Durig v. Youngstown

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

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

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2025-OHIO-4719

DURIG, EXR. OF THE ESTATE OF MORAR, APPELLEE, v. THE CITY OF

YOUNGSTOWN, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719.]

Political-subdivision immunity—R.C. Ch. 2744—A party does not preserve a

defense of R.C. Ch. 2744 political-subdivision immunity by a general

assertion that a complaint fails to state a claim upon which relief can be

granted—Civ.R. 15(A)—Unjustified and prejudicial inaction by appellant

supports trial court’s decision to deny appellant leave to amend its answer

under Civ.R. 15(A)—Court of appeals’ judgment affirmed.

(No. 2024-0534—Submitted May 13, 2025—Decided October 16, 2025.)

APPEAL from the Court of Appeals for Mahoning County,

No. 22 MA 0044, 2023-Ohio-4446.

__________________

HAWKINS, J., authored the opinion of the court, which KENNEDY, C.J., and

FISCHER, DEWINE, BRUNNER, DETERS, and SHANAHAN, JJ., joined.

SUPREME COURT OF OHIO

HAWKINS, J.

{¶ 1} Civ.R. 8(C) requires that “[i]n pleading to a preceding pleading,” a

party must affirmatively set forth any matter constituting an affirmative defense.

This case presents two questions related to the application of that provision.

{¶ 2} First, does a party preserve a defense of R.C. Ch. 2744 political-

subdivision immunity by raising a defense of “[f]ailure to state a claim upon which

relief can be granted” in its answer? Second, did the trial court in this case abuse

its discretion in denying appellant, the City of Youngstown, leave to amend its

answer to assert a defense of political-subdivision immunity when the city sought

to do so after the discovery and dispositive-motion deadlines had expired and the

matter was set for trial?

{¶ 3} We conclude that the answer to the first question is no: a party does

not preserve a defense of R.C. Ch. 2744 political-subdivision immunity by a general

assertion that a complaint fails to state a claim upon which relief can be granted.

And we conclude that under the circumstances of this case, the trial court did not

abuse its discretion in denying the city leave to amend its answer. The Seventh

District Court of Appeals saw it the same way, so we affirm its judgment.

I. BACKGROUND

{¶ 4} Appellee, Cheryl Durig, executor of the estate of Thomas Morar (“the

estate”), filed a complaint against the city and five “John Doe” employees on June

14, 2019, asserting claims for survivorship, wrongful death, and negligent, reckless,

and/or wanton hiring, retention, training, or supervision. The estate claimed that in

June 2017, Morar was seriously injured when a tree fell on him while he was

lawfully operating a motorcycle on a city street. Morar never recovered from his

injuries and died in April 2019. The estate claimed that the city owned the tree and

surrounding ground at issue and had ignored warnings about the hazardous

condition created by the tree.

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{¶ 5} The city filed an answer on August 2, 2019, denying all allegations of

the estate’s complaint and raising 11 defenses. Among those defenses, the city

contended that the estate’s 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.

{¶ 6} The first trial-court judge assigned to the case recused himself in

December 2019. Early in 2020, the COVID-19 pandemic hit the Unites States,

disrupting court proceedings in Ohio throughout 2020 and 2021.1 The former chief

justice of this court ultimately assigned a visiting judge to the case on March 3,

2021. The visiting trial-court judge issued an entry on March 19, 2021, setting a

discovery deadline of September 15, 2021, a dispositive-motion deadline of

October 15, 2021, a brief-in-opposition deadline of November 15, 2021, and trial

for January 18, 2022.

{¶ 7} The estate pursued discovery, serving interrogatories and requests for

production of documents on the city, and secured affidavits from (1) a citizen who

averred that before Morar’s accident, he repeatedly warned the city about the tree

at issue; (2) an arborist who examined the tree and presented an expert opinion on

its condition; and (3) one of the estate’s attorneys who obtained copies of Morar’s

medical records and death certificate, among other records. In compliance with the

dispositive-motion deadline, on October 15, 2021, the estate moved for partial

summary judgment on the issues of negligence and proximate cause and attached

the affidavits and other records to its motion.

1. See Executive Order 2020-01D, Declaring a State of Emergency,

https://governor.ohio.gov/media/executive-orders/executive-order-2020-01-d (accessed Sept. 2,

2025) [https://perma.cc/NM99-4TJ2] (Governor Mike DeWine declared a public-health emergency,

effective March 9, 2020, because of the COVID-19 pandemic); Executive Order 2021-08D,

Rescinding Executive Order 2020-01D and Ending the Declared State of Emergency,

https://governor.ohio.gov/media/executive-orders/executive-order-2021-08d (accessed Sept. 2,

2025) [https://perma.cc/N6KA-BB8L] (Governor DeWine rescinded the public-health-emergency

declaration, effective June 18, 2021); In re Disqualification of Fleegle, 2020-Ohio-5636, ¶ 5, 7-8

(describing the impact of the COVID-19 pandemic on Ohio courts).

