Counts Eleven through Thirteen allege common-law unconscionability in the Terms and Conditions. At common law, unconscionability is a defense against enforcement, not a basis for recovering damages. See, e.g., Restatement (Second) of Contracts § 208 (1981) (“If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result Moco Chat si incontrano.”); Bennett v. Behring Corp., 466 F.Supp. 689, 700 (S.D.Fla.1979) (“[T]he equitable theory of unconscionability has never been utilized to allow for the affirmative recovery of money damages.”); Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451 F.Supp.2d 16, 36 (D.D.C.2006) (“Plaintiff cannot recover compensatory damages under the common law doctrine of unconscionability.”). If Doe were seeking a declaratory judgment or reformation of the contract, unconscionability could form the basis of a cause of action. See Johnson, 451 F.Supp.2d at 36. But he is not requesting either of these remedies, nor would either do him any good. While we agree with the district court’s analysis of why Counts Eleven through Thirteen fail to satisfy the two-prong showing of procedural unconscionability and substantive unconscionability, see Doe, 502 F.Supp.2d at 734-36, we note that it is unnecessary to analyze these elements here, since the doctrine itself is inapplicable.
In this case, the danger that a member of SexSearch could be a minor is open and obvious
A failure-to-warn claim requires (1) a duty to warn, (2) a breach of that duty, and (3) injury proximately resulting from the breach. Freas v. Prater Constr. Corp., 60 Ohio St.3d 6, 573 N.E.2d 27, 30 (Ohio 1991). Where the danger is open and obvious, there is no duty to warn. Livengood v. ABS Contractors Supply, 126 Ohio App.3d 464, 710 N.E.2d 770, 772 (Ohio Ct.App.1998). “Where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law.” Klauss v. Glassman, 2005 WL 678984 at *3 (Ohio Ct.App. ). A risk is considered open and obvious when its “dangers are within the body of knowledge common to the community” and “generally known and recognized by the ordinary consumer.” Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 644 N.E.2d 731, 733 (Ohio Ct.App.1994). Internet users’ anonymity and potential for false personal representations are well known. Doe was familiar with the registration process and knew that SexSearch did nothing more than asking members to check a box indicating that they are at least eighteen. Furthermore, even if there was a duty to warn, the statement in the Terms and Conditions that SexSearch could not verify members’ information could be seen as a satisfaction of that duty. Therefore, Doe has failed to state a claim for failure to warn.
The district court granted the motion to dismiss, concluding that Doe had failed to state a claim as to each of the fourteen causes of action and, in the alternative, concluding that many of the claims were barred by the Communications Decency Act. This appeal followed.
Count Three alleges that SexSearch negligently inflicted emotional distress by failing to remove Roe’s profile from its website. To state a claim for negligent infliction of emotional distress under Ohio law, the plaintiff must allege that he was aware of real physical danger to himself or another. See King v. Bogner, 88 Ohio App.3d 564, 624 N.E.2d 364, 367 (Ohio Ct.App.1993); see also Heiner v. Moretuzzo, 73 Ohio St.3d 80, 652 N.E.2d 664, 669 (Ohio 1995) (Ohio courts have limited “recovery for negligent infliction of emotional distress to instances where the plaintiff has either witnessed or experienced a dangerous accident or appreciated the actual physical peril”). Doe’s alleged injuries result from embarrassment and harm to social standing and employment prospects; he does not allege that he experienced a dangerous accident or appreciated actual physical peril and, consequently, has not stated a claim for negligent infliction of emotional distress. See Wigfall v. Society Nat’l Bank, 107 Ohio App.3d 667, 669 N.E.2d 313 (Ohio Ct.App.1995) (affirming trial court’s grant of summary judgment for defendant on plaintiff’s claim for negligent infliction of emotional distress, where defendant falsely accused plaintiff of robbing a bank, resulting in plaintiff’s arrest and interrogation and the publication of his photograph).
But those conditions hardly amount to a unilateral right to cancel on SexSearch’s behalf
SexSearch’s right to cancel, which Doe describes as “unilateral,” is likewise not unconscionable. Members may cancel at any time; they must do so at least three days before the next monthly billing cycle to avoid being charged for the next month, and they will not receive a refund unless unusual circumstances apply. And when SexSearch does cancel a paid membership, it will provide “a pro-rata refund for the unexpired period of the cancelled month’s membership by automatic credit.” Furthermore, SexSearch’s power to cancel memberships is presumably designed to protect members from those who have violated the Terms and Conditions or posted false content. Therefore the right to cancel is not unconscionable within the meaning of § (A) and so Count Nine does not state a claim for relief. Count Ten does not specify which clauses are so substantially one-sided as to rise to the level of unconscionability, but a review of the Terms and Conditions does not turn up any candidates, and thus the dismissal of Count Ten should also be affirmed.
