The family of Evans handyman Barry Moss filed a civil lawsuit Monday against an Angola bar owner whose sport utility vehicle, according to police, is the vehicle that fatally injured Moss last year.
Although she has not been prosecuted criminally in connection with the death, Gabriele “Gabe” Ballowe is accused in court papers of being the “owner and operator” of the vehicle that hit Moss and then took off from the accident scene, leaving him to die in the snow.
The lawsuit also alleged that Ballowe was intoxicated and drove at an unsafe speed.
The wrongful-death lawsuit did not seek a specific dollar amount.
Moss family attorney Michael P. Caffery filed the lawsuit in State Supreme Court.
“The Evans police list Ms. Ballowe on their reports as the driver of this vehicle. Based on all the evidence from our investigation, and especially, the police investigation, we believe she was driving this vehicle,” Caffery told The Buffalo News. “She certainly never reported the vehicle stolen.”
“We’ve been holding off on filing our case,” Caffery added. “We were waiting to see what is going to happen with the criminal investigation. Now that is sort of in limbo, we’re moving forward.”
In court papers, Caffery said he believes Moss was struck by Ballowe’s vehicle sometime between 11:45 p.m. Dec. 21 and 12:15 a.m. Dec. 22. The court documents allege Moss suffered from “fright, significant pain ... and exposure to extreme cold temperatures” for several hours after the SUV hit him.
Exercising her constitutional rights, Ballowe has refused to answer any questions from police about the accident for the past six months.
In the civil case, if she is subpoenaed to testify, she will either have to answer questions at trial or invoke the Fifth Amendment and refuse to answer questions in open court.
Ballowe has refused to comment on the case.
Her attorney, Thomas J. Eoannou, said Monday that he could not comment on the allegations in the civil lawsuit. Eoannou has previously told The News that the death of Moss was “a tragic accident,” but he has declined to say whether Ballowe was driving the SUV when it hit Moss.
“I just can’t comment on what is going on right now,” Eoannou said Monday.
The case has upset many residents of Evans. Some have posted lawn signs seeking “Justice For Barry Moss,” and others have used Facebook, The News website and other social media to criticize Ballowe. Erie County District Attorney Frank A. Sedita III and the Evans Police Department have also been targets over the lack of criminal charges.
Family members of Moss and officials of the Crime Stoppers program are offering up to $11,000 in rewards for information leading to a conviction in the case. Police ask that anyone with information about the case contact Evans police at 549-3600 or Crime Stoppers at 867-6161.
Moss, 52, was struck and killed on Route 5 near Gold Street in Evans. Evans police said Moss was either riding his bicycle or walking it along the side of the road after he headed home after a night of drinking with friends.
Because Moss’s DNA was found on Ballowe’s 2013 Ford Explorer, and because pieces of Ballowe’s vehicle were found at the accident scene, Evans Police Chief Ernest P. Masullo said police are certain that Ballowe’s SUV is the vehicle that fatally injured Moss.
And because of “very extensive” circumstantial evidence, police are convinced that Ballowe, 48, was driving the vehicle when it hit Moss, Masullo told The News.
Witnesses saw Ballowe get into her SUV alone minutes before Moss was hit, after eating and drinking with friends at a Hamburg restaurant. Minutes after Moss was hit, another witness saw the Ballowe vehicle pull into the parking lot behind Ballowe’s residence, law enforcement officials said.
So far, no charges have been filed against Ballowe or anyone else in the case. An Erie County grand jury voted last month – at the urging of a prosecutor from the District Attorney’s Office – not to indict Ballowe.
Masullo and Sedita disagree over whether police have obtained enough evidence to warrant criminal charges against Ballowe.
The civil lawsuit was filed in behalf of Moss’s ex-wife, Eva M. Valo, and his three daughters, Megan Moss of Angola, and Cassandra Moss and Ashley Venters, both of Buffalo.
“The past few months have been an awful, tragic time for Barry Moss’ family – his mother, his daughters, his sisters and grandkids,” Caffery said. “It’s been traumatic.”
The lawsuit alleged the accident was caused solely by Ballowe’s “negligent, careless and/or reckless” operation of the SUV.
Ballowe “failed to keep a proper lookout,” drove at “an excessive and dangerous rate of speed,” failed to yield right-of-way to Moss and failed to take “proper precautions” to prevent the accident, the lawsuit alleges.
“I can only say that, statistically, most civil cases wind up being settled before trial,” Caffery said. “I’ve been doing this for 30 years, and I would estimate that about 80 percent of my civil cases have been settled before trial. Both sides know what legal issues they’re dealing with long before the trial, and often, you’re able to reach some kind of agreement.”