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MR v. Turcott2/3/2005
to simply claim that the moving party's submission should be disbelieved or discounted." Id., (emphasis added); see also Schaidler v. Mercy Med. Ctr. of Oshkosh, Inc., 209 Wis. 2d 457, 475, 563 N.W.2d 554 (Ct. App. 1997) (party opposing summary judgment may not prevail "merely by discounting the expert testimony put forth" by the movant).
. It is true, as Turcott argues and his cited authorities establish, that a court may not make credibility determinations when ruling on summary judgment motions. Rather, it must take the affidavits and other evidentiary submissions "at face value" in order to determine whether any material facts are placed in dispute. Here, M.R.'s prior statements relied on by Turcott at summary judgment place in dispute only the precise nature and extent of Turcott's intentional "offensive contact," but nothing in the summary judgment record places in dispute that some offensive contact occurred. Contrary to Turcott's suggestion, our conclusion to affirm the summary judgment on liability does not require that we draw an inference of guilt against Turcott for exercising his Fifth Amendment privilege, although such an inference would be permissible and would lend additional support to our conclusion. We draw no inference against Turcott for remaining silent but consider only that he submitted no evidence of any kind on summary judgment that counters or contradicts M.R.'s material averments that Turcott engaged in one or more forms of intentional, offensive bodily contact with her.
. Turcott also seeks to rely on Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis. 2d 354, 360, 166 N.W.2d 148 (1969), but we conclude that such reliance is also misplaced. The supreme court in Ianni affirmed a liability verdict in a personal injury case, rejecting the appellant's claim that it should be set aside because the sole surviving eyewitness to a car accident gave testimony at trial that contradicted an earlier signed statement she had given regarding how the accident had occurred. Id. at 359-60. The court concluded that if the sole witness's trial testimony had been "contradictory and conflicting," the appellant would be entitled to relief from the verdict, but " here the conflict or contradiction arises by reason of an earlier statement given by the witness, it is for the jury to determine the question of the weight and credence to be given the witness-stand testimony and prior extra-judicial statement." Id. at 360-61. The court went on to explain that the credibility of the witness's testimony was a matter to be determined by the jury, not by an appellate court reviewing "only the cold, hard type of a printed record." Id. at 361. Thus, it was for jurors to choose whether to believe the witness's trial testimony or her earlier statements, or they could even decide "that the inconsistencies revealed in trial and pre-trial statements of a witness completely erode his credibility, and give no weight to either statement." Id.
. The cited discussion in Ianni represents nothing more than an exposition of the well-known principle that appellate courts will not second guess a fact finder's credibility determinations unless certain evidence is incredible "as a matter of law." The decision says nothing about how a court is to treat a witness's contradictory or conflicting statements presented on summary judgment. As we have explained, a court may not choose from among conflicting accounts on summary judgment, but must take each one at face value and determine whether they present a dispute of material fact. We and the trial court have done just that with regard to M.R.'s statements presented on summary judgment, and we have concluded that (1) under either of M.R.'s versions of events, Turc
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