2007 Ohio Wrongful Death Lawsuit to be Appealed
A Cleveland attorney says he will appeal a recent ruling by the Fifth District Court of Appeals that upheld a lower court decision in a civil lawsuit stemming from the 2005 shooting of a Loudonville boy.
Terry Gilbert says he wants a jury to determine whether the death of 12-year-old Drew Bush was a matter of negligence.
On Labor Day weekend 2005, Bush and Sean Slater, who was 13 at the time, were alone at the former Slater home on County Road 3006. Slater’s mother was out running errands. Authorities said Slater pulled out a 20-gauge shotgun to try to scare Bush. The older boy pulled the trigger without checking to see if it was loaded, fatally wounding Bush in the neck.
Jennifer Heimbuch Slater and her son moved to Wooster after the incident, and the boy entered a plea of admission in Ashland County Juvenile Court to one count of delinquency by reason of negligent homicide in January 2006. He was sentenced to the maximum 90 days in local detention.
Six months later, Heimbuch Slater was convicted of a fifth-degree felony charge of improperly furnishing a firearm to a minor and one misdemeanor count of contributing to the delinquency of a minor. She was sentenced to two concurrent 180-day county jail terms but allowed to complete programs, including those for substance abuse and parenting, at a community-based corrections facility in Akron.
Bush’s grandfather, Allen Bush, filed a wrongful death suit in May 2007 against Ashland County, Sheriff’s Deputy Ben Kennell, the Muskingum Watershed Conservancy District and Park Ranger Jeff Keller, claiming they should have prevented Slater from having access to the shotgun.
The allegation arose out of testimony from Heimbuch Slater’s trial that Kennell and Keller found a shotgun among other items in Sean’s room while investigating a possible break-in at the family’s home two weeks before the shooting. At the time, the officers determined Sean was the culprit — that having sneaked out of the house, he’d broken a door lock to get back in.
The shotgun, they reported, was Sean’s, though he didn’t have a license for it and hadn’t gone through the proper training to get it. Whatever ammunition the teen had, he’d taken from his mother’s bedroom, where she was keeping it until Sean got a license.
Court records indicate the officers handed over the gun to Heimbuch Slater and told her the ammunition should be kept under lock and key.
“What they did was incomprehensible,” Gilbert said. “They saw a crime being committed and did nothing, and also saw a child who was potentially endangering himself and a mother who was indifferent and did not report the crime.”
Gilbert called it “reprehensible” that the courts ruled on the lawsuit before the jury could review the evidence.
“It should have been a jury decision,” he said.
Defense attorneys Andrew Yosowitz of Columbus and Nick Tomino of Medina both applauded the Court of Appeal’s decision, saying the officers had no duty to prevent a crime that took place two weeks later. Yosowitz represented Kennell and Ashland County, while Tomino represented the Conservancy District and Keller. The county was dropped from the lawsuit before the local court ruling.
Although Allen Bush’s suit claimed Kennell and Keller had a duty to do something with Sean, Tomino said the Court of Appeals correctly decided not doing anything is not a legal standard.
“The underlying facts were no basis for the officers to take Sean in as part of their action,” he said.
Heimbuch Slater was ordered to serve a one-year suspended sentence in June 2008 after admitting to violating her probation. The now 46-year-old Wooster resident was convicted in Wayne County in April 2008 of possession of an open container and drinking in a motor vehicle.
Citing concerns with Heimbuch Slater’s chronic alcohol addiction, Common Pleas Judge Deborah Woodward handed her the suspended sentence, giving her 118 days credit for jail time served.
Heimbuch Slater could not be reached for comment.