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{¶ 8} The city failed to timely respond to the estate’s discovery requests or

motion for partial summary judgment. The city moved the trial court for leave to

respond to the estate’s discovery requests and to file a brief in opposition to the

estate’s motion for partial summary judgment, and on December 2, 2021, the court

granted the city’s motion, ordering the city to submit its discovery responses and

brief in opposition by December 17 but stating in its entry that “[n]o further

extensions” would be granted. Mahoning C.P. No. 2019 CV 1225 (Dec. 2, 2021).

The court set the matter for pretrial on January 6, 2022.

{¶ 9} On December 17, 2021, the city filed a memorandum contra to the

estate’s motion for partial summary judgment combined with a motion for summary

judgment. In that filing, the city argued, for the first time, that as a political

subdivision, it is immune from civil liability under R.C. Ch. 2744 and, therefore, is

entitled to summary judgment in its favor.

{¶ 10} The estate moved to strike the portion of the city’s filing that went

beyond a memorandum contra and instead affirmatively moved for summary

judgment. The estate argued that the city’s motion for summary judgment was

untimely, was filed without leave of court since it was untimely, failed to include

supporting Civ.R. 56 summary-judgment evidence, and improperly raised political-

subdivision immunity for the first time. The estate maintained that anticipating and

countering the city’s possible defense of political-subdivision immunity was not

the estate’s responsibility and that for a court to require otherwise would disregard

the possibility that the city might waive the immunity defense. The estate also

noted that it had already pursued discovery and filed a summary-judgment motion

on liability issues.

{¶ 11} After a hearing, the trial court granted the estate’s motion to strike

the city’s motion for summary judgment based on two grounds: (1) the court had

not granted the city leave to file its own motion for summary judgment and (2) the

city had failed to timely raise political-subdivision immunity as an affirmative

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defense. Mahoning C.P. No. 2019 CV 1225 (Jan. 12, 2022). The court then

determined that genuine issues of material fact existed on liability and that the estate

was therefore not entitled to partial summary judgment. Id.

{¶ 12} After obtaining new counsel, the city on March 18, 2022, filed a

motion for leave to amend its answer under Civ.R. 15(A) (governing amended

pleadings) to assert the political-subdivision-immunity defense and a motion to

extend the case-management dates and to continue trial. The trial court overruled

both motions. Mahoning C.P. No. 2019 CV 1225 (Apr. 28, 2022).

{¶ 13} The city appealed, arguing that there was an abuse of discretion by

the trial court in denying the city leave to amend its answer under Civ.R. 15(A) and

raising issues concerning the preservation of that defense and the lack of prejudicial

delay to the estate if the city was granted leave to amend its answer.

{¶ 14} The Seventh District, in a two-to-one decision, overruled the city’s

assignment of error and affirmed the trial court’s judgment. 2023-Ohio-4446, ¶ 32-

33 (7th Dist.). The court of appeals reasoned that there was no abuse of discretion

by the trial court in denying the city leave to amend its answer when (1) the city

waited “two years and nine months” to file its motion for leave to amend its answer,

(2) the case had moved beyond the dispositive-motion timeframe and was set for

trial when the city filed its motion for leave, and (3) case law supported the trial

court’s refusal to find that the city’s asserting the defense of failure to state a claim

upon which relief can be granted in its answer was sufficient to preserve political-

subdivision immunity as an affirmative defense. Id. at ¶ 18, 24-31. The dissenting

judge concluded that the trial court erred and that there was no “undue delay” in

the city’s filing of its motion for leave because, in the judge’s opinion, the immunity

defense was sufficiently preserved in the city’s answer and the delay was caused

by the pandemic and the trial court itself. Id. at ¶ 34-38 (Waite, J., dissenting).

{¶ 15} The city appealed, and this court accepted jurisdiction over the

following two propositions of law:

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Proposition of Law No. I: The defense of political

subdivision immunity pursuant to R.C. Chapter 2744 is sufficiently

raised and preserved where the immunity defense is readily

discernible from the face of the complaint and the defendant’s

answer asserts that the complaint fails to state a claim upon which

relief can be granted.

