Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 26 of 54 touching when he applied the Tesla coil to Zach’s arm. And Freshwater cannot free himself from liability for battery by alleging that school officials authorized or ratified his use of the Tesla coil or that other teachers used the Tesla coil on their students as well, as both of these theories lack logic and legal support. 1. Freshwater Acted With The Requisite Intent To Commit Battery. Freshwater claims that he lacked the intent to commit battery because he “was not aware that a harmful contact could result” from applying the Tesla coil to human skin. (Id. at 9.) But Freshwater’s admitted knowledge of this device proves otherwise. Freshwater knew that the Tesla coil “put out a lot of volts.” (Freshwater Termination Hearing Tr., John Freshwater Test., 10/28/08, at 382, 384 (attached as Ex. E to Pls.’ MSJ).) He also was well aware that the device creates an electric charge, and that it is capable of causing subcutaneous burns. (Id.; see also Def. Freshwater’s Dep. at 156, Oct. 14, 2009 (hereinafter “Freshwater Dep.”) (responding “Sure” when asked whether he understood that “electrical shocks [could] cause burns”) (attached as Ex. A to Pls.’ MSJ).) Additionally, Freshwater testified at his termination hearing that the Tesla coil left a slight red mark on students’ arms when he had applied the device in past years, and that students frequently pulled their arms away as he applied the Tesla coil because “it hurts.” (Freshwater Termination Hearing Tr., John Freshwater Test., 10/28/08, at 399, 401.) Freshwater also has admitted that the pattern in which he applied the Tesla coil formed the shape of a cross. (See Deschler Mem. in Opp. at 5 (Freshwater, in describing how he applied the Tesla coil to his students, stating, “I am going to slide it down your arm, and I am going to go from your elbow towards your wrist”) id. (noting that once Freshwater completes “the vertical motion [with the Tesla coil] from [students’] elbow to their wrist,” he “will go across the arm”).) Students to whom Freshwater applied the Tesla coil confirm that their teacher’s use of the device on their 19
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 27 of 54 arms left cross-shaped marks. (See, e.g., Student No. 5 Dep. at 29, Feb. 16, 2009 (testifying that Freshwater marked his arm with “a lower case T or a cross”) (attached as Ex. H).). And as Freshwater acknowledges, another Mount Vernon Middle School teacher who uses the Tesla coil testified during the termination hearing that he warns students that “it may or may not leave a mark on their arm” and that “sometimes it left a mark on [his] arm.” (See Freshwater Termination Hearing Tr., Dino D’Ettore Test., 1/14/09, at 1752 (attached as Ex. G to Deschler Mem. in Opp.).) Having used the Tesla coil for 21 years, having seen red marks on students’ arms, and having acknowledged that students pull their arms away because “it hurts,” Freshwater certainly knew that applying the Tesla coil to Zach’s arm would cause harm. (See Freshwater Dep. at 154.) To counter the evidence, including his earlier sworn testimony, that he possessed the necessary intent for battery, Freshwater offers only his own contradictory deposition and later termination-hearing testimony (provided more than a year after his original testimony in the termination proceeding), that he “has never seen red marks on students’ arms.” (See Deschler Mem. in Opp. at 6-7.) Freshwater cannot create a fact dispute for summary-judgment purposes simply by pointing to his own inconsistent statements and attempts to recant earlier testimony. Having offered nothing more than self-serving contradictions, he cannot avoid summary judgment on the Dennises’ battery claim. 2. Freshwater’s Application Of The Tesla Coil To Zach’s Arm Constitutes Offensive Contact. In opposing the Dennises’ summary-judgment motion, Freshwater does not deny in his memorandum that he applied the device to Zach’s arm—a fact to which he previously admitted in sworn termination-hearing testimony. (See, e.g., Freshwater Termination Hearing Tr., John Freshwater Test., 10/28/08, at 399; see also Freshwater Dep. at 181 (Freshwater responding, 20
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Plaintiffs' reply in support of their motion for partial summary judgment

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