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Judge denies city's motion to dismiss Plush family lawsuit

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Posted at 10:09 AM, Jan 22, 2020
and last updated 2020-01-22 18:22:22-05

CINCINNATI — A lawsuit brought against the city of Cincinnati by the Plush family after their son's death will move forward in court, a Hamilton County judge ruled Wednesday.

Judge Robert Ruehlman heard statements from the Plush family's attorney and the city's attorney in December and ruled the lawsuit will not be dismissed as requested by the city.

"What Judge Ruehlman has said is there are facts which are seriously in dispute, and there is a way that a jury could find in favor of the Plush family on all the theories that we plead," said Al Gerhardstein, the Plush family's attorney.

Kyle Plush , 16, called 911 twice for help after he became trapped in the back of his family's van near Seven Hills High School in 2018. He died of asphyxiation when no one rescued him in time. The Plush family filed a wrongful death lawsuit against the city and several city employees.

The Plush family's lawsuit claims the two 911 call takers who took Plush's calls and the two police officers who responded to the area where Plush's body was later found “acted negligently, recklessly, wantonly, willfully, and with deliberate indifference” in failing to protect Kyle the day he died.

However, the city filed to dismiss the charges under the premise of government immunity.

"The individual defendants are entitled to immunity because none of their actions rose to the level of a perverse disregard of a known risk," said deputy city solicitor Peter Stackpole in court."They did not act recklessly."

Stackpole has already filed an appeal to the judge's Wednesday decision. His appeal goes to the first district court and from there, attorneys can expedite a briefing schedule to expedite a ruling.

"It is not the court's job to determine credibility of the facts nor the culpability of the facts," the court's ruling reads. "There are facts that have been presented to overcome political subdivision immunity and individual immunity."

The final pre-trial date for the case is set for March 17.