• Superior Court reverses grant of summary judgment in favor of food packing facility holding that there were issues of material fact as to the control of the Plaintiff at the time of injury precluding judgment that he was a borrowed employee.
  • July 17, 2018
  • Background

    Plaintiff Gardner was employed by DelVal Staffing, a temporary employment agency. Gardner was assigned to work at MIA as a freezer/packer. His job consisted of removing food from a walk-in freezer to be packed for shipment. While performing these tasks, he fell on a slippery spot in or near the freezer and sustained injuries. He received workers compensation benefits from DelVal and filed a complaint alleging negligence against MIA. MIA moved for summary judgment claiming Gardner was a “borrowed employee” and was under MIA’s control and, therefore, MIA was immune from suit under the Workers Compensation Act.


    In reversing summary judgment, the Superior Court focused on portions of Gardner’s testimony that DelVal transported him to MIA for work, that he believed he was given clothes and equipment from DelVal and that he was given some instruction from a DelVal supervisor. Moreover, DelVal supervisors were present when MIA employees demonstrated how the work was to be performed. Consequently, the Superior Court determined that it was not clear whether Gardner and other DelVal compatriots were under the control of MIA supervisors at the time of injury. Summary judgment was reversed and the matter remanded for trial. In analyzing borrowed servant issues, it may be helpful to completely rule out any control that a “former” employer may have over a Plaintiff so as to address the concerns raised by the Superior Court in this opinion.

    Questions about this case can be directed to Hugh O’Neill, at (717) 255-7629 or [email protected]