Cincinnati council member apologizes to Plush family

Kyle Plush's parents file wrongful death lawsuit against City of Cincinnati

The parents of Kyle Plush have filed a lawsuit against former City Manager Harry Black and the City of Cincinnati, saying they “acted negligently, recklessly, wantonly, willfully, and with deliberate indifference” in failing to protect Kyle the day he died, the suit says.

The 16-year-old died on April 10, 2018 despite calling 911 twice for help. Kyle died of asphyxiation when he became trapped in his minivan in the parking lot of Seven Hills School.

Kyle was pinned inside his minivan and unable to reach his cellphone. He used Siri voice recognition software to call 911 and explain he was trapped. But key information, like Kyle's precise location and the dire nature of the call, didn't make it to the responding officers. Kyle called again, but help never found him.

The lawsuit alleges the defendants were “negligent, reckless, wanton, willful and deliberately indifferent to the safety and health of 9-1-1 callers, including Kyle Plush and caused his death.”

Attorneys Al Gerhardstein and Jennifer Branch announced the filing in a Monday morning press conference.

The suit, filed Monday in Hamilton County Court of Common Pleas, names the City of Cincinnati, Harry Black, Amber Smith, Stephanie Magee, Edsel Osborn and Brian Brazile as defendants.

Magee, the first call taker, “chose to exclude critical information when passing the call to dispatch and chose not to properly classify the call as trapped and in need of rescue which would have dispatched fire and EMS,” according to the lawsuit.

The suit also says Magee had Kyle’s precise location via wireless mapping technology, but she did not give the location to authorities.

The second call taker, Smith, treated Kyle’s call as a “‘silent call’ and improperly enabled the TTY function, knowing it reduced the volume of Kyle’s voice, and then she chose not to play back the call to hear what he said,” the lawsuit said.

“She never even advised dispatch or the officers still on the scene that she had received a second call from Kyle or that he stated he was almost dead,” the suit said.

The responding police officers, Osborn and Brazile, did not search the entire Seven Hills thrift shop parking lot, although they knew the caller was stuck inside a van there, according to the lawsuit. The officers never got out of the car, and they left the scene without using a map on their computers and cell phones with the address they were given, the suit said. 

The lawsuit said former City Manager Harry Black knew the training and supervision of call takers “were extremely deficient.” 

“Those deficiencies directly led to the failure to direct police officers to Kyle’s vehicle,” the suit said.

The lawsuit alleges a history of emergency communication failures and problems. The suit said the city's emergency response system has a history of failing to timely dispatch responders, failing to locate callers and delaying dispatch in response to calls.

When Black was hired as city manager in 2014, he described the 911 system as "a mess" and "bordered on dysfunctional," according to the lawsuit.

There were at least nine system wide failures between June 2016 and March 2017, resulting in more than seven hours in which the system was totally down, the suit said.

The lawsuit alleges Black and the city were aware of the following issues by April 2018: inadequate staffing, inadequate training on the TTY system, the CAD system freezing, system wide outages, lack of training on use of wireless location technology and lack of training and supervision of police officers in the field.

Two days after Kyle's death, Mayor John Cranley said "the problems with management, supervision and technology have been reported at the 911 center for years ... this tragedy may ultimately suggest the problems have not been resolved or that not enough changes have been made," the lawsuit said.

A year after Kyle’s death, Councilwoman Amy Murray said new technology, training and increased staffing put the 911 center “in a better place.”

"Tragedies happen and sometimes it's just multiple circumstances that occur, and what I promised to the Plush family is that we would look at all of the different issues that had happened and try and fix them so that they could not happen again,” Murray said.

A preliminary investigation revealed technical problems and human error may have played roles in first responders' failure to locate Plush. The 911 operator who took Plush's second call said she couldn’t hear him when he described the make, model and color of the minivan where he was trapped and suffocating.

About a month after Kyle’s death, City Manager Patrick Duhaney admitted operators and officers could've done more to help save him. Police Chief Eliot Isaac released an internal investigation report on that largely exonerated the operators, dispatchers and officers of wrongdoing; it only found the officers violated policy by turning off their body-worn cameras.

Mayor John Cranley called Isaac's report "incomplete" and said he wanted to bring "moral clarity" to the city's failures. Those were threefold, he said: Operators should've listened to recordings of Plush's 911 calls and turned up the volume, firefighters should've been dispatched, and officers should've gotten out of their patrol vehicle.

"The calltaker was wrong, the dispatch was wrong, the cops were wrong," Cranley said.

Hamilton County Prosecutor Joe Deters said in November 2018 that no charges would be filed in Kyle's death.

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