FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Mauricio v Phoenix of Micronesia Inc, 8 FSM Intrm. 411 (Pon. 1998)

JOSEPH MAURICIO,
Plaintiff,

vs.

PHOENIX OF MICRONESIA, INC.,
Defendant.

CIVIL ACTION NO. 1994-041

ORDER AWARDING DAMAGES

Andon L. Amaraich
Chief Justice

Trial: June 9, 1998
Decided: August 3, 1998

APPEARANCES:

For the Plaintiff:
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

For the Defendant:
Delson Ehmes, Sr., Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Torts - Invasion of Privacy
There is no impediment to recognition of a right to privacy in Pohnpei and therefore no impediment to recognition of a cause of action for violation of that right. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 413 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
Where is little guidance in the prior decided opinions of the FSM Supreme Court for damage awards in privacy cases, the court will look to the reasoning of courts in other jurisdictions for guidance in assessing damages. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
A party that has established a cause of action for invasion of privacy is entitled to recover damages for the harm to his or her interest in privacy resulting from the invasion; mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and special damage of which the invasion is a legal cause. Special damages are demonstrable, direct economic losses resulting from the invasion of privacy. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 & n.1 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
The gist of the cause of action for invasion of privacy is for direct wrongs of a personal character which result in injury to the plaintiff's feelings, mental and emotional suffering are proper elements of damages. Substantial damages may be recovered, even if the only damages suffered resulted from mental anguish. These damages may include compensation for the wounded feelings, embarrassment, humiliation, and mental pain which a person of ordinary sensibilities would suffer under the circumstances. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
Punitive damages may also be awarded where it is shown that the defendant acted with malice or with a gross disregard for plaintiff's right to privacy, in order to punish the defendant for its conduct and to deter the defendant and others from engaging in like conduct in the future. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
The amount of damages to be awarded in invasion of privacy cases rests with the sound discretion of the trier of fact. The fact that damages may be difficult to ascertain, or that they cannot be measured by a pecuniary standard, is not a basis for denying all recovery even though there is no direct evidence of the amount of damage sustained. However, to recover substantial compensatory damages, the plaintiff must prove these damages. If there has been no material injury to the plaintiff, or if there is no evidence that damage has been sustained, or no evidence to serve as a basis for the calculation of damage, plaintiff will be awarded nominal damages only. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
The measure of compensatory damages in a case involving commercial appropriation of one's name or likeness is the value of the benefit derived by the person appropriating the other's name, or the pecuniary loss suffered by the plaintiff whose name has been appropriated. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
In privacy cases in which a plaintiff also seeks damages for unjust enrichment, only one recovery is available because an invasion of another's right of privacy by a publication confers no right to share in the proceeds of such publication's sale of upon the ground that the author has thereby been unjustly enriched. It is inconsistent for the plaintiff to seek recovery for an invasion of the right of privacy, and in the same suit, to claim the right to participate in the profits of the publication. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 414 (Pon. 1998).

Torts - Damages
When the evidence presented shows that the defendant relied on what he believed was appropriate consent and had acted in accordance with what he thought was appropriate custom and had not acted with malice, with an intent to violate plaintiff's rights, punitive damages will not be awarded. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 417 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
When there is little instruction in previously decided FSM cases for assessing damages in an invasion of privacy case, privacy cases in other jurisdictions may provide some useful guidance. FSM cases awarding damages for mental pain and suffering outside the privacy context are also instructive. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 418 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
When there is no direct evidence of the amount of damages sustained, nor the amount of money that can compensate for an injury, the court, as trier of fact, must assess an appropriate level of compensatory damages for that injury. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 418 (Pon. 1998).

Torts - Damages; Torts - Invasion of Privacy
Compensatory damages for unjust enrichment will be not awarded when this claim conflicts with plaintiff's claim for compensatory damages for invasion of privacy because it is inconsistent for a plaintiff who wishes to recover for invasion of privacy to also claim the right to participate in the profits of publication and because when a privacy cause of action is brought together with another cause of action based on the same objectionable behavior under another theory, generally only one recovery may be awarded. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411, 418-19 (Pon. 1998).

* * * *

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

Introduction

On March 3, 1998, the Court ruled that Defendant Phoenix of Micronesia ("Phoenix") had tortiously invaded Plaintiff Joseph Mauricio's privacy by marketing his image on a postcard for sale in Pohnpei. The Court found defendant liable to plaintiff for commercial appropriation of plaintiff's image and likeness, and unjust enrichment. On June 9, 1998, the case proceeded to trial on plaintiff's claims for compensatory and punitive damages. Based on the testimonial evidence presented at trial, the Court dismissed plaintiff's claim for punitive damages. The Court now awards plaintiff compensatory damages as set forth below.

