Solidification, Inc. v. Minter, 51042.

• Decision Date: 29 May 1981
• Docket Number: No. 51042.,51042.
• Citation: 305 NW 2d 871,873 Minn. 1981
• Parties: SOLIDIFICATION, INC., Appellant, v. Michael S. MINTER et al., Respondents.
• Court: Minnesota Supreme Court

305 N.W.2d 871 (1981)

SOLIDIFICATION, INC., Appellant, v. Michael S. MINTER et al., Respondents.

No. 51042.

Supreme Court of Minnesota.

May 29, 1981.

Edward M. Cohen and David L. Olson, St. Louis Park, for appellant.

Schiefelbein & Greenberg and Alan G. Greenberg, Minneapolis, for respondents.

Considered and decided by the court en banc without oral argument.

SIMONETT, Justice.

Plaintiff Solidification, Inc., sued defendant Michael S. Minter on an unpaid bill for repairing a warehouse floor. Minter counterclaimed, alleging the work had been done negligently. The trial court found in favor of defendant Minter, awarding him $6,500 damages. Solidification appeals, claiming the evidence is insufficient to support a finding of causal negligence, that in any event an exculpatory clause in the contract exonerates it from liability, and, if liable, the unpaid contract price should have been offset against the $6,500 damage award. We modify and affirm.

1. Plaintiff was hired to raise the concrete slab floor in an old warehouse by pumping grout (a viscous cement slurry) under the floor. After the job was done, it was discovered all the sewer pipes under the floor were clogged with grout and defendant Minter had to make substantial repairs. The trial court found that Solidification "was negligent in failing to flush water through the system while performing the grouting procedure" and that Minter was thereby damaged.

Solidification claims it did flush water through the pipes while grouting. Minter testified it did not. The parties even disagreed if the grout found in the pipes was plaintiff's grout. The liability issue is close, but the trial court saw and heard the witnesses and there is evidence to support the verdict. We cannot say the finding was clearly erroneous.

2. There were many unknowns involved in the grouting procedure: an old building with a sagging floor, wet subsoil, and plumbing which had been shut off for several years and was in an unknown condition. Consequently, Solidification added a clause to the work contract as follows: "We will avoid all possible pumping grout into sewer, however, cannot accept responsibility should this occur." Solidification claims the clause is a valid exoneration from liability. Minter claims the clause does not include negligence, and, in any event, it contains a prefatory promise of due care.

We have upheld exculpatory clauses between private parties as valid. Independent School Dist. No. 877 v. Loberg Plumbing & Heating Co., 266 Minn. 426, 123 N.W.2d 793 (1963); Pettit Grain & Potato Co. v. Northern Pacific Ry. Co., 227 Minn. 225, 235, 35 N.W.2d 127, 132 (1948). Since Farmington...