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Judges deliberating whether Plush family suit should move to jury trial

Posted at 5:19 PM, Oct 20, 2020
and last updated 2020-10-20 17:54:28-04

CINCINNATI — Three appeals court judges are deliberating whether a wrongful death lawsuit filed by Kyle Plush's family against the City of Cincinnati and several city employees will move on to a jury trial.

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 lawsuit was filed in August 2019 by the Plush family and in January, Judge Robert Ruehlman ruled against the City of Cincinnati's push to have the suit dismissed.

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

The city appealed the decision immediately.

The 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.

Kyle's parents and their attorney, Al Gerhardstein, claim the city's investigation didn't go far enough and they're suing the city, the former city manager, two 911 call takers and two police officers.

The suit names as defendants the two Emergency Communication Center employees who took Kyle's calls — Stephanie Magee and Amber Smith — and the two Cincinnati police officers who responded to the scene but never left their car and didn't locate him, Officers Edsel Osborn and Brian Brazile.

"It's clear the city employees at most were negligent instead of reckless," said Emily Woerner, an attorney representing the city in Tuesday afternoons proceedings.

The appeal, held on video chat because of the pandemic, gave city attorneys and an attorney for the family an opportunity to argue their cases before three appeals judges determine whether the suit should go to trial.

"Let a jury decide whether Kyle's cries for help were met with reckless or wanton responses," said Al Gerhardstein, the attorney representing Kyle's parents.

City attorneys argued a lawsuit is not the right way to force the city to improve.

The judges have not said how long they'll deliberate their decision or when an announcement of their decision could be made.