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March 12, 1990


The opinion of the court was delivered by: McAVOY, District Judge.


The case presently before this Court is an action brought by Ms. Sabrina Gallon to recover damages for injuries sustained to her as a consequence of the publication of a picture of Mrs. Wood in the October 1983 edition of Hustler magazine without her consent. On April 11, 1989, plaintiff withdrew her demand for a jury trial and the parties agreed to submit the issues of proximate cause and damages to the Court to decide. At that time the Court instructed counsel to submit findings of fact and conclusions of law, with the previous record for the Court's review. Having duly considered all relevant evidence, the Court now makes the following findings of fact and conclusions of law.

Findings of Fact

Plaintiff, Sabrina Gallon, was born March 14, 1961. At the time of this action, she was twenty-six years of age and resided in Jamaica, Queens, New York, where she had resided all her life. In June 1979, Plaintiff graduated from the New York School of Printing High School and first entered Syracuse University (hereinafter "Syracuse") in July of 1979.

Defendant Hustler Magazine, Inc. is an Ohio corporation that is qualified to do business in California and New York. Its principal place of business is in Los Angeles, California, from which it publishes Hustler magazine. Hustler is commonly known in the industry as a "men's sophisticate magazine." A substantial portion of every issue is devoted to sexually explicit material.

In the spring of 1982, prior to that summer, the nude photos in question were taken by Ramsey in the couple's apartment. No facts exist that would show that the Plaintiff was aware that the photos would be sent to any magazine.

When the Fall, 1982 semester began, Plaintiff moved back into the off-campus housing complex in which she had lived the prior year. In December of 1982, the Plaintiff was physically and sexually abused by Ramsey during a one and one half day ordeal during which she was held against her will. The plaintiff did not return to Syracuse for the Spring 1983 semester, but instead, returned home and enrolled at St. John's University. The Plaintiff did return to Syracuse in January 1983 for student disciplinary hearings against Ramsey arising from the December 1982 event.

The Plaintiff returned to Syracuse in the Summer of 1983 with her sister to repeat some academic courses. In September of 1983, the Plaintiff returned to Syracuse to start the Fall semester when she was told by friends Nancy Nieves and Jackie Bigelow that her nude photos had appeared in Hustler magazine that month.

The nude photograph of Sabrina Gallon along with the accompanying caption, appeared in the Hustler Magazine's National and International editions for October of 1983. The section of Hustler in which Ms. Gallon's picture appeared was called "Beaver Hunt". "Beaver Hunt", a collection of snapshots of nude models by amateur photographers, is a monthly feature of the magazine.

In January of 1983, Michael Heimowitz was hired as a researcher for defendant, Hustler Magazine, Inc. He is the researcher that reviewed and handled the verification regarding the photograph and model release form of Sabrina Gallon.

Mr. Heimowitz acknowledged that it was his responsibility to protect people from the publication of photographs that they did not wish or intend to have published. He also stated that if there was any reason to believe that the photograph or model release form was not authentic, it was to be immediately eliminated from consideration. This was the policy and protocol as he understood it when he worked in the defendant's Research Department.

Mr. Heimowitz stated in his deposition testimony that it was part of his practice in reviewing these documents to observe the type of writing and the manner in which it was written. After receiving and reviewing the application and photograph, he sent out a mailgram to the address contained on the model release form. The mailgram was a document which solicited a telephone call in order to verify the information contained in the release form. It is apparent from his deposition testimony that Mr. Heimowitz not only failed to take any precautions which might have alerted him to the fact that the model release form as well as the signature contained therein were forgeries, but he had no knowledge of any reasons for the existence of such precautionary measures. Furthermore, when questioned concerning the various inconsistencies evident in a review of the model release form, he stated that he "did not recall formulating any impressions".

The Court has grave doubts about the adequacy of Hustler's verification process. The publication of a photograph of someone in the nude is a highly sensitive matter. The validity of the releases of "Beaver Hunt" models should be of particular concern since snapshots are not ordinarily intended for publication. Nevertheless, the verification process used by Hustler at the time provided no confirmation of the information contained in the release by an independent source. Hustler did not require notarization of the release — a requirement that might have dissuaded readers from even attempting to submit a fraudulent release. Nor did Hustler require the model to supply her social security number or driver's license number — numbers that could have been verified through independent sources. When receiving a collect call, the researcher never asked the party making the collect call to allow the conversation to be recorded, nor did he even call back the number from which the telephone call allegedly had been made prior to relying on the information received from the call. In addition, he never called directory assistance to identify a telephone number for Sabrina Gallon in the Syracuse area, nor for ...

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