Complaint - Clement v. Ecolab...
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 1 - COMPLAINT 2300 SW First Avenue, Suite 200 Portland, OR 97201-5047 (503) 221-0699 FAX (503) 223-5706 IN THE CIRCUIT COURT FOR THE STATE OF OREGON IN AND FOR THE COUNTY OF MULTNOMAH PARTIES, JURISDICTION, VENUE 1. Plaintiff is a natural person. 2. Defendant Ecolab, Inc. is a Delaware corporation with its principal place of business in Minnesota, but which regularly conducts business nationwide, including in Multnomah County, Oregon. 3. Defendant Does 1 through 5 are individuals and/or entities whose identities are currently unknown to Plaintiff, but whose actions and inactions are responsible and/or contributed to the conduct and damages alleged in this action. /// SCOTT E. CLEMENT, an individual, Plaintiff, v. ECOLAB, INC., a Delaware corporation; and DOES 1 through V, Defendants. Case No. COMPLAINT (Negligence; Breach of Contract) Filing Fee: $560.00 Fee Authority: ORS 21.160(1)(c) Amount Claimed: $999,999 NOT SUBJECT TO MANDATORY ARBITRATION 3/8/2018 9:15 AM 18CV08295
Transcript of Complaint - Clement v. Ecolab...
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PAGE 1 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
IN THE CIRCUIT COURT FOR THE STATE OF OREGON
IN AND FOR THE COUNTY OF MULTNOMAH
PARTIES, JURISDICTION, VENUE
1.
Plaintiff is a natural person.
2.
Defendant Ecolab, Inc. is a Delaware corporation with its principal place of
business in Minnesota, but which regularly conducts business nationwide, including
in Multnomah County, Oregon.
3.
Defendant Does 1 through 5 are individuals and/or entities whose identities
are currently unknown to Plaintiff, but whose actions and inactions are responsible
and/or contributed to the conduct and damages alleged in this action.
///
SCOTT E. CLEMENT, an individual, Plaintiff, v. ECOLAB, INC., a Delaware corporation; and DOES 1 through V, Defendants.
Case No. COMPLAINT (Negligence; Breach of Contract) Filing Fee: $560.00 Fee Authority: ORS 21.160(1)(c) Amount Claimed: $999,999 NOT SUBJECT TO MANDATORY ARBITRATION
3/8/2018 9:15 AM18CV08295
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PAGE 2 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
4.
Jurisdiction and venue are proper in the Circuit Court for the State of Oregon
in and for Multnomah County because the acts and omissions giving rise to this
action took place in Multnomah County.
COMMON ALLEGATIONS
5.
Plaintiff is employed as the General Manager of McCormick & Schmick’s
Harborside at the Marina & Pilsner Room, which is an upscale restaurant and bar
located in Southwest Portland (the “Restaurant”).
6.
The Restaurant is one of the family of bars, restaurants and businesses
owned by Landry’s, Inc., which owns and operates the Restaurant.
7.
The Restaurant has been in continuous operation at that location for many
years, and has long been one of the busier and more popular eateries in the
Portland metropolitan area.
8.
Ecolab is a company engaged globally in providing water, hygiene and
energy technologies and services to the food, energy, healthcare and hospitality
markets, including providing pest control, pest elimination and exterminator services
to bars and restaurants.
9.
At all relevant times, Ecolab was under contract – a Pest Elimination Services
Agreement -- with Landry’s to provide pest elimination, pest control and exterminator
services to Landry’s-owned facilities nationwide, including the Restaurant
(hereinafter, the “Agreement”).
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PAGE 3 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
10.
Under the Agreement, Ecolab was obligated to perform pest elimination and
pest control services at the Restaurant, including promising “proactive prevention”
through the use of reliable protocols supported by science to help protect customers
through regular service visits by highly-trained and professional service specialists.
11.
The Agreement provided for regular service visits. Additionally, in the
Agreement, Ecolab also agreed that it could be contacted regarding pest activity and
concerns, and that its representatives would be available 24 hours a day, seven
days a week. Ecolab also promised to call back within one hour of such calls to
schedule a visit, which visit would occur within 24 hours where immediate attention
is requested. Ecolab also agreed to provide emergency services 24 hours a day,
seven days a week.
12.
As General Manager, Plaintiff was responsible for coordinating with Ecolab
for performance of its pest elimination services at the Restaurant. In addition to the
regular service visits, Plaintiff often contacted Ecolab to address interim pest
concerns. During the summer months in particular, Plaintiff regularly contacted
Ecolab to visit the Restaurant to perform services, including to address the
elimination and prevention of spider infestation. Such services were requested and
necessary on a more frequent basis during the warmer weather months to protect
the health and safety of the Restaurant’s employees, customers and other visitors
who more frequently utilized the patio and outdoor areas along the perimeter of the
Restaurant.
