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MR v. Turcott2/3/2005
several appellate decisions that emphasize that a witness's credibility is solely for a fact finder to determine at trial, not for a court to decide when considering a motion for summary judgment. See, e.g., Yahnke v. Carson, 2000 WI 74, , 236 Wis. 2d 613 N.W.2d 102 (" circuit court does not decide issues of credibility on summary judgment."); Fuller v. Riedel, 159 Wis. 2d 323, 332, 464 N.W.2d 97 (Ct. App. 1990) (" here a witness makes contradictory statements, it is within the fact finder's province to accept or rely on either version or to disregard in part or total the other."). Because M.R.'s versions of what happened changed between her initial statement to police and her subsequent accounts, Turcott claims that the jury might have disbelieved her entirely and concluded that he had not engaged in any form of sexually assaultive conduct whatsoever. He faults the trial court's summary judgment ruling for preventing him from attacking M.R.'s credibility at trial or arguing to the jury that no sexual assault had occurred.
. We reject Turcott's argument. We first note that Turcott does not dispute that both of M.R.'s accounts that he submitted and cited in opposing summary judgment would establish his commission of the tort of battery. See Restatement (Second) of Torts ยง 18 (1965) ("An actor is subject to liability to another for battery if ... he acts intending to cause a harmful or offensive contact with the person of the other or a third person ... and ... an offensive contact with the person of the other directly or indirectly results."); see also Wis JI-Civil 2010. Second, Turcott submitted no sworn denial on his part of any of the acts to which M.R. averred, and neither did he submit evidentiary materials to refute M.R.'s averments or to support a defense to liability.
. Our disposition is thus controlled by the well-established principle of summary judgment methodology that parties against whom a properly supported motion for summary judgment is made may not rest on mere denials in their pleadings but must counter the movants' evidentiary submissions with similar proofs of their own. The supreme court explained some twenty-five years ago:
While it is the moving party's responsibility to initially establish a prima facie case for summary judgment, once it is established the party in opposition to the motion may not rest upon the mere allegations or denials of the pleadings, but must, by affidavits or other statutory means, set forth specific facts showing that there exists a genuine issue requiring a trial.... Where the party opposing summary judgment (the defendant in this case) fails to respond or raise an issue of material fact, the trial court is authorized to grant summary judgment .... In this case the defendant failed to respond to the summary judgment motion, either by affidavits or otherwise, and furthermore failed to set forth any facts to demonstrate to the satisfaction of the trial court that a genuine issue of fact existed for trial.
Board of Regents of Univ. of Wisconsin Sys. v. Mussallem, 94 Wis. 2d 657, 672-74, 289 N.W.2d 801 (1980) (citation and footnote omitted).
. More recently, this court has noted that an opponent of summary judgment "may not rely on a conjecture that evidence in support of the motion `may' not be accurate or reliable," but must affirmatively "counter with evidentiary materials demonstrating there is a dispute." Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2001 WI App 148, , 246 Wis. 2d 933, 632 N.W.2d 59. We also emphasized in Physicians Plus that "a party opposing summary judgment [is obligated] to submit materials on summary judgment to counter the submissions of the moving party. It is not enough
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