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Orlett v. Suburban Propane12/11/1989
of its own possible negligence, is wholly oppressive and unconscionable, and against public policy.
The Orletts in this instance had little power or choice but to agree to the terms as set forth by their supplier, Texgas. Hence, the lack of a bargained-for exchange between the Orletts and Texgas, two parties who are dissimilarly situated, renders the present exculpatory clause in favor of Texgas unenforceable as a matter of law.
Generally, contracts or clauses thereof are "unconscionable" where one party has been misled as to the "basis of the bargain," where a severe imbalance in bargaining power exists, or where specific contractual terms are outrageous. County Asphalt, Inc. v. Lewis Welding & Engineering Corp. (S.D.N.Y. 1970), 323 F. Supp 1300, 1308. See, also, Evans v. Graham Ford, Inc. (1981), 2 Ohio App.3d 435, 2 OBR 529, 24 O.O. 3d 140, 442 N.E.2d 777.
R.C. 1302.93(C), regarding a limitation of remedy in the context of a sale of goods, provides:
"Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.
Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." (Emphasis added.)
Although the instant action is not a sale of goods in the strict sense, the above provision is applicable due to the fact that Texgas contracted to service the Orletts in connection with the sale of propane gas. Further, the legislature's intention to protect the consumer against overreaching and unscrupulous sellers mandates that the essence of R.C. 1302.93(C) be followed as applied to parallel situations as exhibited in the present case.
Accordingly, we find that the exculpatory clause which purports to insulate Texgas from its own negligence in the course of servicing its customers is void and unconscionable as a matter of law thus rendering summary judgment in its favor improper. Therefore, the Orletts' assignment of error is well-taken and is hereby sustained.
Judgment reversed and cause remanded.
Hendrickson, J., concurs.
Jones, P.J., concurs separately.
Jones, P.J., concurring separately. The exculpatory clause was unconscionable in relieving appellees of liability except in instances of gross negligence or wanton and willful acts. Appellees sold an inherently dangerous product and obviously had superior knowledge with respect to the propensities of the propane gas. Appellees are therefore liable for their negligent acts. Summary judgment was improper, because there were genuine issues of material fact as to appellees' negligence, including: (1) whether appellees should have installed gauges after discontinuing the "automatic fill" services; and (2) whether appellees should have warned appellants as to the dangers involved in permitting the tanks to become low in pressure. It may well be that a jury would find a lack of negligence on the part of appellees, but in any event, appellees should not be permitted to absolve themselves from liability on the basis of the exculpatory clause unilaterally inserted in the contract.
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