Discussion

I. Applicable Law

At trial, plaintiff sought $100,000 in compensatory damages, and an unspecified amount in punitive damages. Plaintiff argued that the Court should award him compensatory damages for the blow to his privacy and dignity caused by defendant's actions, and make an additional award of punitive damages substantial enough to deter Phoenix and other commercial photographers from taking advantage of other Micronesians in the same manner.

The Court's March 3, 1998 Order and Memorandum of Decision ("Order") found that there was no impediment to recognition of a right to privacy in Pohnpei and therefore no impediment to recognition of a cause of action for violation of that right. Mauricio v. Phoenix of Micronesia, 8 FSM Intrm. 248, 251-53 (Pon. 1998). The Court looked to decisions of United States courts and to this Court's reasoning in Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451 (Chk. 1994) for relevant common law tort principles to apply to plaintiff's claims, where Pohnpeian custom and tradition were not determinative. The Court then evaluated the persuasiveness of the reasoning in those decisions against pertinent aspects of Micronesian society and culture in Pohnpei. Mauricio, 8 FSM Intrm. at 253. The Court shall do the same here, in assessing appropriate damages for defendant's invasion of plaintiff's privacy.

Unfortunately, there is little guidance in the prior decided opinions of this Court for damage awards in privacy cases. Nethon v. Mobil Oil Micronesia, a case factually very similar to this one, was settled without a judicial determination of damages. For this reason, the Court will look to the reasoning of courts in other jurisdictions for guidance in assessing damages in this invasion of privacy case. See Semens v. Continental Air Line, Inc., 2 FSM Intrm. 131, 141-42 (Pon. 1985).

Under United States law, a party that has established a cause of action for invasion of privacy is entitled to recover damages for: "(a) the harm to his or her interest in privacy resulting from the invasion; (b) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause."1 62A Am. Jur. 2d Privacy § 251 (1990) (footnotes omitted). "[T]he gist of the cause of action for invasion of privacy is for direct wrongs of a personal character which result in injury to the plaintiff's feelings," therefore mental and emotional suffering are proper elements of damages. Id. § 252. Substantial damages may be recovered, even if the only damages suffered resulted from mental anguish. Id. §§ 253, 254; Faber v. Condecor, 477 A.2d 1289, 1294 (N.J. Super. App. Div. 1984); Fairfield v. American Photocopy Equip. Co., 291 P.2d 194, 199 (Cal. Dist. Ct. App. 1955). These damages may include compensation for the wounded feelings, embarrassment, humiliation, and mental pain which a person of ordinary sensibilities would suffer under the circumstances. 62A Am. Jur. 2d Privacy § 254 (1990). Punitive damages may also be awarded where it is shown that the defendant acted with malice or with a gross disregard for plaintiff's right to privacy, in order to punish the defendant for its conduct and to deter the defendant and others from engaging in like conduct in the future. Id. at §§ 263-65.

The amount of damages to be awarded in invasion of privacy cases rests with the sound discretion of the trier of fact. Id. § 254. The fact that damages may be difficult to ascertain, or that they cannot be measured by a pecuniary standard, is not a basis for denying all recovery. Id. § 257. Recovery is not barred even though there is no direct evidence of the amount of damage sustained. Fairfield, 291 P.2d at 198-99. However, to recover substantial compensatory damages, the plaintiff must prove these damages. 62A Am. Jur. 2d Privacy § 254 (1990). If there has been no material injury to the plaintiff, or if there is no evidence that damage has been sustained, or no evidence to serve as a basis for the calculation of damage, plaintiff will be awarded nominal damages only. Id.

Under U.S. law, the measure of compensatory damages in a case involving commercial appropriation of one's name or likeness is the value of the benefit derived by the person appropriating the other's name, or the pecuniary loss suffered by the plaintiff whose name has been appropriated. Id. In cases in which a plaintiff also seeks damages for unjust enrichment, only one recovery is available:

it has been held that an invasion of another's right of privacy by a publication confers no right upon such other to share in the proceeds of the sale of such publication upon the ground that the author has thereby been unjustly enriched. The rationale given for this rule is that it is inconsistent for the plaintiff to seek recovery for an invasion of the right of privacy, and in the same suit, to claim the right to participate in the profits of the publication.

Id. § 253.

The Court finds these general principles appropriate for application in this case.

