The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
SCOTT E. CLEMENT, an individual, Case No. 3:18-cv-586-JR
Plaintiff, ORDER
v.
ECOLAB, INC., a Delaware corporation;
and DOES I through V,
Defendants.
_________________________
Russo, Magistrate Judge:
Plaintiff Scott Clement brings this action against Ecolab, Inc. and five Doe defendants
alleging negligence and breach of contract. On September 20, 2018, the Court dismissed
plaintiff’s negligence claim with prejudice. Opinion and Order (ECF #33). Plaintiff
subsequently moved to amend his complaint to add an additional breach of contract claim and
for reconsideration of his negligence claim. The Court granted the motion to amend and
affirmed dismissal of the negligence claim. Order (ECF #47). Although plaintiff’s amended
complaint still includes a claim for negligence, that claim has been dismissed with prejudice and
the case proceeds on the breach of contract claim only. Defendant Ecolab now moves for
summary judgment on all claims for damages against it.
BACKGROUND
As the Court has previously noted:
Plaintiff alleges he is the general manager of a McCormick & Schmick's
restaurant (the "Restaurant") owned by Landry's. Inc. ("Landry's"), and that
Landry's had a contract with Ecolab pursuant to which Ecolab was obliged to
provide pest control services at the Restaurant. Plaintiff further alleges that under
the contract, Ecolab agreed to respond by telephone to requests for service at the
Restaurant within one hour, and to arrive at the restaurant to provide requested
services within 24 hours.
Plaintiff alleges Ecolab failed to respond to requests for pest-control
services in connection with the presence of spiders at the restaurant in July and
August 2017. As a result, plaintiff asserts he cleared out spider webs at the
restaurant by himself, during which he was bitten by a brown recluse spider,
causing him to suffer severe injury.
Id.at pp. 1-2.
Despite the absence of spiders from the list of included pests to be eliminated in the
written contract, the Court allowed plaintiff to assert an implied contract or modification to the
contract to include spider-related services. Id. at pp. 4-5. Accordingly, plaintiff alleges two
counts for breach of contract. Pursuant to count 1, plaintiff alleges he was the intended
beneficiary of the pest elimination agreement between Ecolab and Landry’s and that by failing to
timely respond to plaintiff’s requests for services at the restaurant and failing to timely and
adequately perform the requested services at the restaurant, Ecolab breached its contractual
obligations, promises, and guarantees. First Amended Complaint (ECF #48) at ¶ 36. Pursuant to
count 2, plaintiff alleges:
Through their oral discussions and course of performance during 2016 and 2017
as alleged herein, Ecolab and Plaintiff (on behalf of the Restaurant) formed a
binding and enforceable contract under which (in exchange for payment) Ecolab
agreed to immediately respond to requests for pest prevention and elimination
services, including spiders, at the Restaurant and to promptly perform such
services as part of Ecolab’s routine periodic visits and on an interim basis as
requested. Ecolab also agreed to perform such services, including spider-related
services, so as to effectively prevent and eliminate the infestation of spiders at the
Restaurant, and particularly in the exterior entry areas, awnings and columns
adjacent to where guests and employees would be while dining outdoors. Such
agreement was confirmed orally, through the parties’ actions and course of
conduct, and in the written service reports and invoices from Ecolab that were
signed by Ecolab representatives… In the alternative, such oral discussions and
course of performance … constituted a modification to the Agreement to include
spiders within the scope of the pests to be eliminated and prevented at the
Restaurant.
….
Ecolab was paid for the spider-related services performed at the Restaurant, and
Plaintiff and the Restaurant otherwise performed all conditions and obligations on
their part to be performed under the contract, or such conditions and obligations
have been excused.
By failing to timely respond to Plaintiff’s requests for spider-related services at
the Restaurant and failing to timely and adequately perform the requested services
for spiders at the Restaurant, Ecolab breached its contractual obligations and
promises under their contract.
Id. at ¶¶ 38-41.