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PAGE 4 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
13.
During the summer and early fall of 2017, Plaintiff contacted Ecolab several
times requesting that they visit the Restaurant to address immediate pest concerns,
including specifically to spray for spiders.
14.
Plaintiff placed the service request calls to Ecolab based on his concern for
the health and safety of the Restaurant’s customers, employees and visitors.
15.
Ecolab failed to timely respond to Plaintiff’s requests for services, and failed
to perform the requested services (including, but not limited to, spraying for spiders)
at the Restaurant in the timeframe of July and August of 2017.
16.
Ecolab knew that the Restaurant required immediate pest elimination and
prevention services, specifically including spraying for spiders, during July and
August of 2017 and knew that spiders at the Restaurant posed a threat to the health
and safety of the Restaurant’s customers, employees and other visitors.
17.
Despite knowing of the unsafe conditions at the Restaurant and the
immediately-required pest elimination and prevention services (including spraying for
spiders), Ecolab and the Doe Defendants failed to take reasonable or contractually-
required actions to respond to Plaintiff’s requests or to perform the requested and
required services.
18.
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
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PAGE 5 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
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.
19.
While Plaintiff was attending to the matters at the Restaurant that Ecolab had
failed to address, Plaintiff was bitten by a Brown Recluse Spider. 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.
20.
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.
21.
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.
22.
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
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2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
losses and damages, including pain, suffering, anxiety and emotional distress, in an
amount to be proven at trial.
23.
Despite demand, Defendants have failed and refused to compensate Plaintiff
for any of his damages and losses.
FIRST CLAIM FOR RELIEF
(Negligence)
24.
Plaintiff realleges and incorporates by this reference the allegations in
paragraphs 1 through 23 above.
25.
Defendants negligently caused Plaintiff physical injury, economic and non-
economic damages by failing to respond to Plaintiff’s requests for pest elimination
and prevention services, failing to perform the requested services in a timely and
competent manner, failing to take reasonable measures to protect Plaintiff from
harm, and by failing to reasonably mitigate the risks of personal injury to those
similarly situated to Plaintiff who were exposed to spider bites if pest elimination and
prevention services were not competently and timely provided.
26.
Defendants’ conduct unreasonably created a foreseeable risk of harm to
Plaintiff, which risk Defendants disregarded and failed to avoid in allowing the
Restaurant to continue in a dangerous condition despite the known risks, especially
of spider bites.
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PAGE 7 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
27.
As a direct, proximate and foreseeable result of Defendants’ negligence,
Plaintiff suffered personal injury and related costs, damages and losses in an
amount to be proven at trial.
SECOND CLAIM FOR RELIEF
(Breach of Contract)
28.
Plaintiff realleges and incorporates by this reference the allegations in
paragraphs 1 through 27 above.
29.
The Agreement constitutes a valid and enforceable contract between the
parties thereto, which was supported by adequate consideration.
30.
Plaintiff was an intended beneficiary of the Agreement, because Ecolab’s
promises and guarantees as to the timing and quality of its services were intended to
be and were for the benefit of, among others, Plaintiff and other employees of
Landry’s and the Restaurant and for the protection, health and safety of such
persons, which it was also the duty of Landry’s (as employer and property owner) to
safeguard.
31.
Landry’s has performed all conditions and obligations on its part to be
performed under the Agreement, or such conditions and obligations have been
excused.
32.
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
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PAGE 8 - COMPLAINT
2300 SW First Avenue, Suite 200 Portland, OR 97201-5047
(503) 221-0699 FAX (503) 223-5706
the Restaurant, Ecolab breached its contractual obligations, promises and
guarantees as set forth in the Agreement and exhibits.
33.
As a direct, proximate and foreseeable result of Ecolab’s breaches, Plaintiff
suffered economic and non-economic damages and other losses in an amount to be
proven at trial.
Demand for Jury Trial
34.
Plaintiff demands a jury on all issues so triable.
WHEREFORE, Plaintiff prays for Judgment and Money Award against
Ecolab, Inc. and the Doe Defendants, jointly and severally, as follows:
1. For judgment in an amount to be proven at trial, but which is currently
estimated to be approximately $999,999.00, plus pre and post judgment interest at
the highest statutory rate;
2. For Plaintiff’s costs and disbursements incurred herein; and
3. For such additional and further relief as the Court deems just and
equitable.
DATED this 8th day of March, 2018.
STEWART SOKOL & LARKIN LLC By: s/ John Spencer Stewart
John Spencer Stewart, OSB #711648 [email protected] Tyler J. Storti, OSB #034695 [email protected] Attorneys for Plaintiff Scott E. Clement Trial Attorney: John Spencer Stewart
