SUPERIOR COURT OF NEW JERSEY LAW DIVISION CAMDEN COUNTY.
Plaintiff, a professional photographer, contracted with defendant to place advertisements in the Burlington and Camden County classified telephone directories. Defendant, New Jersey Bell Telephone Company (hereinafter, "Bell"), published the advertisements. Bell concedes that certain key data in these advertisements was omitted. Plaintiff now seeks partial summary judgment as to liability for defendant's acts and omissions.
Bell asserts as its sole defense that the terms of its directory advertising contract limit recovery to a refund of those charges paid by plaintiff. Defendant also seeks summary judgment. It contends that the limitation of liability clause contained in
paragraph five (5) of the "Terms and Conditions of Agreement" is valid and enforceable.*fn1
Plaintiff contends that the limitation of liability provision should not be enforced because it was inconspicuous and buried in a standardized form contract, and thus did not constitute an attempt to communicate in an effective manner the liability limitation at the time the agreement was reached. Plaintiff further alleges that the limitation of liability provision was within a contract of adhesion that gave the plaintiff no choice in the matter. He urges the court to utilize the Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960), doctrine to declare this clause unconscionable.
There are no reported decisions in New Jersey on the issue of whether a telephone company may limit liability through a contractual provision of this nature.
The facts in this case are not disputed. On February 2, 1983, plaintiff entered into a directory advertising agreement with New Jersey Bell. The agreement specified that an advertisement comprising one-eighth page in length was to appear for one year commencing in the October 1983 Camden County directory and the November 1983 Burlington County directory, under the heading of Photographers-Portraits. The agreement also called for a bold listing under the heading of Photographers-Aerial, with an extra line indicating "For You Who Desire Something Better."
After the initial agreement was signed on February 2, 1983, plaintiff made several telephone calls to Bell on the dates of June 2, June 7, and June 17, 1983 requesting changes in his
advertisement. On July 13, 1983, a Bell salesperson recorded the changes as requested by plaintiff. These changes included the addition of an extra line of information, "F.A.A. Licensed P.P. of A. Certified," an additional listing of "John Tannock Photography" and display ads anchored to this listing. Thereafter, plaintiff's account was turned over for normal processing and publication in the Camden County and Burlington County directories, as called for in the contract and subsequent amendments.
Even though the substance of plaintiff's advertising was properly submitted with the requested changes, defendant admits that errors occurred during the printing of its publication. The Camden County directory was published with the incorrect extra line inserted, "For You Who Desire Something Better" instead of "F.A.A. licensed P.P. of A. Certified." In the Burlington County ...