II. Testimony at Trial

Plaintiff Joseph Mauricio testified that defendant's unauthorized marketing of a postcard with his image on it has caused him embarrassment and humiliation. He first learned he was the subject of a Phoenix postcard when a man he knew presented the postcard to him at a sakau market, asked him if he had seen the picture, and laughed at him. When plaintiff saw the picture, he was embarrassed, angry and upset. He took the picture and put it in his pocket.

On another occasion, a female acquaintance of his ran toward him out of the town bakery, showed him the postcard and asked him if he knew who it was, laughing at him. On that date he had sworn out loud at Phoenix out of anger and embarrassment. Sometime thereafter, he went into another store to make a purchase, and came across a rack of postcards, including the one with him in it. Again, he was embarrassed, but made his purchase.

Plaintiff testified that after he learned about the postcard, he spoke with members of his family and some of his friends for their advice. On advice of his attorney, he went to stores looking for postcards so that he could gather them and get receipts to show how much they had been sold for. He saw them in nine stores. He was also told that his postcard was displayed in Hawaii which made him even more agitated.

Plaintiff was angry and upset because Phoenix had used his picture for commercial purposes without asking him first and without showing him the proper respect. He testified that in Pohnpeian custom, one shows respect by asking for permission. Plaintiff explained that he was also very upset because he is not wearing a shirt in the photograph, and he considers that to be inappropriate for a photograph displayed around town. He testified that he believes a shirt gives a good appearance, even though he conceded it was appropriate for him to have removed his shirt while preparing sakau in the nahs when the Nanmwarki is present. Plaintiff had never had his picture taken before. He has never owned or touched a camera and his friends do not have cameras. He testified that he believed it would have been inappropriate for him to bring a camera to a kamadipw.

Plaintiff stated that if the Nanmwarki and the defendant had asked him for a photograph, and told him they would respect him, he would have permitted the taking of his photograph, posed for the camera and smiled. He would also have permitted them to make a postcard if they had asked him and shown him respect.

Gallen Soswa and Lolasko Soswa, two of plaintiff's friends, next testified to plaintiff's reaction to the discovery of his image on the Phoenix postcard. Both testified that they were present at the time plaintiff's photograph were taken.

Lolasko Soswa explained that Joseph told him he had been photographed, and also told him that there was half of a hand in the picture and it was Lolasko's hand. Lolasko testified that both he and Joseph were upset and angry because they had not been told that they would be photographed and be the subject of a postcard. He explained that Pohnpeians value their way of life by not showing their bodies. He gave a number of examples, including the relationship between the sexes, where affection is not publicly displayed; "pahwehl" - when Pohnpeians have an area in the land that belongs to them where they plant crops that they do not reveal to others; and "mwaleng" - Pohnpeians' handling of personal belongings. He explained that Pohnpeians do not want other men to know what they have. Mr. Soswa stated that the concepts of "pahwehl" and "mwaleng" make clear that Pohnpeians value their privacy. Lolasko testified that if someone took a picture of him without a shirt on he would be upset, if he had not been asked for permission, even if the Nanmwarki had given permission. No Pohnpeian has ever taken his picture, and he would never take someone's picture without asking.

Gallen Soswa, a relative and good friend of Joseph's, then testified. He stated that one time when he was visiting Joseph, Joseph brought up the subject of the postcard. Gallen teased him about it to test his reaction, asking Joseph how these people could have used him to sell a postcard. He could tell that Joseph was very upset. At that time, Joseph told him that he needed to find someone to help him because he felt that his rights as an individual had been violated. Gallen expressed his belief that foreigners should respect Pohnpeian culture when in this country, and that Phoenix's actions had shown a lack of respect for Joseph.

Rufino Mauricio then testified as an expert on Pohnpeian custom, to comment on how a reasonable Pohnpeian would feel in plaintiff's situation. He is also related to the plaintiff. Rufino Mauricio explained that Pohnpeians are a dignified, private people, and keep a social distance to make sure that other people's pride is not hurt. It is very important that people are portrayed in an appropriate light. When images of tradition are taken out of the appropriate cultural context, (for example when dances are taken as entertainment or sakau-making as display), although the information conveyed by the image might be correct, the perception might be incorrect. Rufino Mauricio testified that the postcard incident has caused Joseph to question whether he should continue to perform his responsibilities for work in the nahs. This case itself has disrupted tradition, and put plaintiff in an awkward position, by questioning, through this lawsuit, a decision made by his traditional leader.

