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Northern Electric via Western Electric. Bell Canada. Unix System Laboratories. Lucent Technologies NCR. Teradata AirTouch Dex Media Telcordia Technologies Cerberus Capital Management. It is undisputed that Directory provided the only universally distributed classified business directory in plaintiff's geographical area of operation. Without a greater factual record, however, we are unable to determine whether McCarn had any other practical way of advertising her business, and hence we cannot know the exact extent to which Directory enjoyed an advantage in negotiating strength.

Nor have we any way of knowing the number of businesses which are primarily dependent upon the yellow pages to attract new customers.

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Following the rule that doubts on factual matters must be resolved in favor of the party opposing summary judgment Molko v. The notice on the agreement's front page repeats that the limitation of liability may be eliminated if an additional charge is paid. To the contrary, Directory expressly offers to renegotiate the exculpatory term with any advertiser. This case is similar to Cregg v. Ministor Ventures Cal.


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The existence of an offer to negotiate the limits of liability in the preprinted contract is fatal to plaintiff's public policy claim. The essence of the Tunkl policy is that individuals should not be compelled by practical necessity to agree to limitations of liability. The limitation in Directory's contract was simply not compulsory—it was negotiable.

One must recognize, however, that the Tunkl factors are interconnected, and the absence of one may reduce or eliminate the significance of others. The practical necessity of the service factor 2 and the resulting bargaining edge enjoyed by the provider factor 4 are important chiefly because they allow the provider to confront the public with an adhesive contract of exculpation factor 5.

Here, Directory has not used its bargaining strength to present customers with an adhesive limitation of liability—presumably because it was advised that such a limitation might not withstand a Tunkl analysis. McCarn argues that her ability to negotiate different terms is a question of fact, precluding summary judgment. It is speculation to ask whether Directory would have agreed to a reasonable additional fee had McCarn attempted to negotiate one.

We do not decide here whether a plaintiff who attempted and was unable to agree with Directory on a reasonable fee could succeed in having the exculpatory clause invalidated under Tunkl. Plaintiff also argues there is a question of fact as to whether the exculpatory clause was brought to her attention when she signed the contract. At her deposition McCarn testified she never read paragraph She testified that she nevertheless asked the representative some questions about the price and discounting terms and that he answered them.

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Whether the clause was brought to McCarn's attention is immaterial to plaintiff's claim that the contract is in violation of public policy. See Appalachian Ins. In the trial court as on appeal, plaintiff's claim was one of public policy invalidity, not unconscionability as such.

The trial court did not err in granting summary judgment for Directory. There were no triable issues of fact relating to plaintiff's claim that the exculpatory clause in the contract with Directory violated public policy. Only plaintiff Cynthia McCarn has appealed the judgment. Verb co-founders on their early forays in advertising—and why they shouldn't be 'put in a box' By Lindsay Rittenhouse - 2 months 3 weeks ago. How to reinvent a well-known brand By Drew Neisser - 2 months 3 weeks ago.

T-Mobile says it owns exclusive rights to the color magenta By George P. Slefo - 3 days 14 hours ago. Published on September 27, In this article: BtoB.

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