Plaintiff also alleges that
On or about August 25, 2017, because Ecolab had not responded to
Plaintiff’s requests and had not performed the pest elimination and prevention
services (including spraying for spiders) at the Restaurant, and fearing for the
health and safety of customers, employees and visitors, Plaintiff undertook to
clear out the multiple spider webs and other evidence of pests in and around the
Restaurant. Had Ecolab been responsive to the requests of Plaintiff and Restaurant
staff to treat for spiders and had Ecolab promptly and competently performed the
requested and agreed spider-related prevention and elimination services, Plaintiff
would not have endeavored to address the spider issue himself.
While Plaintiff was attending to the matters at the Restaurant that Ecolab
had failed to address, Plaintiff was bitten by a spider on his leg. The spider bite
caused Plaintiff substantial personal injury, pain, suffering and emotional distress.
When the area of the bite became blistered, red and more painful in the days after
the bite, Plaintiff was treated at an urgent care facility and was prescribed
medication.
Thereafter, the area of the bite wound became more painful and swollen,
and Plaintiff experienced associated weakness, fever, nausea and other physical
ailments, which required Plaintiff to be hospitalized. Plaintiff was hospitalized for
three days and two nights, during which he received various types of medical
attention and medication.
As a direct, proximate and foreseeable consequence of his injuries,
Plaintiff was unable to and did not return to work at the Restaurant for an
extended period of time, and suffered lost wages as a result.
The foregoing has resulted in Plaintiff suffering economic damages and
losses in an amount to be proven at trial. His damages include medical bills and
related costs and expenses currently totaling approximately $25,000, lost wages
while he was recovering from the injuries in the amount of approximately $3,000,
lost bonus of approximately $3,000, and loss of approximately two weeks’
vacation pay in the amount of approximately $4,500. Plaintiff has also suffered
non-economic losses and damages, including pain, suffering, anxiety and
emotional distress, in an amount to be proven at trial.
Id. at ¶¶21-25.
Defendant moves for summary judgment asserting the contractual disclaimers in the
services agreement disclaim any liability for consequential, incidental, and/or special damages.
DISCUSSION
The written pest elimination services agreement between Landry’s and Ecolab limited
liability as follows:
ALL PESTS (GENERAL PROVISIONS).
Pests Subject to Agreement. While this document applies to all services
performed by Ecolab's Pest Elimination Division, this document does not, by
itself, create an Ecolab obligation to treat for each of the pests discussed in this
document. Ecolab is only responsible for treating those specific pests which the
parties have agreed to in writing. If Ecolab treats for a pest not specifically listed
in this document, Customer's only remedy for a new or continued problem
relating to that pest will be a free retreatment.
….
LIMITATION OF LIABILITY. EXCEPT FOR THE EXPRESS WARRANTIES
OR GUARANTEES CONTAINED IN THIS DOCUMENT ALL OTHER
WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WRITTEN OR
VERBAL, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
"CUSTOMER INDEMNIFICATION," ECOLAB ALSO DISCLAIMS
LIABILITY TO CUSTOMER AND ALL OTHERS FOR ALL
CONSEQUENTIAL, INCIDENTAL, AND/OR SPECIAL DAMAGES IN ANY
WAY RELATED TO ECOLAB'S SERVICES OR PRODUCTS. CUSTOMER
ACKNOWLEDGES AND AGREES THAT ECOLAB IS NOT RESPONSIBLE
FOR ANY DAMAGE RELATED TO ANY PEST (WHETHER THE PEST IS
SPECIFICALLY REFERENCED IN THIS DOCUMENT OR NOT) FOR ANY
REASON WHENEVER CAUSED. THIS PROVISION WILL SURVIVE ANY
TERMINATION OR EXPIRATION OF ANY AGREEMENT OR
RELATIONSHIP BETWEEN ECOLAB AND CUSTOMER.
Pest Elimination Services Agreement (ECF #24-1) at pp. 24, 27-28.
Defendant asserts these provisions exclude the damages sought by plaintiff regardless of
whether the claim is brought under the agreement as written or based on an oral modification to
the agreement. Plaintiff contends the clauses are overbroad and unenforceable, contravene
public policy, and do not apply to the circumstances in this case where the breach is based not on
the performance of a service, but rather the failure to provide service. As noted in the Court’s
previous orders in this case, Minnesota law applies.
