A civil lawsuit accusing a Town of Evans lakefront bar owner of hitting and killing an Angola man with her sport utility vehicle is moving forward in State Supreme Court.
The wrongful-death lawsuit was filed just over a year ago by family members of Barry T. “Bob” Moss, 52, who was killed by a hit-and-run driver in Evans in December 2013.
The lawsuit, which accuses Gabriele Ballowe of driving the vehicle that killed Moss, seeks unspecified damages.
Unless an out-of-court settlement is reached, attorneys for both sides in the lawsuit will meet with Justice Frederick J. Marshall on Aug. 31. A trial date in Buffalo would then be set.
“At this time, the case is moving forward,” said Michael P. Caffery, attorney for Moss’ estate. “There will be depositions of witnesses prior to the date when we meet with the judge. That would be Gabriele Ballowe and also my client, Eva Moss, the administrator of the estate.”
Ballowe, 49, has never been charged criminally in the case, even though Evans police and a state Department of Motor Vehicles administrative law judge have both concluded that she was the driver of the vehicle that hit Moss and then left the scene without reporting the accident.
Exercising her constitutional right against self-incrimination, Ballowe has refused to talk to police about the incident. Caffery said he will ask Ballowe to appear at a pretrial deposition where she would be questioned extensively about her actions on the night Moss was killed.
“She could refuse to answer my questions at the deposition. Then she would be called as a witness at the trial,” Caffery said. “If she refuses to answer questions at the trial, the jury could take that refusal into consideration when it renders a verdict.”
Caffery said he could not speculate whether a settlement will be reached prior to trial.
“I can only tell you that, at this point, the case is moving toward a trial at State Supreme Court,” he said.
Michael P. Stuermer, Ballowe’s attorney in the civil case, could not be reached to comment.
Thomas J. Eoannou, who represents Ballowe in the criminal investigation, said he does not know what is happening with the civil case.
Eoannou told The Buffalo News that Moss’ death was “a tragic accident” but declined to say whether Ballowe was driving the vehicle when it struck Moss.
“As I have said from Day One of this investigation, this was a tragic accident, there was no crime committed by Gabriele Ballowe, and we do not believe this case should be in the criminal system,” Eoannou said. “She continues to exercise her right to remain silent.”
Statistically, the large majority of civil cases similar to the Moss-Ballowe case get settled out of court before trial, said Amherst attorney Christopher J. O’Brien, co-director of the trial advocacy program at University at Buffalo Law School.
“I say that not knowing all the facts of the case,” O’Brien said. “Nationally, about 98 percent of civil cases settle before trial, and locally, it is becoming more and more rare for such a case to go to trial. More and more, our system is geared toward settling these cases.”
If the civil case does go to trial, finding jurors who would not hold her silence against Ballowe would be “a very big concern, a major concern” for the defense during jury selection, O’Brien said. He noted that the burden of proof needed in a civil trial is “much lower” than it would be in a criminal trial.
“In a civil trial, the burden of proof is 51 percent. You would have to show that it was more likely than not that she did this,” O’Brien said. “In a criminal trial, you need proof beyond a reasonable doubt.”
The case has been controversial because of the disagreement between Evans police, who believe that there is plenty of physical and witness evidence to support criminal charges against Ballowe, and Erie County District Attorney Frank A. Sedita III, who says the evidence they have gathered is insufficient.
Earlier this year, Sedita told The News he believes that Ballowe drove the vehicle that hit Moss along Route 5 late on the night of Dec. 21, 2013, or early on the morning of Dec. 22.
Sedita said, however, that in his view, police have not turned up enough evidence to support a prosecution. The district attorney also said toxicology tests showed that Moss was heavily intoxicated that night.
Glenn E. Murray, an administrative law judge with the DMV, revoked Ballowe’s license to drive after a hearing in January. Murray wrote in his decision that he found “abundant evidence” that Ballowe had been drinking in a Hamburg bar and that she was the driver who injured Moss and left him at the scene.
The standard for proof in a DMV hearing is not as stringent as it would be for a criminal trial, Sedita responded.
Ballowe is the longtime co-owner of the South Shore Beach Club, an Angola bar on Old Lakeshore Road. The property, with 273 feet of Lake Erie beachfront, has been for sale for months. As of last December, Ballowe was asking just under $1.5 million.
Evans police are still working closely on the case with help from State Police, the FBI and other law enforcement agencies, Police Chief Ernest P. Masullo said. He asked that anyone with information about Moss’s death contact his department at 549-3600 or the Greater Buffalo Metropolitan Crime Stoppers organization at 867-6161.
Crime Stoppers is offering an $11,000 reward for information leading to a conviction.