those considerations are factors in
    determining who is the employer, it is the entity with the right to control the
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    manner of the performance of the servant’s work that is the employer. JFC
    Temps, 
    Inc., supra
    .        The Hospital supplied Mr. Varga and its other
    custodial employees to Aramark to enable it to furnish the services
    contemplated under the Management Services Agreement.             Aramark was
    charged with the training, scheduling, daily supervision, and evaluation of
    those employees.     Aramark had the right to control the manner of the
    performance of the servant’s work, as evidenced by the fact that it regularly
    inspected and evaluated the custodians.           Aramark, not the Hospital,
    disciplined Mr. Varga and required that he be in-serviced in safety
    procedures when performing floor tasks and that his performance be
    monitored closely.   Aramark notified Mr. Varga that failure to follow these
    directives “will result in further discipline.”   Employee Disciplinary Notice,
    6/6/14, at 1. For five days after the incident, Aramark directed supervisors
    and managers to review floor safety with the other custodians.
    Aramark places too much reliance upon the terms of the Management
    Services Agreement.      The proviso that employees like Mr. Varga were
    employees of the Hospital, not Aramark, does not control our determination.
    See Red Line Express 
    Co., supra
    (lease provision conferring lessee with
    exclusive possession and control of equipment was not conclusive in
    determining who was employer). Even Aramark concedes that Nurse Hodge
    was not bound by that contract and was free to plead and prove facts
    showing a different relationship. See Appellee’s brief at 35.
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    Viewing the evidence in the light most favorable to Nurse Hodge, as
    the non-moving party, we are persuaded that a reasonable juror could
    conclude that Aramark controlled the daily performance of the custodians’
    duties. One can reasonably infer from Aramark’s disciplinary action against
    Mr. Varga that it had the right to discipline errant employees. Nurse Hodge
    has offered sufficient proof that Mr. Varga was acting as Aramark’s servant
    when he negligently failed to place signs warning of the dangerous wet floors
    to subject that entity to vicarious liability for the negligence of its servant in
    negligently creating the hazardous condition. We find that there are genuine
    issues of material fact surrounding the issue of whether Mr. Varga was the
    borrowed servant of Aramark at the time Nurse Hodge was injured to
    preclude the entry of summary judgment.
    Based on our disposition of Nurse Hodge’s first and second issues, we
    need not reach her two remaining issues.          If Nurse Hodge is ultimately
    successful on her borrowed servant/dual employer theory, she would not
    need to prove that Aramark was negligent in its supervision and training of
    Mr. Varga regarding the placement of warning signs to indicate wet mopped
    floors as Aramark would be vicariously liable for its servant’s admitted
    negligence.
    Failing that, Nurse Hodge must establish that Aramark owed her a
    duty, that it breached that duty, and that the breach resulted in injury and
    actual damages.      Although Aramark asserts there was no evidence of
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    inadequate training or supervision regarding the universal placement of
    warning signs to indicate wet floors, we disagree. Mr. Atkins testified that,
    regardless of the time of day or night, it is a safety violation not to place a
    sign warning of wet floors. Deposition of Ken Atkins, 1/20/16, at 38. It was
    unacceptable according to Mr. Atkins for Mr. Varga to believe that placement
    of a warning sign was not required after hours or when the area was
    unoccupied.    
    Id. Mr. Varga’s
    admission that he thought a sign was
    unnecessary in these circumstances supports a reasonable inference that
    Aramark’s training and supervision was deficient in this regard.
    For the foregoing reasons, we reverse the order granting summary
    judgment in favor of Aramark and remand for further proceedings consistent
    herewith.
    Order reversed. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/5/2017
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