On Wednesday, the Ohio First District Court of Appeals ruled that the lawsuit against five Cincinnati employees will move forward, in connection with Kyle Plush.
Fox 19 reports that the parents of 16-year-old Plush can continue their wrongful death lawsuit against former City Manager Harry Black, 911 dispatchers Amber Smith and Stephanie Magee, and Cincinnati Police Officers, Edsel Osborn and Brian Brazile.
As CrimeOnline previously reported, Kyle Plush called 911 on April 10, 2018, and said he was locked inside a 2004 Honda Odyssey minivan in the parking lot of Seven Hills School in Hamilton County. In a panicked tone, he indicated he didn’t have much time to live.
“This is not a joke. I am trapped inside a gold Honda Odyssey van in the parking lot of Seven Hills. … Send officers immediately. I’m almost dead.”
Officers responded to the scene and claimed they couldn’t find anyone trapped inside a van. According to ABC, one officer reportedly began arguing with a woman nearby and questioned if the call was a prank.
The officers left but Kyle called 911 again, explaining that he was indeed in the van and he wasn’t making a fake call.
According to the Cincinnati Enquirer, sources indicated that Kyle, who played on the school’s tennis team, was grabbing tennis gear from the back of the van while putting his knee on the third-row seating area.
The third-row bench seat flipped backward, collapsed on him, and trapped him. The weight of the seat flipped Kyle upside down with his head facing the rear of the van.
Kyle couldn’t reach his phone, so he voice-activated “Siri” on his iPhone. After help failed to arrive after the first call, Kyle called 911 again and told the operator to tell his mother he loved her.
Police bodycam footage on the day of the incident showed that the two responding officers, Edsel Osborne and Brian Brazile, did not get out of their cruiser as they circled the parking lot of the Seven Hills School at 5400 Red Bank in Hamilton County.
After a few minutes of driving around the parking lot, one of the officers said, “I don’t see nobody, which I didn’t imagine I would,” before shutting off his bodycam.
Kyle subsequently passed away.
According to Hamilton County Coroner Lakshmi Sammarco, Kyle couldn’t breathe while trapped under the seat and in turn, died from “asphyxia by chest compression.” The teen’s father found him at around 9 p.m., hours after he called 911 for help.
The victim’s family filed a lawsuit against the city, in hopes that city officials and 911 operators will “be their best selves every day – and may just save a life in the future,” according to attorney Al Gerhardstein.
The city’s lawyer argued that Cincinnati doesn’t need a lawsuit to improve.
Although the appeals court ruled in the plaintiffs’ favor, the lawsuit against the city itself was thrown out.
“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 read.
“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 Plush family lawyer, Al Gerhardstein, said he was pleased with the decision.
“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).’”
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[Feature Photo: Kyle Plush/Handout]