Order denying defendants' motion for summary judgement dismissing plaintiff's battery claim (count IV)

3 March 2003



IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
		
ESTATE OF LISA MCPHERSON, by and		
through the Personal Representative,	
DELL LIEBREICH

Plaintiff,	Case No. 00-5682-11	
vs. 
CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, 
JANIS JOHNSON, ALAIN KARTUZINSKI, and
DAVID HOUGHTON, D.D.S.

Defendants.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT DISMISSING PLAINTIFF'S BATTERY CLAIM
(COUNT IV)

This cause came on to be heard on Defendants' Motion for Summary Judgment
Dismissing Plaintiff's Battery Claim, and Supporting Memorandum filed on
or about September 23, 2002. The Plaintiff filed her Plaintiff’s Reply to
the Defendants' Motion for Summary Judgment of Battery in December, 2002.
Later, both sides agreed that this court could decide this motion without
the need of any further hearing. This court being fully advised, finds as
follows:

Battery is an intentional tort. Thus, I agree with both the plaintiff and
the defendants that no act of negligence, whether simple, gross or culpable,
gives rise to the tort of battery. This court did not see any acts of negligence
raised in the factual allegations of Count IV of the Plaintiff's complaint.
However, the plaintiffs use of the words, "in reckless ...disregard for the
rights and safety of Lisa McPherson" in [paragraph] 46 of the plaintiff's
complaint, sounds of negligence, and as such, is stricken. The jury will
be instructed that only intentional acts are actionable and compensable as
a battery.

 

	Plaintiff's complaint identifies the acts of battery for which she is seeking
compensatory and punitive damages. They are, (1) "non-consensual physical
contact", (2) "non-consensual restraint", (3) "use of an irrigating
syringe to force pseudo-medication concoctions down her throat", and
(4) "forced injections or other delivery of illegally obtained prescription
medications and other substances". Each of these alleged acts could constitute
the tort of battery.
	Since civil and criminal battery is synonymous, the standard jury instructions
in criminal cases are instructive. A battery can occur when a defendant either
(a) intentionally touches or strikes a victim against his or her will or
(b) intentionally causes bodily harm to a victim. Fl. Stat. 784.03, and
the standard jury instructions used in criminal cases.. What can be readily
seen is that there are issues of the defendant's intent and the victim's
consent. Issues of both intent and consent are issues of fact for a jury,
and generally, cannot be resolved by a motion for summary judgment. In this
case, both intent and consent are in dispute. Therefore, these issues cannot
be resolved by way of summary judgment.

Neither the First Amendment nor RFRA permits a church to commit either the
criminal act or intentional tort of battery on one of their parishioners.
The state of Florida has a compelling state interest in prohibiting a church
from intentionally causing bodily harm to its members and from intentionally
touching or striking them without their consent.

Finally, the facts regarding all of the alleged acts of battery that are
alleged in plaintiff's Count IV are in dispute, and cannot, therefore, be
resolved, in part or in whole, in this motion for summary judgment. Accordingly,
it is

ORDERED AND ADJUDGED that the Defendants' Motion for Summary Judgment Dismissing
Plaintiff's Battery Claim (Count IV) is denied.

DONE AND ORDERED in St. Petersburg, Pinellas County, Florida this 3rd day
of March, 2003.

[signed]
Susan F. Schaeffer, Circuit Judge



To Life and Death of Lisa McPherson