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.
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
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
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".