# Sharp v. Aramark Food Service Corporation

> District Court, S.D. West Virginia · February 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10729546

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** February 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729546

## How later opinions describe it (automated extraction)

- noting that, under West Virginia law, extrinsic evidence may be considered to aid in the construction of contract where contract language is ambiguous
- finding that diffuse edema, which resulted from failure to provide the inmate a mattress, did not constitute a serious or significant physical injury where it was treated with Tylenol and Lassix and resolved within eleven days of the inmate reporting it to staff

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

WILLIAM SHARP,

Plaintiff,

v. CIVIL ACTION NO. 2:20-cv-00774

ARAMARK FOOD SERVICES
CORPORATION and KATHY HUBB,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Amended Complaint (Document 23), Defendant Norma C.
Hebb’s Motion to Dismiss (Document 11), Memorandum in Support of Defendant Norma C.
Hebb’s Motion to Dismiss (Document 12), Supplement to Defendant Norma C. Hebb’s Motion to
Dismiss (Document 16), Plaintiff William Sharp’s Response to Defendant Norma C. Hebb’s
Motion to Dismiss (Document 18), Memorandum in Reply to Plaintiff’s Response to Defendant
Norma C. Hebb’s Motion to Dismiss (Document 21), and all attendant documentation. For the
reasons stated herein, the Court finds that the motion to dismiss should be granted in part and
denied in part.
FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiff originally filed his complaint in the Circuit Court of Kanawha County, West
Virginia, on September 4, 2020. The matter was removed to this Court on November 25, 2020.
The Plaintiff filed an amended complaint, correcting a misnomer and supplementing factual
material, on February 11, 2021. The amended complaint alleges that the Defendants failed to
provide the Plaintiff with protective gloves, which resulted in serious chemical burns on the
Plaintiff’s hands from contact with dishwasher detergent.
In particular, the Plaintiff asserts that while he was an inmate at the Denmar Correctional
Center in Pocahontas County, West Virginia, he worked under the authority and supervision of

Defendant Hebb. Defendant Hebb was an agent and employee of Defendant Aramark who
provided kitchen services. In the fall of 2019, the Plaintiff complained to Defendant Hebb that
he required protective gloves to safely place detergent into the dishwasher. The Plaintiff made
numerous complaints, and Defendant Hebb agreed gloves were necessary.
Although the Defendants were informed of the need to provide protective gloves, the
Defendants failed to do so. Thus, the Plaintiff argues that the Defendants failed to provide the
protective gear that could have prevented the Plaintiff’s injuries. The Plaintiff further argues that,
as a result of the Defendants’ conduct, he “suffered serious chemical burns from which he still
suffers today” and have also caused “severe emotional and mental distress as well as severe pain
and suffering.” (Amend. Compl. at ¶¶ 9-10.)

Based on these allegations, the Plaintiff asserts claims for negligent/reckless conduct,
vicarious liability, premises liability, negligent/reckless/wanton conduct and deliberate
indifference in violation of the Eighth Amendment of the United States Constitution, pursuant to
42 U.S.C. § 1983. The Plaintiff requests damages for pain and suffering, medical expenses,
emotional and mental distress, disfigurement, punitive damages, court costs, pre-judgment and
post-judgment interest and attorney’s fees and expenses.

2
Defendant Hebb filed her motion to dismiss on January 12, 2021. The Plaintiff filed a
response on January 26, 2021. The Defendant filed a reply on February 2, 2021. The matter is
ripe for review.
STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544,

555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further
factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,

3
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate
facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint

states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION

A. Section 1983 Claim
Under Section 1983, a plaintiff may sue an official acting “under color of” state law for an
alleged deprivation of a federal constitutional right. Williamson v. Stirling, 912 F.3d 154, 171
(4th Cir. 2018). The Eighth Amendment “protects inmates from inhumane treatment and
4
conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The
Eighth Amendment also imposes duties upon prison officials to “ensure that inmates receive
adequate food, clothing, shelter and medical care,” and reasonably guarantees the safety of
inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To establish a violation of the Eighth

