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Clement v. Ecolab Inc.

United States District Court, D. Oregon

January 13, 2020

SCOTT E. CLEMENT, an individual, Plaintiff,
v.
ECOLAB, INC., a Delaware corporation; and DOES I through V, Defendants.

          ORDER

          JOLIE A. RUSSO UNITED STATES 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, ...

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