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JANESVILLE — A Rock County judge has tossed out a lawsuit that most people thought never should have been filed.

“There is no doubt that the jury would find for the defendant,� Judge James Welker wrote in his memorandum decision. “In fact, it is likely that the jury would prefer the option of throwing the plaintiff down the steps of the courthouse.�

The plaintiff was Kurt Prochaska, 40, now an inmate at Fox Lake Correctional Institution.

The defendant was Michael Rainiero, the Janesville doctor who shot Prochaska once in the back after Prochaska broke into his home.

Prochaska, 40, was sentenced to eight years in prison for the burglary, followed by four years of extended supervision. He also was sentenced to four years in prison with two years extended supervision for felony criminal damage, but the criminal damage sentence is concurrent with the burglary term.

Prochaska sued for damages, simultaneously claiming:

-- Negligence: With badly shaking hands, Rainiero “negligently fired a shot and accidentally hit the plaintiff.�

-- Assault and battery: Prochaska agreed that the defendant, confronted by a burglar, had the right to use force to protect himself, his family and his property. But Prochaska contended that the defendant’s use of a gun was excessive force.

On the negligence claim, a jury would have to weigh Prochaska’s negligence against Rainiero’s, Welker wrote.

Prochaska’s negligence consisted of crawling into a house in the middle of the night with intent to commit a felony and “with the knowledge that startled and confused homeowners may take some action to protect themselves, their families and their property,� Welker wrote, adding:

“Certainly he could not expect that the startled homeowner confronted at night by an intruder will calmly ask the burglar to sit down at the kitchen table, drink a cup of herbal tea and join in a chorus of ‘Kum Bay Yah.’�

Rainiero’s negligence would consist of pointing and firing a gun to frighten an intruder but failing to miss the intruder as intended, the judge wrote.

Prochaska’s attorney conceded that no reasonable jury would find Rainiero’s negligence as great or greater than Prochaska’s, Welker wrote.

Agreeing with that concession, Welker dismissed the negligence claim.

On Prochaska’s claim of assault and battery, a jury would have to conclude that Rainiero’s belief that he had to shoot Prochaska in self-defense is not what a person of ordinary intelligence and judgment would have concluded.

Welker decided that no reasonable, properly instructed jury would come to such a conclusion.

“To allow a case as devoid of merit as this one to proceed to trial works an injustice to the jurors who have to hear the case, to the taxpayers who have to pay for it and to the defendant and his family who have to endure the continued trauma resulting from the acts of the plaintiff,� Welker wrote.