Judge hears arguments in Kyle Plush wrongful death lawsuit

Dismissal hearing in Kyle Plush case

CINCINNATI (FOX19) - The Kyle Plush wrongful death lawsuit against the city of Cincinnati, its former city manager, two police officers and two 911 call takers went to court Thursday.

Hamilton County Common Pleas Court Judge Robert Ruehlman heard oral arguments from both sides over the city’s motion to dismiss the case.

“The city wants to close its doors to the Plush family,” their attorney, Al Gerhardstein, told the judge. “We ask you to keep those doors open.”

Attorneys for the city and employees say the city and its workers are protected under government immunity and their actions are not criminal or recklessly negligent.

“No one wants the tragedy that occurred on April 10, 2018 to ever happen again. Since that day, the City has worked and will continue to work to improve its 911 system," city attorneys wrote the court.

Ruehlman said he will issue his decision on Jan. 22.

The lawsuit, filed earlier this year, alleges the city and several people are at fault in the April 2018 death of the 16-year-old boy.

Lawsuit: 911 calls from teen who died in van mishandled

Kyle died after he became pinned by a folding bench seat in the back of his family’s 2004 Honda Odyssey minivan parked at Seven Hills School in Madisonville.

He called 911 twice to plead for help, providing his location and a description of the vehicle, according to the suit: “He screamed, pounded, begged for help. No one helped him."

In court Thursday, Kyle’s parents clasped hands and lowered their heads as their lawyer read a transcript of their son’s 911 calls, which included: “I probably don’t have much time left. So tell my mom I love her if I die.”

Kyle died due to “asphyxiation due to chest compression” after becoming pinned by a folding seat in the vehicle, according to the Hamilton County Coroner’s Office.

The teen’s body was not found for hours. His father finally located him in the van when he went looking for his son after he didn’t return home from school.

Gerhardstein has said the lawsuit is not about money, but about forcing change so nothing like this ever happens again.

“This case should be heard on the merits to bring justice to Kyle’s family and to secure rights for all persons who rely on 9-1-1 services in Cincinnati,' Gerhardstein wrote in his memo to oppose the city’s motion to dismiss the lawsuit.

The family is seeking court-supervised reforms of the city’s 911 system and unspecified compensatory and punitive damages.

The lawsuit alleges the city knew about previous complaints regarding the police department’s Emergency Communications Section failing to locate callers and delaying dispatch in response to emergency calls.

The 911 center, traditionally run by the police department, was moved to civilian control after issues erupted with the fire department, and then reverted back to police control in recent years.

It also has struggled with staffing problems, inadequate training, and cellphone call routing leaving some calls unanswered.

The Hamilton County Prosecutor’s Office reviewed Kyle’s death. Prosecutor Joe Deters announced in November 2018 no charges would be filed.

He said in a statement at the time his office “thoroughly reviewed the Cincinnati Police Department and Hamilton County Sheriff’s investigation into this incident” as well as the result of reviews from two independent firms of Plush’s death and the response by the police and 911 call takers.

“After a review of all of these documents, no criminal charges are appropriate and, therefore, none will be filed,” his statement reads.

City Council promptly took action following Kyle’s death, retaining two independent firms to review the case and they made sweeping changes to emergency response procedures.

They held a series of public meetings during a public inquiry, hours-long sessions as Plush’s family patiently sat through as they sought answers.

The Plushes returned for more meetings that would follow over the coming months but ultimately said they were still seeking answers.

They publicly supported Council’s approval of $454,000 to increase 911 staff and to improve technology at the 911 center as part of a 12-month action plan.

The city launched a new system called Smart911 designed to make it easier for first responders to find 911 callers in an emergency.

Once people register for it, their emergency information will automatically be displayed to call takers when they dial 911.

The Plush family and city leaders attended a National Emergency Number Association Conference.

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