Hamilton County Judge Robert Ruehlman has overruled a motion by the city of Cincinnati to dismiss a wrongful death lawsuit filed by the parents of Kyle Plush. But the city is looking to the Court of Appeals, filing its request just hours after Ruehlman's decision.
The judge writes:
"A motion to dismiss may only be granted when it is determined no set of facts can be presented as to allow for the Plaintiff some entitlement of relief. It is not this Court's job to determine the credibility of the facts nor the culpability of the acts. Therefore this Court finds that there are a set of facts presented that may allow for relief for the Plaintiff."
Last month attorneys for the city and Kyle Plush's parents presented arguments as to whether the lawsuit naming the city of Cincinnati, former City Manager Harry Black, dispatchers Amber Smith and Stephanie Magee, and police officers Edsel Osborn and Brian Brazile, should move forward.
In court, Assistant City Solicitor Peter Stackpole told Ron and Jill Plush he feels terrible about their son's death and assured them the city is continuing to improve the 911 system. But he does not believe the actions of the dispatchers and the police officers rise to recklessness.
Here is a timetable of events.
"The individual defendants are entitled to immunity because none of their actions rose to the level of a perverse disregard of a known risk," Stackpole said. "They did not act recklessly."
Not so, says attorney Al Gerhardstein. He represents Kyle's parents and calls what happened "a huge combination of outrageous errors."
"It's way above negligence to just send a couple of police officers to walk around a parking lot when somebody says they're trapped and that they're going to die. And that's what the expert reports say and that's what we're detailing in the complaint and that's why this is so much higher than negligence," Gerhardstein said.
His law firm hired outside investigator John Melcher of The Melcher Group. Here are some of his findings:
Melcher criticizes the first call taker for:
- Delaying any computer entry for seven minutes
- Failing to give critical information to responders (banging, screaming for help, Plush saying he was going to die)
- Failing to share the mapping detail of where Plush was with the officers
About the second call taker, Melcher says:
- She improperly used the TTY ("talk to you") function for deaf callers, which greatly reduces the volume of the caller and silences the call taker
- She didn't play back the call and consequently missed Plush saying he was in a gold Honda Odyssey in the Seven Hills parking lot and didn't hear him saying, "I probably don't have much time left, so tell my mom that I love her if I die."
Melcher also criticizes the two police officers for not using their cell phones to locate Plush and driving into every parking lot except the one the victim was in.
Cincinnati commissioned two studies into Plush's death and dispatch procedure.
Here is City Manager Patrick Duhaney's response to the lawsuit:
"The City of Cincinnati continues to express its condolences to the Plush family for the tragic loss of their son, Kyle. Every day since April 10, 2018, the City has worked to evaluate, review and enhance the ways in which we respond to emergencies. This includes adding Smart911 and RapidSOS technologies at the Emergency Communications Center, improving the ability of E911 Operators to locate callers in distress, and increasing staffing at the ECC. As a result, the ECC exceeds state and national standards for 9-1-1 call answering. We have developed and implemented these changes in a transparent and collaborative manner.
Read Judge Ruehlman's full statement below: