Kyle Plush wrongful death lawsuit can proceed against 5 Cincinnati employees, appeals court says

Updated: Dec. 16, 2020 at 8:58 PM EST
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CINCINNATI (FOX19) - The Kyle Plush wrongful death lawsuit can proceed against five former and current employees in their individual capacities, but not in their official capacities and not the city itself, the Ohio First District Court of Appeals ruled Wednesday.

The decision partially overturns a lower court decision but still returns the case to that court for a trial. The city wanted it entirely tossed out.

The decision means Kyle Plush’s parents can pursue their wrongful death lawsuit against former City Manager Harry Black, 911 call takers, Amber Smith and Stepheanie Magee and Cincinnati Police Officers, Edsel Osborn and Brian Brazile.

Lawsuit: 911 calls from teen who died in van mishandled

“We find that Ron and Jill Plush’s (”the Plushes”) claims squarely attack the city of Cincinnati’s provision of emergency medical or rescue services, which is shielded by governmental immunity. Therefore, we reverse the denial of appellants’ motion to dismiss as to the city and its employees in their official capacities,” the decision reads.

“However, the complaint sufficiently alleges at least reckless conduct to preclude immunity as to the individual defendants. Therefore, appellants’ motion to dismiss was properly denied as to Harry Black, Amber Smith, Stephanie Magee, Edsel Osborn, and Brian Brazile, in their individual capacities.”

The city indemnifies employees in their official capacities, meaning the city would be liable for any judgment or settlement involving the employees in their official capacities.

It was not immediately clear Wednesday if the city would still assist employees with individual claims.

The lawsuit was filed by Kyle’s parents last year, alleging the city and several employees were at fault in the April 2018 death of the 16-year-old Seven Hills School student.

An attorney for the Plush family has said officers thought the incident was a prank and did not treat it as a high priority call.

City attorneys have argued the city and its employees were not acting recklessly.

Attorneys for the city and employees have argued 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 in court records earlier this year.

An attorney for the Plush family said in a news release Wednesday they were “very pleased” with the appeals court’s decision.

“The claims against every individual defendant can now proceed to trial,” Al Gerhardstein said.

“While the City was held to be immune, the claims against former city manager Harry Black capture the systemic failures that led to Kyle’s death and will help in our ongoing effort to make this case a vehicle for 911 reform in Cincinnati. In the Court’s words, Black’s course of conduct shows a pattern of wanton or reckless actions (or inactions).’”

Gerhardstein said they are eager to return to the trial court, conclude discovery and try the case.

“We want the call for justice on behalf of Kyle to be heard by all those in power including the Mayor, City Manager and all those on City Council,” he said.

A statement from the City of Cincinnati’s Solicitor’s Office released Wednesday night reads:

“Today, the First District Court of Appeals released a lengthy opinion that affirmed in part and reversed in part the trial court’s denial of the City’s Motion to Dismiss in the Plush v. City litigation. In the appeal, the City argued that the City and the individual employees who were named in the lawsuit are immune from liability under Ohio law. The appellate court agreed that the City is immune, but it found that it is too early in the litigation to find that the individual employees are immune. A dissenting judge would have found that the officers named were immune. (…)

“It is important to note that in a motion to dismiss, the courts must accept all the allegations in the complaint as true. Today’s decision is not a final decision regarding liability in this case. The Solicitor’s Office will determine the next steps of the defense. It remains true that the City will continue to defend and indemnify the employees named in the lawsuit.”

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."

When both sides appeared before Judge Ruehlman to argue whether the case should proceed, 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.

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.

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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.

FOP President Dan Hils has said Plush’s death is a tragic accident and not the fault of police or the 911 call center.

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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 also attended a National Emergency Number Association Conference.

MORE | City launches ‘Smart 911’ to provide critical info to first responders

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