United States Court of Appeals,Sixth Circuit

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.”); 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 lovoo 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.

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). In this case, the danger that a member of SexSearch could be a minor is open and obvious. 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.

No. 07-4182.

Pseudonymous plaintiff John Doe appeals the dismissal of his complaint against defendant, SexSearch (“SexSearch”), an online adult dating service that facilitates sexual encounters between its members. Doe used SexSearch to meet Jane Roe, who described herself as an eighteen-year-old female. The two met and had sexual relations. Roe, it turned out, was actually fourteen years old, and Doe was consequently arrested and charged with three counts of unlawful sexual conduct with a minor. In an unusual case of first impression, Doe then filed suit against SexSearch, alleging an array of violations under Ohio law, most of which are variations on the claim that SexSearch is at fault for Doe’s sexual relationship with a minor and the harm that resulted from his arrest.