Proposition of Law No. II: To establish “undue delay”

sufficient to overcome the presumption that pleading amendments

should be liberally granted, the delay must be attributable to the

party seeking the amendment.

See 2024-Ohio-2781.

II. ANALYSIS

{¶ 16} The city’s appeal arises from the trial court’s decision on a motion

for leave to amend a pleading, which is generally reviewed for an abuse of

discretion. See State ex rel. Askew v. Goldhart, 1996-Ohio-448, ¶ 11 (“The grant

or denial of leave to amend a pleading is discretionary and will not be reversed

absent an abuse of discretion.”). However, the city’s propositions of law involve

both questions of the trial court’s discretion and of law. Questions of law necessary

to resolve an appeal are always reviewed de novo. Johnson v. Abdullah, 2021-

Ohio-3304, ¶ 38; see also id. at ¶ 39 (“courts lack the discretion to make errors of

law, particularly when the trial court’s decision goes against the plain language of

a statute or rule”). We resolve each question in the estate’s favor.

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A. Asserting the defense of failure to state a claim upon which relief can be

granted in an answer does not preserve the defense of political-subdivision

immunity

{¶ 17} The city first contends that it sufficiently preserved political-

subdivision immunity as a defense because that defense is apparent from the

estate’s complaint and the city asserted in its answer that the complaint fails to state

a claim upon which relief can be granted. The city argues that political-subdivision

immunity is “unique and particularly suited to be asserted as a failure-to-state-a-

claim” defense because the plaintiff bears the burden to establish that one of the

statutory exceptions to immunity under R.C. Ch. 2744 applies. The city claims that

in these circumstances, political-subdivision immunity acts as an attack on the

sufficiency of the complaint and is therefore “akin to a failure-to-state-a-claim

defense.” But as explained below, political-subdivision immunity under R.C. Ch.

2744 is well established as an affirmative defense and must be specifically asserted

in a timely fashion to avoid waiver.

{¶ 18} Laws controlling political-subdivision tort liability, including

immunity and exceptions to immunity, reside in R.C. Ch. 2744. Under the statutory

scheme, a political subdivision initially carries the burden to establish general

immunity under R.C. Ch. 2744, which then triggers the plaintiff’s burden to prove

that one of the exceptions to immunity applies. See Mullins v. Liberty Twp., 2022-

Ohio-4350, ¶ 45.

{¶ 19} Both burdens, however, are invoked only if the political subdivision

preserved its immunity defense in the first place. This court has long held that

“[s]tatutory immunity, including political-subdivision immunity, is an affirmative

defense, and it is waived if not raised in a timely fashion.” Supportive Solutions,

L.L.C. v. Elec. Classroom of Tomorrow, 2013-Ohio-2410, ¶ 17, citing Turner v.

Cent. Local School Dist., 1999-Ohio-207, ¶ 16; see also State ex rel. Parker Bey v.

Bur. of Sentence Computation, 2022-Ohio-236, ¶ 17 (failure to properly preserve

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an affirmative defense that Civ.R. 8(C) requires to be set forth in an answer or other

responsive pleading will result in waiver of that defense).

{¶ 20} Because R.C. Ch. 2744 immunity holds the possibility of a complete

defense, a political subdivision must raise R.C. Ch. 2744 immunity in its first

responsive pleading under Civ.R. 8(C). See Turner at ¶ 16. In Turner, we

explained that “as a matter of course, a properly pleaded answer should . . .

include[] the statutory-immunity defense . . . because, in most cases, the [Political

Subdivision Tort Liability] Act could provide a complete defense.” Id.

{¶ 21} In addition to raising the defense of political-subdivision immunity

in an answer, a political subdivision may raise the defense by motion under

Civ.R.12(B) or through a properly filed amended pleading under Civ.R. 15. See

Supportive Solutions at ¶ 19, quoting State ex rel. Plain Dealer Publishing Co. v.

Cleveland, 75 Ohio St.3d 31, 33 (1996) (“An affirmative defense is not deemed

waived when the defendant raises the defense ‘by motion before pleading pursuant

to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by

amendment under Civ.R. 15.’” [Emphasis deleted.]).

{¶ 22} In this case, the city contends that it raised political-subdivision

immunity “affirmatively in a responsive pleading under Civ.R. 8(C),” Plain Dealer

Publishing at 33—by asserting in its answer that the estate’s complaint “fails to

state a cause of action upon which relief can be granted.” The city’s position

conflicts both with the Ohio Rules of Civil Procedure and the meaning of an

“affirmative defense.”

