Ohio Supreme Court: Cities Can Waive Immunity by Waiting Too Long to Claim It

Published November 18, 2025 · Ohio Supreme Court

When you sue a city, county, or township in Ohio, you can count on one thing: sooner or later, the government will argue that it is immune. Ohio law gives political subdivisions broad immunity from injury lawsuits, with specific exceptions. But what happens when a city does not bother to raise that defense until the case is nearly ready for trial?

On October 16, 2025, a unanimous Supreme Court of Ohio answered that question. In Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719, the court held that a city that waits too long to claim immunity can lose the defense entirely.

A falling tree and a motorcyclist

According to the opinion, in June 2017 Thomas Morar was lawfully riding his motorcycle on a Youngstown street when a tree fell on him. He was seriously injured, never recovered, and died in April 2019. His estate sued the city for wrongful death and related claims, alleging that the city owned the tree and the ground around it and had ignored warnings about its hazardous condition. During discovery, the estate obtained an affidavit from a resident who said he had repeatedly warned the city about the tree before the crash, and an opinion from an arborist who examined it.

The city's answer to the lawsuit listed eleven defenses, including a generic statement that the complaint "fails to state a cause of action upon which relief can be granted." It never mentioned immunity under R.C. Chapter 2744, the statute that protects political subdivisions.

The city also did not respond on time to the estate's discovery requests or its motion for partial summary judgment. When it finally did respond, in December 2021, it argued for the first time that it was immune. By then the discovery and motion deadlines had passed and the case was set for trial. The trial court refused to let the city change its answer to add immunity. The Seventh District Court of Appeals agreed, and the city appealed to the Supreme Court.

What the Supreme Court decided

Justice Hawkins wrote for all seven justices. The court resolved both questions in the estate's favor.

A vague defense does not preserve immunity. Under Ohio's Civil Rules, a defendant must state "affirmatively" any "affirmative defense," meaning a defense that defeats the claim even if everything in the complaint is true. Civ.R. 8(C). The court held that political-subdivision immunity is exactly that kind of defense. A city must raise it expressly: by a motion before answering, in its answer, or by a proper amendment. A general statement that the complaint "fails to state a claim" is not enough, the court held, no matter how obvious the immunity issue might be from the complaint itself. The court explained that if immunity is apparent on the face of the complaint, that only underscores the city's failure to raise it.

A city that sits on the defense can be denied a second chance. Ohio courts are generally generous about letting parties amend their pleadings. But the court held that a trial judge may refuse an amendment when the delay is unjustified and the other side has been prejudiced. The opinion acknowledged that a judge's recusal and the COVID-19 pandemic slowed the case. But it found that much of the delay was the city's own, and nothing prevented the city from raising immunity sooner. Meanwhile, the estate had spent time and money on discovery and a summary-judgment motion based on the issues actually raised. The trial court did not abuse its discretion in refusing to let the city start over.

What the decision does and does not do

It is important to be precise. The Supreme Court did not decide whether the city was negligent or whether the estate should recover anything. Those questions go back to the trial court, where the estate still has to prove its case. What the decision does is take immunity off the table in this case, so the claims will be decided on the facts rather than on a defense the city never properly raised.

Why this matters for people hurt by a government hazard

Governments play by the same rules. Injured people and their lawyers are held to strict deadlines and pleading rules. This decision confirms that cities, counties, and townships are held to the same rules. Immunity is a powerful defense, but it is a defense the government has to claim, clearly and on time.

Immunity is not automatic, and it has exceptions. Ohio's immunity statute starts with a general grant of immunity, R.C. 2744.02(A)(1), and then lists situations where political subdivisions can be held liable. One of them covers the negligent failure to keep public roads in repair and to remove obstructions from them, R.C. 2744.02(B)(3). We discussed how the Supreme Court has read the road-repair exception in our 2024 post on the Schlegel decision. Whether an exception applies depends on the facts, which is why a government-hazard case needs careful investigation from the start.

Trees, sidewalks, and rights-of-way are real hazards. A dead or leaning tree, a collapsed storm drain, a missing sign: these are the kinds of conditions local governments are told about and sometimes ignore. Evidence that the government received warnings, like the resident's affidavit in Durig, can be critical. Public-records requests for complaints and maintenance logs should go out early.

Motorcyclists are especially vulnerable. A rider has no roof, no airbags, and no margin for a falling limb or a road defect that a car might absorb. Our motorcycle accident page explains how we handle rider cases.

Deadlines still apply to you

The rule in Durig protects injured people, but it does not relax their own deadlines. Most claims against Ohio political subdivisions must be filed within two years, under R.C. 2744.04(A). Our guide chapter on deadlines and the timeline of an Ohio injury case covers that rule and others, and our claims against the government page explains how these cases differ from claims against private parties. If a death is involved, our wrongful death page describes who may bring the claim.

What this means for you

If you or a family member was hurt by a dangerous condition on public property, such as a falling tree, a road defect, or a government vehicle, do not assume immunity ends the case. The government has to prove it, raise it properly, and fit within the statute, and you may fit within an exception. A lawyer who handles these cases will watch for every one of those steps.