A. Enforceability of the of the Exculpatory Clause
“A clause exonerating a party from liability will be strictly construed against the
benefited party. If the clause is either ambiguous1 in scope or purports to release the benefited
party from liability for intentional, willful or wanton acts, it will not be enforced.” Schlobohm v.
Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).
The Exculpatory clause in this case is very broad and purports to limit liability for all the
listed damages in any way related to Ecolab’s products or services. Accordingly, the clause
could reasonably be construed as releasing liability for intentional or wanton acts. However, in
1 In the section of plaintiff’s brief directed to the unenforceability of the exculpatory clause,
plaintiff does not argue the clause is ambiguous. However, with respect to his argument that the
clause does not apply to the failure to perform services, plaintiff asserts the clause titled, “Pests
Subject to Agreement” is ambiguous. The Court will address ambiguity with respect to
plaintiff’s argument that the “Pests Subject to Agreement” clause does not apply to the failure to
timely respond to the service call.
this case, plaintiff has not alleged the claimed breach involved any intentional, willful, or wanton
act on the part of Ecolab.2
Some courts confronting similarly overbroad exculpatory provisions do not, as
counterclaimants request, conclude that the entire provision is unenforceable;
rather, they limit its applicability to claims which do not implicate willful and
wanton negligence or intentional behavior. See, e.g., Honeywell, 43 F.Supp.2d at
1080–81. Others, however, conclude that the entire exculpatory clause is
inapplicable. See, e.g., Wu ex rel. Tien v. Shattuck–St. Mary's Sch., 393
F.Supp.2d 831, 837–38 (D.Minn.2005). The Court concludes that limiting, rather
than entirely voiding, the provision is more reasonable. It would make little sense
to conclude ADT could have exculpated itself from negligence claims, but that by
exculpating itself from claims of both negligence and gross negligence it
exculpated itself from neither.
ADT Sec. Servs., Inc. v. Swenson, 276 F.R.D. 278, 301 (D. Minn. 2011). This Court similarly
concludes the better approach is to limit the applicability of broad exculpatory clauses to claims
which do not implicate willful, wanton, or intentional behavior rather than finding the entire
clause void. See, e.g., Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn. Ct.
App. 2006) (Even though the language was extremely broad so as to purportedly include claims
2 Plaintiff does assert in his response that Ecolab specialists instructed restaurant employees to
knock down spider webs after treatment and that such instruction in combination with an alleged
failure to show up to kill the spiders amounts to reckless conduct. To the extent plaintiff alleges
this claim against Ecolab and not a Doe defendant, however, one of the main elements in willful
and wanton negligence is knowledge or consciousness of the one charged with such negligence
of the peril faced by the one injured. Raths v. Sherwood, 195 Minn. 225, 230, 262 N.W. 563,
566 (1935). While wanton negligence can be stablished by a reckless disregard of the safety of
the person or property of another by failing, after discovering the peril, to exercise ordinary care
to prevent the impending injury, Alger, Smith & Co. v. Duluth-Superior Traction Co., 93 Minn.
314, 315, 101 N.W. 298, 299 (1904), here plaintiff presents no evidence that Ecolab was aware
of the presence of any brown recluse spiders. Defendant notes that according to the Oregon
Department of Agriculture, the brown recluse spider “does not occur in Oregon, despite
reports to the contrary.” Oregon Spiders Facts & Fiction, available at
https://www.oregon.gov/ODA/programs/IPPM/Pages/OregonSpiders.aspx (Oregon Spiders
Facts and Fiction). The Department further notes most spiders in Oregon are not known to
be dangerous. Id. There is no evidence in the record from which a fact finder could
determine that Ecolab engaged in wanton behavior with respect to the spider bite suffered by
plaintiff.
arising from intentional acts, the unmistakable intent of the parties to such an agreement is that
defendant would at least not be held liable for acts of negligence.). Accordingly, the clause is
enforceable with respect to claims that do not involve intentional, willful or wanton acts.
B. Public Policy
If an exculpatory clause is not ambiguous and appropriately limited to a release of
liability arising out of negligence, Minnesota courts next consider whether enforcement
contravenes public policy.