Amendment in the context of conditions of confinement, an inmate must allege (1) a “sufficiently
serious” deprivation under an objective standard by showing that the conditions of confinement
have imposed a “serious or significant physical or emotional injury,” and (2) that prison official
acted with “deliberate indifference” to the inmate’s health and safety under a subjective standard
by knowing and disregarding an excessive risk to the health and safety of the inmate. Wilson v.
Seiter, 501 U.S. 294, 297-99 (1991); Odom v. South Caroline Dept. of Corrections, 349 F.3d 765,
779 (4th Cir. 2003); Farmer, 511 U.S. at 837 (1979).
i. Sufficiently Serious Deprivation
Whether a deprivation of rights qualifies as a serious or significant physical or emotional
injury is an “objective inquiry” that “requires a court to assess whether society considers the risk

that the prisoner complains of to be so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016)
(quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)). The Plaintiff asserts that he “suffered
serious chemical burns from which he still suffers today” and which have caused “severe
emotional and mental distress as well as severe pain and suffering.” (Amend. Compl. at ¶¶ 9-10.)
A review of the case law regarding what constitutes a serious or significant physical or
emotion injury reveals that serious chemical burns from which the Plaintiff has suffered for over
a year fall somewhere in the middle of the spectrum. Nelson, 677 Fed.Appx. at 826 (finding that

5
a facial fracture constituted a serious or significant physical injury); Parker v. Stevenson, 625
Fed.Appx. 196, 200 (4th Cir. 2015) (finding that diffuse edema, which resulted from failure to
provide the inmate a mattress, did not constitute a serious or significant physical injury where it
was treated with Tylenol and Lassix and resolved within eleven days of the inmate reporting it to

staff); Rish v. Johnson, 131 F.3d 1092 (4th Cir. 1997) (finding that failure to provide appropriate
protective equipment and clothing to safeguard inmates from the risk of contracting infectious
diseases during the performance of their duties in cleaning blood and other body fluids could
qualify as grounds for serious or significant physical injury).
The Plaintiff’s alleged facts are most analogous to the Rish case, in which the plaintiffs
were denied protective equipment, exposing them to risk of contracting infectious disease. Given
the Fourth Circuit’s prior determination that failure to provide such protective equipment may
qualify as grounds for serious or significant physical injury, the Court finds that the Plaintiff has
alleged a sufficiently serious deprivation to survive the motion to dismiss.
ii. Deliberate Indifference

In order to establish deliberate indifference, “the plaintiff must affirmatively show that the
official charged acted personally in the deprivation of the plaintiff’s rights.” Williamson, 912
F.3d at 171 (quoting Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (brackets omitted).
“Importantly, mere knowledge of such a deprivation does not suffice.” Id. Nevertheless, even
under this subjective standard, a prison official cannot hide behind an excuse that he was unaware
of a risk, no matter how obvious.” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting
Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)). “A prison official is
deliberately indifferent to a substantial risk of harm to a prisoner when that official knows of and

6
disregards the risk.” Nelson v. Henthorn, 667 Fed.Appx. 823, 826 (4th Cir. 2017) (quoting
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004)) (internal quotation marks and
brackets omitted). The Fourth Circuit has stated,
Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence, and a
factfinder may conclude that a prison official knew of a substantial
risk from the very fact that a risk was obvious.

Id. (quoting Farmer, 511 U.S. at 842).
In this case, the Plaintiff has asserted that he repeatedly informed Defendant Hebb of the
need for gloves, that she was required by her position to provides gloves for the benefit of the
Plaintiff, and that she refused to do so despite being put on notice. Whether the Defendant had
sufficient knowledge is a question of fact. The Plaintiff has alleged that Defendant Hebb knew
of, and yet, disregarded the risk posed by failing to provide protective gloves. Therefore,
accepting the Plaintiff’s allegations to be true, the Court finds that the motion to dismiss should be
denied with respect to the § 1983 claim.
B. Negligence
The Plaintiff has also asserted claims against the Defendant Hebb for negligent/reckless
conduct. In particular, the Plaintiff asserts that the Defendant failed to ensure the kitchen was
safe to work in, failed to provide the Plaintiff the proper protective clothing, allowed the Plaintiff
to work under conditions she knew were hazardous and failed to properly supervise routine
cleaning, housekeeping, and sanitation of the food preparation service. Defendant Hebb asserts
that the Plaintiff has failed to identify a duty she owed to the Plaintiff and, therefore, the Plaintiff’s
claim for negligence must be dismissed.
7
To establish a claim for negligence, a plaintiff “must prove that the defendant owed the
plaintiff some duty of care; that by some act or omission the defendant breached that duty; and
that the act or omission proximately caused some injury to the plaintiff that is compensable by
damages.” Hersh v. E-T Enterprises, Ltd. P’ship, 752 S.E.2d 336, 341 (W. Va. 2013). The West

Virginia Supreme Court has developed a test for determining whether a duty existed:
The ultimate test of the existence of a duty to use care is found in the
foreseeability that harm may result if it is not exercised. The test is,
would the ordinary man in the defendant’s position, knowing what he
knew or should have known, anticipate that harm of the general nature
of that suffered was likely to result?

