The family of slain UW-Madison student Brittany Zimmermann will not pursue a wrongful death claim against Dane County and will instead focus on a claim that the county is responsible for emotional distress that Zimmermann may have suffered before her death.
Meantime, a state appeals court panel ruled Thursday that Zimmermann's fiance can't sue the county and others.
The decision by Zimmermann's family not to continue the wrongful death claim came three weeks after Dane County Circuit Judge Maryann Sumi delayed the lawsuit pending the release of evidence from the murder investigation.
"We had to make a choice, and that was the choice we made," said Robert Elliott, the family's lawyer, said in an interview Thursday. He declined to be more specific.
Elliott filed a stipulation Wednesday in Dane County Circuit Court that said Zimmermann's estate and Dane County agreed to dismiss the wrongful death claim. He also wrote that the stay of proceedings ordered last month by Sumi can be lifted because it is now unnecessary.
The county had sought dismissal of all claims against it for lack of evidence, but last month Sumi denied the motions, stating that there were issues of fact that should be decided by a jury. Now the wrongful death claim will not be decided.
"From the county's perspective, there isn't evidence to prove that one claim," Dane County Corporation Counsel Marcia MacKenzie said Thursday. "(The Zimmermanns) apparently came to that conclusion with regard to that one claim."
Zimmermann, a student from Wisconsin Rapids, was strangled and stabbed to death in her West Doty Street apartment on April 2, 2008. No arrest has been made in the case.
A trial in the Zimmermann lawsuit is scheduled for December.
The case against Dane County and former 911 dispatcher Rita Gahagan will now focus on whether Zimmermann suffered emotional distress because her call to 911 was mishandled. The case will also explore whether Wisconsin Management and the apartment building's owners, Ross Endres and Carl Van Rooy, are responsible for alleged building code violations at the West Doty Street apartment building that allowed Zimmermann's killer to enter the apartment.
Under state law, as a municipality Dane County would have to pay no more than $50,000 for each claim against it. There is no cap for claims made against municipalities for civil rights violations, but the lawsuit makes no civil rights claims.
Wisconsin Management, Endres and Van Rooy have maintained throughout the case that there were no problems with the building.
On Thursday, the appeals panel ruled that Zimmermann's fiance, Jordan Gonnering, cannot sue Dane County and the owner and manager of the apartment building where the couple lived.
The appeals court agreed with lower court rulings because the couple were not married, Gonnering may not file a claim for negligent infliction of emotional distress. The law limits such claims to spouses, parents, grandparents or siblings of a victim, the 4th District Court of Appeals ruled.