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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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