Id. at Syl. pt. 3 (quoting Syl. pt. 3, Sewell v. Gregory, 371 S.E.2d 82 (1988)). “[T]he existence of
a duty also involves policy considerations underlying the core issue of the scope of the legal
system’s protection.” Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va. 2000) (quoting Robertson
v. LeMaster, 301 S.E.2d 563, 586 (W. Va. 1983)). “Such considerations include the likelihood of
injury, the magnitude of the burden of guarding against it, and the consequences of placing that
burden on the defendant.” Id. Whether a defendant owes a duty to the plaintiff is a question of
law for the court to decide. Id. at Syl. pt. 5.
In the instant case, the respective duties of Defendant Aramark and the WVDOC are set
forth in the RFQ. The RFQ provides that the Defendant will provide “management of the daily
food service operation; . . . sanitation of food service area to include the main dining area;
establishing food and supply needs; [and] training of food service staff and inmates assigned to
kitchen and dining room areas . . . .” (Document 11-3 at 000019.) Moreover, the RFQ provides
that the Defendant “will be required to provide operational management; to include staff, and all
necessary supplies.” (Document 11-3 at 000019.) The RFQ provides that “The facility will have
8
the final authority regarding inmate workers and will be responsible for inmate wages, uniform,
and any training required by the State Health Department to work as a food handler. The Vendor
shall be responsible for training the inmate workers to their assigned task(s) and ensuring all safety
standards are met.” (Document 11-3 at 000023.)

The RFQ further provides that the Defendant Aramark is responsible for “the cost and
expenses of . . . [a]ll paper, Styrofoam, plastic, gloves, aluminum foils, and any other disposable
products used in food service operation.” (Document 11-3 at 000027.) The RFQ states,
Vendor shall be responsible for the supervision of routine cleaning,
housekeeping, and sanitation in the food preparation service and
storage areas. Vendor shall insure that high standards of sanitation
are maintained and will be responsible for the supervision of trash
and garbage removal from the dining and kitchen areas to designated
site locations. Agency facilities herein listed will supply all
necessary cleaning and sanitation supplies for the food service
operation.

(Document 11-3 at 000023.) The Inmate Work Agreement signed by the Plaintiff states, “I will
approach my job/class safely, use proper equipment and practice good housekeeping.”
(Document 16-1.)
The amended complaint alleges that the “Plaintiff worked under the authority and
supervision of Defendant Hebb and Aramark who acted, at all times pertinent hereto, as an agent
and employee of defendant Aramark who provided kitchen services.” (Amend. Compl. ¶ 6.)
The amended complaint further alleges,
In the fall of 2019, plaintiff and others complained to Defendant
Hebb that plaintiff required protective gloves to safely place
detergent into the dishwasher. Plaintiff complained numerous
times and Hebb agreed that the gloves were necessary. Despite
said knowledge of the unsafe condition, defendant Hebb did not
provide plaintiff the gloves he requested. This denial resulted in
plaintiff being forced to work in the unsafe conditions. Moreover,
9
the RFQ required that Aramark provide gloves to individuals
working in the kitchen. The failure of defendants to carry out their
duties as supervisors and as set forth herein proximately caused or
contributed to plaintiff’s severe burns and scarring.