{¶ 23} Under the Civil Rules, a defendant is generally obligated to assert

“[e]very defense” in a responsive pleading in “plain terms”; moreover, specific to

this case, a defendant must set forth an “affirmative defense,” as the label implies,

“affirmatively.” Civ.R. 8(B) (“A party shall state in short and plain terms the

party’s defenses to each claim asserted . . . .”); Civ.R. 8(C) (when “any . . . matter

constituting an avoidance or affirmative defense” is involved, a party must “set

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forth” that defense “affirmatively” in the responsive pleading); Civ.R. 10(B) (“each

defense” must be stated separately “whenever a separation facilitates the clear

presentation of the matters set forth”); Civ.R. 12(B) (the party opposing a complaint

is tasked with asserting “[e]very defense” in a responsive pleading except for

certain defenses that may, at the option of the pleader, be made by motion). By

asserting that the estate’s complaint “fails to state a cause of action upon which

relief can be granted,” the city neither states the political-subdivision-immunity

defense in “plain terms” nor “affirmatively” describes that defense.

{¶ 24} This court arrived at a similar conclusion in Mills v. Whitehouse

Trucking Co., 40 Ohio St.2d 55, 58 (1974), when it held that asserting that a

complaint “fails to state a claim upon which relief can be granted” “clearly fails to

allege affirmatively the bar of the statute of limitations to the present action nor

does it formulate in a simple, concise, and direct manner the issue to be resolved

by the trial court.” As summarized by the First District Court of Appeals, “it is

acceptable to make fair interpolations of more specific defenses that might naturally

be included in an asserted defense” but “it is not acceptable to extrapolate from an

asserted affirmative defense something that is simply not stated in the pleadings.”

Brown v. Lincoln Hts., 2011-Ohio-3551, ¶ 11 (1st Dist.).

{¶ 25} The city’s position also contradicts the definition of an “affirmative

defense.” An affirmative defense is “[a] defendant’s assertion of facts and

arguments that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations

in the complaint are true.” Black’s Law Dictionary (12th Ed. 2024). This court has

similarly explained that “[a]n affirmative defense is one that ‘assumes

establishment of a prima facie case.’” Parker Bey, 2022-Ohio-236, at ¶ 18, quoting

Gallagher v. Cleveland Browns Football Co., 1996-Ohio-320, ¶ 17, fn. 3. In other

words, 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.” (Cleaned

up.) Smith v. Ohio State Univ., 2024-Ohio-764, ¶ 19. “By contrast, a defense that

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prevents a plaintiff . . . from even establishing a prima facie case is not an

affirmative defense.” Parker Bey at ¶ 18. Political-subdivision immunity fits the

former category as an affirmative defense: if viable, political-subdivision immunity

is a complete defense that renders the plaintiff’s ability to establish a prima facie

case irrelevant. See Turner, 1999-Ohio-207, at ¶ 16.

{¶ 26} To sidestep the Civil Rules and the definition of an affirmative

defense, the city maintains in its merit brief that political-subdivision immunity

“can function as a failure-to-state-a-claim defense.” (Emphasis in original.) In

support of its position, the city asks this court to follow Goad v. Cuyahoga Cty. Bd.

of Commrs., 79 Ohio App.3d 521 (8th Dist. 1992), and Enghauser Mfg. Co. v.

Lebanon, 1982 WL 6081 (12th Dist. Mar. 31, 1982), rev'd on other grounds by

Enghauser Mfg. Co. v. Eriksson Eng., Ltd., 6 Ohio St.3d 31 (1983), and relies

heavily on Main v. Lima, 2015-Ohio-2572, ¶ 14 (3d Dist.).

{¶ 27} These cases do not persuade us to treat political-subdivision

immunity differently from other affirmative defenses. The Eighth District Court of

Appeals in Goad and the Twelfth District Court of Appeals in Enghauser held that

by raising the defense of failure to state a claim upon which relief can be granted,

the defendants sufficiently preserved the affirmative defense of political-

subdivision immunity “[i]nasmuch as the complaint itself bore conclusive evidence

that the action was barred by sovereign immunity,” Goad at 524 (the defendants

raised failure to state a claim in their answer); Enghauser at *4 (the defendant raised

failure to state a claim in its Civ.R. 12(B)(6) motion to dismiss). To arrive at this

determination, both cases relied on Mills, 40 Ohio St.2d 55. This court’s reasoning

in Mills, however, does not support the conclusions reached by the appellate courts

in Goad and Enghauser.

{¶ 28} In Mills, the defendant raised the defense of failure to state a claim

upon which relief can be granted in its answer to the complaint and later moved

under Civ.R. 12(B)(6) to dismiss the case based on a statute-of-limitations defense.

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