Finally, Rufino Mauricio testified that photography is not part of the normal way of life in Pohnpei. A Pohnpeian growing up would not consider picture taking as something that is typically done. The technology used is strange to many Pohnpeians, and may stir up their feelings more than it would people in other cultures. Adaptation to this foreign element is proceeding, but local customs have not really developed around camera use. Those Pohnpeians with cameras and video equipment are likely to take pictures of close friends and family members. Rufino Mauricio testified that people do always ask before they take pictures.

Melsohr Gilmete next testified on behalf of the defendant as an expert on custom and tradition in Pohnpei. He was asked to explain what happens when the people consider the Nanmwarki to have made a mistake. Mr. Gilmete testified he has never known a Nanmwarki to make a mistake. Common people cannot tell the Nanmwarki that he is wrong. Only certain people, including village chiefs, can approach the Nanmwarki and advise him. However, under Pohnpeian custom, anyone who acts on the Nanmwarki's order cannot be punished. If the Nanmwarki were to make a mistake, that mistake would be excused. Whatever the Nanmwarki says is never rejected and what the Nanmwarki delegates is never returned.

III. Punitive Damages Claim

After testimony had been taken from all witnesses but Melsohr Gilmete, plaintiff's counsel moved for the Court to make a ruling on the issue of malice - whether a prima facie case has been made sufficient to allow plaintiff to continue with his presentation on the appropriate amount of punitive damages.

Plaintiff argued that the testimony presented during the liability and damages phases of trial demonstrated that defendant had exhibited a high regard for the Nanmwarki, but a conscious disregard for plaintiff's own rights. Mr. Kobayashi, who took plaintiff's photograph, testified that he had had twenty years of experience in the field of photography. Plaintiff argued that based on that experience, Mr. Kobayashi should have known plaintiff's consent was required before producing a postcard from his image. Plaintiff contended that the evidence of malice on the record was sufficient for plaintiff to present additional evidence on punitive damages.

In response, defendant argued that the Court should consider Mr. Kobayashi's actions in context. Mr. Kobayashi, though Japanese, had acted in a manner consistent with Pohnpeian culture by consulting with the Nanmwarki before taking an action. He cannot be said to have expressed disrespect for plaintiff by seeking consent from plaintiff's traditional leader. In addition, Mr. Kobayashi believed an announcement had been made to all those present at the kamadipw, explaining the purpose of his photography. He relied on that announcement in taking plaintiff's picture. He then relied on the consent he received from the Nanmwarki in converting plaintiff's photograph into a postcard. For these reasons, Mr. Kobayashi thought he had been given appropriate permission and defendant cannot be found to have acted with malice.

After hearing the arguments of the parties, the Court orally ruled that no malice had been shown sufficient to warrant the taking of further evidence on plaintiff's claim for punitive damages. The Court explained that it was convinced by the evidence shown that Mr. Kobayashi had been acting in accordance with what he thought was appropriate custom from the time he entered the nahs, and that he did not intend to show a complete disregard for plaintiff. In addition, the evidence showed that after the kamadipw, the Nanmwarki went to Phoenix and gave permission for Phoenix to make the picture into a postcard. The Court explained that the defendant should have asked plaintiff for his personal consent. However, the evidence presented showed that the defendant relied on what he believed was appropriate consent and had not acted with malice, with an intent to violate plaintiff's rights.

IV. Compensatory Damages

During closing arguments, plaintiff suggested that the Court should consider Pohnpeian custom and tradition in deciding how to value the anger and violation plaintiff had experienced as a Pohnpeian. Plaintiff asked the Court to stand in his shoes, imagine how upset and violated it would feel in his position, and award damages on that basis.

Defendant argued that plaintiff has suffered no injury that must be compensated because there is no pecuniary value in plaintiff's image. Defendant also argued that the Court should consider that there is no possibility of future damages because there are no more postcards in circulation for sale. While outrage and anger are compensable. In mitigation, defendant argues that the Phoenix employee who took the picture was a foreigner, and the Court has ruled that there was no malice. Defendant argues that any mistake the Nanmwarki made in granting consent should operate to excuse the defendant from paying compensatory damages. Under Pohnpeian custom, if people act on behalf of the Nanmwarki, then there can be no damages to a third party. For these reasons, the Court should award as damages only the income from the sale of the postcards, based on the number of postcards sold and the price of those postcards.2

The Court finds that plaintiff has sustained compensable injury. Plaintiff testified that he suffered and continues to suffer embarrassment and emotional upset as a result of defendant's publication of his image. His reaction was intensified because he felt that he had been used by people more powerful or wealthier than he was. He also felt he had not been accorded the respect he believed was due him from his traditional leader. The Court finds that the plaintiff has been genuinely affronted by his portrayal in a Phoenix postcard. The Court finds credible Joseph Mauricio's testimony that he has been teased, embarrassed, and repeatedly made to feel uncomfortable. The Court does not doubt that this event has the plaintiff to question his allegiance to his traditional leaders. The Court also finds that plaintiff's reaction to the publication of his image was within the bounds of a reasonable Pohnpeian's reaction. Gallen Soswa and Lolasko Soswa both testified that they too would have been upset to have been photographed for commercial purposes without their personal consent. Like the plaintiff, both of these witnesses grew up in Kitti, and have had little exposure to cameras.