(Amend. Compl. ¶ 7.)
As it relates to the provision of gloves, under the facts alleged here, the Court finds that the
terms of the RFQ are ambiguous. The RFQ clearly indicates that the Defendant Aramark is
responsible for the cost and expense of gloves. It also clearly requires the DOC to supply all
necessary cleaning and sanitation supplies for food service operation. Importantly, however, it
further states that the Defendant Aramark “has the responsibility of routine cleaning . . . in the food
preparation service . . .” (Document 11-3 at 000023.)
Defendant Hebb argues that she had no duty to provide gloves to inmates. However, the
Court finds that the duty to supervise all routine cleaning and sanitation in food preparation could
reasonably include a duty to provide gloves to an inmate, who complains of chemical irritants
while cleaning, in food preparation and subject to the Defendant’s supervision. Equally, the
DOC’s duty to supply all necessary cleaning and sanitation supplies for food service could
reasonably include gloves. Having found an ambiguity in the language of the RFQ, as it relates
to the duty to provide gloves, the Court finds it appropriate to consider evidence outside the four
walls of the RFQ, including the parties’ actual practice. Equinor USA Onshore Properties Inc. v.
Pine Res., LLC, 917 F.3d 807, 813 (4th Cir. 2019) (noting that, under West Virginia law, extrinsic
evidence may be considered to aid in the construction of contract where contract language is
ambiguous).
Therefore, the Court finds discovery related to the provision of gloves, under the facts
presented here, would be helpful to the determination of the existence of duty. Since discovery
10
is necessary, the matter is more appropriately resolved at the summary judgment stage of litigation.
Accordingly, the Defendant’s motion to dismiss the claim of negligence/reckless conduct and
vicarious liability should be held in abeyance pending discovery.
C. Premises Liability

The Plaintiff also asserts that Defendant Hebb had authority and control over the kitchen
and was responsible for maintaining premises that were safe and free of hazards. The Plaintiff
asserts that the Defendant, however, knowingly, negligently, recklessly and/or wantonly failed to
follow protection policies and procedures and exposed the Plaintiff to dangerous premises that
ultimately and proximately caused the Plaintiff’s injury. The Defendant argues that the Plaintiff
failed to allege any facts that pertain to the premises which would allow for a claim of premises
liability to proceed and also argues that the danger posed by the dishwashing detergent was open
and obvious.
The West Virginia Supreme Court has held that,
In determining whether a defendant in a premises liability case met his
or her burden of reasonable care under the circumstances to all non-
trespassing entrants, the trier of fact must consider (1) the foreseeability
that an injury might occur; (2) the severity of injury; (3) the time,
manner and circumstances under which the injured party entered the
premises; (4) the normal or expected use made of the premises; and (5)
the magnitude of the burden placed upon the defendant to guard against
injury.

Mallet v. Pickens, 522 S.E.2d 436, 447 (W. Va. 1999). Foreseeability is a dispositive element in
premise liability cases because “before an owner or occupier may be held liable for negligence, he
must have had actual or constructive knowledge of the defective condition which caused the
injury.” Neely v. Belk Inc., 668 S.E.2d 189, (W. Va. 2008) (quoting Hawkins v. United States
Sports Assoc., Inc., 633 S.E.2d 31, 35 (2006)) (internal quotation marks omitted). Moreover,
11
premises liability is limited to the extent that the dangers are “open, obvious, reasonably apparent
or as well known to the person injured as they are to the owner or occupant.” W. Va. Code § 55-
7-28(a). A plaintiff cannot recover for injuries that were sustained from open and obvious dangers
because an owner, lessee, or occupant owes no duty of care to protect others from such dangers.

Id.
As an initial matter, it is not clear that dishwasher detergent has a sufficient nexus to the
premises to establish a cause of action for premises liability. As this district has previously noted,
“premises liability typically involves some form of hazard, danger or nuisance on property causing
an injury.” Porter v. W. Va. Regional Jail Corr. Facility Auth., No. 3:14-26583, 2015 WL
5698514, *5 (S.D. W. Va. Sept. 28, 2015) (Chambers, J) (finding that a claim for premises liability
failed where “Plaintiff cites no cases, and the Court did not find any cases, to support his theory
that a failure to provide medication can establish a cause of action for premises liability.”).
Accepting the Plaintiff’s allegations to be true, this Court has found no legal precedent tending to
establish that injuries sustained from dishwasher detergent can establish a cause of action for

premises liability. Accordingly, the Court finds that the claim for premises liability should be
dismissed.
CONCLUSION

WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Defendant Norma C. Hebb’s Motion to Dismiss (Document 11) be GRANTED IN PART
AND DENIED IN PART, as more fully set out herein. Specifically, the Court ORDERS that
Count IV against the Defendant be DISMISSED.

12
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: February 12, 2021

IRENE C. G
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA

13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729546. Public record. Not legal advice.