# Durig v. Youngstown

> Ohio Supreme Court · October 16, 2025 · 2025 Ohio 4719

URL: https://www.frixlaw.com/law-library/cases/11172495

## Case

- **Court:** Ohio Supreme Court
- **Decided:** October 16, 2025
- **Citations:** 2025 Ohio 4719
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

[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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January Term, 2025

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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SUPREME COURT OF OHIO

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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January Term, 2025

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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January Term, 2025

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11172495. Public record. Not legal advice.