Courts [approach] the policy considerations in determining the validity of
exculpatory clauses on an ad hoc case-by-case basis. An examination of the cases
demonstrates the emergence of a two-prong test used by the courts in analyzing
the policy considerations. Before enforcing an exculpatory clause, both prongs of
the test are examined, to-wit: (1) whether there was a disparity of bargaining
power between the parties (in terms of a compulsion to sign a contract containing
an unacceptable provision and the lack of ability to negotiate elimination of the
unacceptable provision) and (2) the types of services being offered or provided
(taking into consideration whether it is a public or essential service).
Schlobohm, 326 N.W.2d at 923.
Plaintiff notes that Ecolab was the exclusive pest elimination service provider for all
Landrys’ restaurants across the country and that the restaurant that employed him had no
practical alternative for service. Nonetheless, plaintiff concedes there is no clear disparity in
bargaining power. Opposition to Motion for Summary Judgement (ECF #61) at p. 11. However,
plaintiff asserts pest elimination services provided to restaurants are of great importance to the
public due to serious and obvious health, safety, and sanitary risks. Plaintiff further asserts the
chemical treatments used by Ecolab “are presumably subject to several state and federal
regulations[, and Ecolab] promises that it will ‘conform to applicable federal and state laws and
regulations.’” Id. at (citing Pest Elimination Services Agreement (ECF #24-1) at p. 3).
The Schlobohm court referenced the California decision of Tunkl v. Regents of
University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), to analyze the
public interest for purposes of exculpatory clauses. Schlobohm, 326 N.W.2d at 924.
In placing particular contracts within or without the category of those affected
with a public interest, the courts have revealed a rough outline of that type of
transaction in which exculpatory provisions will be held invalid. Thus, the
attempted but invalid exemption involves a transaction which exhibits some or all
of the following characteristics. It concerns a business of a type generally thought
suitable for public regulation. [footnote omitted] The party seeking exculpation is
engaged in performing a service of great importance to the public, [footnote
omitted] which is often a matter of practical necessity for some members of the
public. [footnote omitted] The party holds himself out as willing to perform this
service for any member of the public who seeks it, or at least for any member
coming within certain established standards. [footnote omitted] As a result of the
essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength
against any member of the public who seeks his services. [footnote omitted] In
exercising a superior bargaining power the party confronts the public with a
standardized adhesion contract of exculpation, [footnote omitted] and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence.[footnote omitted] Finally, as a result of the
transaction, the person or property of the purchaser is placed under the control of
the seller, [footnote omitted] subject to the risk of carelessness by the seller or his
agents.
Tunkl, 60 Cal.2d at 98–101, 383 P.2d at 444–46. Here, plaintiff vaguely touches upon regulation
of the chemicals used by Ecolab but does not show that pest elimination services themselves are
regulated. The fact that some regulation exists does not establish that the business affects the
public interest. See, e.g., Arrowhead Elec. Co-op., Inc. v. LTV Steel Min. Co., 568 N.W.2d 875,
879 (Min.App.1997) (holding that even though defendant's maintenance of ash heap was subject
to regulation by the Minnesota Pollution Control Agency, the parties' contract did not touch upon
public interests); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727
(Min.App.1986) (concluding that the presence of federal regulations around parachute jumping
did not render void an exculpatory clause in a skydiving club's agreement).
In addition, while pest elimination services are certainly helpful to the food services
industry, such service is not of great importance to the public bordering on necessity. Ecolab
does not hold itself out as willing to perform the service for any member of the public who seeks
it. Ecolab does not possess a decisive advantage of bargaining strength against any member of
the public who seeks its service, and the purchaser of the service is not under the control of
Ecolab. Moreover, Ecolab has agreed to indemnify Landry’s for claims made by members of the
public for any negligent acts. Thus, to the extent the service is important to the public to prevent
pest-related injuries, the exculpatory clause does not operate to prevent patrons of the restaurant
from seeking compensation for any negligent act. Accordingly, the clause does not contravene
public policy.
