Youngstown failed to preserve a defense of immunity in a lawsuit filed after a man died when a city tree fell on him by making the general assertion that the estate “failed to state a claim upon which relief can be granted,” the Supreme Court of Ohio ruled today.

In a unanimous opinion, the Supreme Court affirmed a Seventh District Court of Appeals ruling addressing how the trial court procedurally handled the city’s claim of political subdivision immunity authorized by state law. The trial court ruled that Youngstown did not raise the issue of immunity in its initial stages of a 2019 lawsuit, and the trial judge declined to accept the city’s attempt to raise the defense for the first time in an amended pleading submitted two years and nine months after the complaint was filed.

Writing for the Court, Justice Daniel R. Hawkins stated that political subdivision immunity is a well-established defense when lawsuits are brought against government bodies, and the Ohio Rules of Civil Procedure require that the defense be asserted in a timely fashion.

“The city had an obligation to raise the affirmative defense of political-subdivision-immunity in a prompt manner to minimize the impact to the estate,” he wrote.

The Court’s ruling allows the lawsuit filed by Cheryl Durig in 2019 against the city to proceed.

Complications Delay Case
In June 2017, Thomas Morar was seriously injured when a tree fell on him while he was riding a motorcycle on a city street. Morar never recovered from his injuries and died in April 2019. In June 2019, Durig, the executor of Morar’s estate, filed a lawsuit in Mahoning County Common Pleas Court against the city and five employees for wrongful death, negligence, and other claims. The estate argued the city owned the tree and the surrounding grounds, and had ignored warnings about the hazardous conditions created by the tree.

The city answered the complaint in August 2019, denying all of the allegations and raising 11 defenses. Among them was a common assertion that the complaint “fails to state a cause of action upon which relief can be granted.” The city did not expressly raise political subdivision immunity as a defense.

The first trial court judge assigned to the case recused himself in December 2019. In early 2020, the COVID-19 pandemic emerged, disrupting court proceedings throughout 2020 and 2021. A visiting judge was assigned to the case in March 2021.

The visiting judge set a schedule for the case that included deadlines for the parties to exchange discovery by mid-September 2021, to complete making any dispositive motions by mid-October 2021, and to begin a trial in January 2022.

The estate sought discovery from the city. It also secured affidavits, including one from a citizen who swore he had repeatedly warned the city about the tree before Morar’s accident. To comply with the deadline, the estate filed several motions. It asked the trial court for partial summary judgment, and to find that the city’s negligence caused Morar’s death.

City Responses Delayed
Lawyers representing Youngstown did not meet the deadline to respond to the estate’s discovery requests or reply to the summary judgment motion. The city then asked the trial court for leave — or permission — to respond to the estate. The trial court allowed the city to respond by mid-December 2021.

By the deadline, the city opposed the partial summary judgment request. The city filed its own request for summary judgment, and for the first time, raised the defense that as a political subdivision, it was immune from liability under R.C. Chapter 2744.

The estate responded that the trial court had only granted the city permission to respond to its partial summary judgment request and asked the trial court to reject the city’s summary judgment request. The estate maintained the city waited too long to raise the immunity defense and waived the right to claim it.

The trial judge ruled the city waited too long to claim immunity. However, the court did not grant partial summary judgment to the estate, finding there was a genuine issue of whether the city was liable for the accident. The judge called for the case to proceed.

The city retained a new law firm and, in March 2022, requested court permission to amend its response to the complaint that was initially filed in 2019. Citing the civil rules, the city requested the opportunity to raise the immunity defense. The trial judge denied the motion.

The city appealed to the Seventh District, arguing the trial court had abused its discretion by denying the chance to raise the immunity defense. The city maintained that the estate was not harmed by the delay. The city also maintained that because the estate’s filing anticipated the city would assert immunity, the general defense that the estate failed to state a claim upon which relief could be granted was sufficient to raise the immunity defense later.

In a 2-1 decision, the Seventh District affirmed the trial court’s decision, noting the city waited until after the deadline for motions expired, and waited a total of two years and nine months to seek immunity. The court also found the general assertion of failure to state a claim was insufficient to claim immunity later.

Supreme Court Analyzed Procedural Rules
The Supreme Court’s opinion explained that a “failure to state a claim” defense is raised to attack the sufficiency of the complaint, arguing the plaintiff cannot legally succeed. The city argued that under R.C. Chapter 2744, a plaintiff is aware of the city’s immunity from civil lawsuits and must raise one of the exceptions that allow the city to be sued. Because the city is generally immune, the response of failure to state a claim signals the city is claiming it has immunity, the city asserted.

Justice Hawkins explained the Court has long held that political subdivision immunity is an affirmative defense, which is waived if not raised in a timely manner. An “affirmative defense” does not attack the sufficiency of the complaint, he wrote. An affirmative defense “admits that the plaintiff has a claim but asserts some legal reason why the plaintiff cannot have any recovery on that claim.”

If a political subdivision property invokes its immunity, it is a complete defense even if the plaintiff has established the government is at fault for the injury, the opinion noted.

But to assert the immunity defense, as the label implies, it must be “affirmatively” raised in a pleading, the Court noted. The opinion cited three civil rules that indicate when an affirmative defense can be raised. The city could have raised the issue in a “prepleading” motion before it formally responded to the estate’s 2019 lawsuit. It could have raised the issue in its initial response to the estate in 2019 in which it raised 11 defenses. Lastly, it could have promptly asked the trial court under Civ.R. 15 to amend its response.

The Court stated that whether or not it was obvious from Durig’s complaint that she was challenging the city’s immunity protection, it did not relieve Youngstown from its duty to raise the defense.

Supreme Court Considered Trial Judge’s Ruling
The city noted that, under Civ.R. 15(A), the trial court should have permitted it to amend its response to assert immunity in 2022. The city maintained there was no undue delay or harm to the estate and that much of the delay in its response was because of the pandemic closures and the time required to appoint a new judge in the case.

The Supreme Court found that after taking those delays into account, the record indicated that a “substantial part of the delay was attributable to the city.” Neither the pandemic closures nor the substitution of judges prevented the city from asserting the immunity defense or moving promptly to amend its answer. The Court noted that because the city delayed raising the issue of immunity, the estate had spent time and resources conducting discovery and seeking summary judgment on liability issues.

The Court agreed that the trial judge had a reasonable basis to deny the city’s request to add the immunity defense.

2024-0534. Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719.

View oral argument video of this case.

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