The Court finds little instruction for assessing damages in this invasion of privacy case in previously decided FSM cases. Privacy cases in other jurisdictions do provide some useful guidance. See Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955) (jury verdict of $1,200 upheld where company published plaintiff's likeness in an advertisement appearing in a daily newspaper); Olan Mills, Inc. of Texas v. Dodd, 353 S.W.2d 22 (Ark. 1962) (award of $2,500 to compensate for humiliation, embarrassment and mental anguish was not excessive where a card containing plaintiff's picture was mailed to people in her local area as part of an advertising campaign, a friend first advised plaintiff that her picture had been distributed, plaintiff overheard remarks about her from people on the street, and one of the company's door to door salesmen came to plaintiff's house and showed her own picture to her while soliciting her business); Faber v. Condecor, 477 A.2d 1289 (N.J. Super. 1984) (jury verdict for $45,000 for invasion of privacy upheld where family's picture was contained in picture frames sold locally and in supermarkets and other stores throughout the country, and where plaintiff suffered anxiety that publication could affect jeopardize his job for a competing company).

FSM cases awarding damages for mental pain and suffering outside the privacy context are also instructive. See, e.g., Primo v. Refalopei, 7 FSM Intrm. 423, 435 (Pon. 1996) (mother awarded $20,000 for her mental pain and suffering for the loss of seventeen-year old daughter); Ludwig v. Mailo, 5 FSM Intrm. 256, 262 (Chk. S. Ct. Tr. 1992) ($10,000 for parents' pain and suffering from loss of their two-year old daughter); Plais v. Panuelo, 5 FSM Intrm. 179, 207-08, 212-13 (Pon. 1991) (prisoner awarded compensatory damages of $6,000 for confinement for 50 days by Pohnpei State police in unsanitary conditions, which reflected a lack of governmental respect for the dignity, humanity and well-being of prisoners); Alaphen v. Municipality of Moen, 2 FSM Intrm. 279 (Truk 1986) (prisoner awarded $1,800 for unlawful infliction of punishment and humiliation, where he was stripped naked, abused, and where his abuse was witnessed by others through the windows of the municipal office where he was detained). However, these cases are typically personal injury, wrongful death or civil rights cases, and have very different facts and circumstances from the case now before the Court. For this reason, the Court finds that the cited United States cases, which are far more factually analogous, provide a better model for assessing damages in this particular case.

There is no direct evidence of the amount of damages Joseph Mauricio has sustained, nor the amount of money that can compensate him for that injury. Nevertheless, the Court, as trier of fact, must assess an appropriate level of compensatory damages for that injury. In reaching this determination of damages, the Court has considered that plaintiff's injury has occurred in a small community, which has intensified his embarrassment and humiliation. The Court has also considered that, as a result of defendant's actions, plaintiff has been made to question his role in his own traditional culture - an injury that is difficult to quantify in monetary terms. Against these factors, the Court has weighed the fact that defendant acted upon the consent of the Nanmwarki, which, though it does not relieve defendant of its duty to obtain personal consent from the plaintiff, does lessen defendant's culpability. Finally the Court has considered that plaintiff's discomfort over his representation in defendant's postcards will diminish over time because these postcards are no longer being produced or sold. After carefully considering the testimony presented by both parties, the Court awards plaintiff $3,000.00 in compensatory damages.

The Court will not award compensatory damages for unjust enrichment, finding that this claim conflicts with plaintiff's claim for compensatory damages. See 62A Am. Jur. 2d Privacy § 253 (1990) (it is inconsistent for a plaintiff who wishes to recover for invasion of privacy to also claim the right to participate in the profits of publication); Id. § 256 (where a cause of action is brought for invasion of privacy together with another cause of action based on the same objectionable behavior under another theory, it has generally been held that only one recovery may be awarded).

Conclusion

Plaintiff's claim for compensatory damages is hereby granted in the amount of $3,000.00. Plaintiff's claim for punitive damages is hereby denied. Let judgment be entered accordingly.