City cops reviewing wrongful death suit

By Patricia Meade

An officer’s pursuit of a traffic violator at 75 mph was not reasonable, investigators said.

YOUNGSTOWN — It’s been three years since a police officer in hot pursuit caused the death of a motorist and touched off a wrongful-death lawsuit.

The civil lawsuit filed in Mahoning County Common Pleas Court is against Detective Sgt. William B. Ross III and the city. Final motions are expected to be filed by next month and, barring a settlement, trial is set to begin April 28, 2009, in Judge Maureen Sweeney’s court.

The passenger side of Franklin Berry’s 1986 Oldsmobile Delta 88 was struck broadside at the intersection of Williamson Avenue and Erie Street at 12:13 a.m. Oct. 20, 2005. Reports show the impact propelled the Oldsmobile into a wall in front of 109 Williamson.

Berry, 52, of East Dewey Avenue, was dead at the scene.

Lt. Mark Milstead, then-head of the Accident Investigation Unit, said after the crash there were no skid marks to show brakes had been applied by Ross or Berry before impact.

Berry had been southbound on Erie, and Ross was eastbound on Williamson. The four-way intersection is controlled by a traffic light.

Ross said he was in pursuit of a motorcycle on Williamson that had done a “wheelie” and almost collided with his cruiser, reports show. The Ohio State Highway Patrol investigation of the crash determined that Ross’ speed was 75 mph at the time of impact with Berry’s car.

An investigation by the police department’s Internal Affairs Division concluded in January 2006 that Ross’ pursuit at 75 mph for a minor traffic violation was unreasonable and the violation of pursuit policy warranted discipline, records show. The pursuit policy states speed at an intersection controlled by a sign or light should be reduced to 25 mph. Also, reduced speed does not relieve the driver from assuring clear passage before proceeding nonstop through an intersection.

The determination of Ross’ discipline fell to Police Chief Jimmy Hughes. Hughes said he doesn’t recall what the discipline was and would have to check.

Lt. Rod Foley, head of Internal Affairs Division, said nothing was sent back to him from the chief’s office to show what, if any, discipline was given out.

A message left on Ross’ phone for comment was not returned.

The Vindicator made a public records request with Hughes last week to review Ross’ personnel file. The request was turned over to the law department.

Before review of the file, which is scheduled for this week, Dan T. Pribich, deputy law director, was asked to provide the newspaper with documents that relate to discipline. No discipline was found that relates to the crash in which Berry died.

The wrongful-death lawsuit was filed by Canfield attorney Brian Kopp on behalf of Berry’s estate. The lawsuit alleges Ross acted in a willful, wanton and/or reckless manner and his conduct demonstrated a conscious disregard for the rights and safety of others. The plaintiffs ask the court for damages in excess of $50,000 plus the cost of the litigation and an amount deemed appropriate by the court.

Kenneth P. Abbarno, a Cleveland attorney, is representing the city. Court papers show the city maintains Ross, whose traffic light on Williamson was red, could see that the traffic light for Erie (Berry’s path of travel) was turning from yellow to red and Ross deemed it appropriate and reasonable to continue pursuit through the intersection. Berry proceeded into the intersection into Ross’ path, not perceiving the officer’s approach with lights and siren, the lawyer wrote.

Abbarno said in court papers that the plaintiff cannot establish that Ross’ actions rose to the level of wanton misconduct. The lawyer said he had no comment other than what has been filed in court papers, adding the city is standing behind Ross.

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