Subject: Schaeffer denies summary judgment

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. 00568211
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) "nonconsensual physical contact", (2) "nonconsensual restraint", (3) "use of an irrigating syringe to force pseudomedication 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]