C. Applicability to Failure to Provide Service
Plaintiff argues the limitations in the exculpatory clause apply only to services Ecolab
actually provides and cannot be reasonably interpreted to excuse Ecolab from performing its
basic obligations of pest removal.
The agreement provides:
Service Quality. All Services will be performed and guaranteed in accordance
with Exhibit C. Ecolab agrees to provide the periodic Services in a good and
workmanlike manner and in accordance with Ecolab's then-current standard
written procedures, but at a minimum consistent with accepted industry practices
applicable to the food-service industry. Materials and methods of application used
in the performance of such Services will conform to applicable federal and state
laws and regulations.
Pest Elimination Services Agreement (ECF #24-1) at p. 3.
Exhibit C contains the exculpatory clause. Plaintiff argues that the above clause should
be interpreted to include a fundamental promise by Ecolab, entirely apart from any conditional
guarantee or warrantees in exhibit C, to perform the agreed upon service. However, to the extent
the agreement was modified to include spider eradication, Ecolab did not fail to perform, but
failed to perform timely. Plaintiff himself attaches several monthly service invoices regarding
spider treatment both before and after the date of the alleged spider bite. See Declaration of
Scott E. Clement at Exhibits A-G (ECF #62-1 - 7).3 Thus, even if a reasonable interpretation of
the agreement would be to exclude the limitations provisions related to claims for a failure to
provide services, there are no issues of fact that the services were in fact provided, albeit in an
untimely fashion.
Plaintiff also argues that the oral modification to the agreement to include spider
treatment somehow does not include the limitations mentioned in exhibit C. However, the
agreement expressly contemplates treatment for pests not specifically listed in the Agreement in
the “Pests Subject to Agreement” clause. See Pest Elimination Services Agreement (ECF #24-
1) at p. 25) (“If Ecolab treats for a pest not specifically listed in this document, Customer's only
remedy for a new or continued problem relating to that pest will be a free retreatment.”). There
is no ambiguity with respect to the limitation clauses in the agreement or their applicability to the
alleged breach for failure to timely respond to a treatment call. See Collins Truck Lines, Inc. v.
Metro. Waste Control Comm'n, 274 N.W.2d 123, 126 (Minn.1979) (An exculpatory clause is
ambiguous when it is susceptible to more than one reasonable construction). Plaintiff’s
interpretation that a failure to timely provide the service removes the alleged breach from the
clause related to the “Pests Subject to Agreement” is not reasonable. Regardless of whether the
spiders constituted a new or continuing problem, the agreement specifically addressed them.4
3 Indeed, plaintiff alleges Ecolab finally sent a technician to service the restaurant on or about
September 8, 2017 and that Ecolab has treated the restaurant for spiders on multiple occasions
since then. First Amended Complaint (ECF #48) at ¶ 27.
4 Plaintiff also argues that because the “problem” is serious bodily injury and not a spider
infestation, it is not logical to interpret the agreement to only allow for retreatment as a remedy.
However, this is exactly what the parties contracted for by incorporating the exculpatory clause
Finally, to the extent plaintiff suggests there is some new contract separate and apart from
the written pest elimination services agreement, plaintiff admits he had no authority to execute
such an agreement on behalf of Landry’s and otherwise provides no evidence of such a contract
executed by someone with authority from Landry’s. Thus, to the extent there is any agreement
to treat for spiders, it is part of the written agreement and subject to the limitations contained
therein. Those limitations exclude the damages claims made by plaintiff. Accordingly,
defendant’s motion for summary judgment is granted.
CONCLUSION
Defendant Ecolab’s Motion for Summary Judgment (ECF #58) is granted and defendant
Ecolab is dismissed from this action.
DATED this 13th day of January, 2020.
____/_s_/ _Jo_l_i_e _A_._ R__u_s_so________
JOLIE A. RUSSO
United States Magistrate Judge
to eliminate liability for “ALL CONSEQUENTIAL, INCIDENTAL, AND/OR SPECIAL
DAMAGES IN ANY WAY RELATED TO ECOLAB'S SERVICES OR PRODUCTS” Pest
Elimination Services Agreement (ECF #24-1) at pp. 24, 27-28 (Emphasis in original).