Suit over traffic death going to trial

There are too many
questions of fact to dismiss the case, the judge ruled.

By TIM YOVICH

VINDICATOR TRUMBULL STAFF

WARREN — A visiting judge has decided not to grant a summary judgment to Cortland in a lawsuit filed against the city involving a 2006 collision in which a police car struck and killed a 16-year-old girl.

If visiting Judge Thomas P. Curran from Cuyahoga County would have granted the summary judgment Monday, the case would have been dismissed without going to trial.

The lawsuit, filed by the father of Cassandra Thompson of Kinsman, seeks damages against the city, its police department and Patrol Officer Jason Smith, a 14-year department veteran.

Cassandra died after the marked police car Smith was driving hit her about 11:30 p.m. July 25 as she tried to cross South High Street from a convenience store to a friend’s house, where she was visiting.

Smith and another officer were responding to an emergency call when Cassandra was struck.

In his ruling, Judge Curran wrote that there is no evidence that Smith acted maliciously or in “bad faith in the operation of his cruiser” the night of the crash.

The judge wrote in his decision, however, there is “conflicting evidence that creates a genuine issue of facts as to whether or not Smith’s actions were wanton and reckless.”

In filing for the summary judgment, the city argued that political subdivisions are not liable for civil damages arising from the acts of its employees while in performance of a government duty.

And, it asserted, Smith was responding to an emergency call and the operation of the cruiser did not constitute willful or wanton misconduct.

Judge Curran wrote the difference between willful and wanton misconduct and ordinary neglect can be a fine one and should be submitted to a jury to determine.

The judge noted that although the cruiser was not operating with its emergency lights or siren activated, that doesn’t directly translate to acting in a willful and wanton manner.

Concerning the city’s position that it is immune from liability, Judge Curran wrote that immunity only applies in cases of policymaking, planning or enforcement powers, none of which apply in this case.

The trial is scheduled to begin Jan. 22 with Judge Curran presiding.

yovich@vindy.com