Ohio Supreme Court: A City That Waits Too Long Can Lose Its Immunity Defense (Durig v. Youngstown)

Published November 4, 2025 · Ohio Court Decisions

Families who bring a wrongful death case against a city, county, or township quickly learn about immunity: the rule that public bodies in Ohio generally cannot be sued unless one of a few exceptions applies. It is one of the hardest parts of these cases. On October 16, 2025, the Supreme Court of Ohio issued a unanimous decision that holds public bodies to the same basic rules everyone else must follow. A city that fails to raise immunity properly and on time can lose it.

What happened

The case is Durig v. Youngstown, 2025-Ohio-4719. According to the court's opinion, Thomas Morar was riding his motorcycle on a Youngstown city street in June 2017 when a tree fell on him. He was seriously injured, never recovered, and died in April 2019. The executor of his estate, Cheryl Durig, sued the city in June 2019 for wrongful death and survivorship (the claim for what he suffered before he died), alleging that the city owned the tree and had ignored warnings that it was hazardous.

The city filed an answer listing 11 defenses. One said the complaint "fails to state a cause of action upon which relief can be granted." The city did not expressly raise political subdivision immunity.

The case was then slowed by a judge's recusal and by the COVID-19 pandemic. A visiting judge set deadlines for discovery and dispositive motions and scheduled trial for January 2022. The estate gathered evidence, including testimony from a resident who said he had repeatedly warned the city about the tree and an arborist's opinion on its condition, and asked for partial summary judgment.

The city did not respond on time to the estate's discovery requests or its motion. When the city finally responded in December 2021, after the dispositive motion deadline had passed, it argued for the first time that it was immune. The trial court struck that filing, and later denied the city's request to amend its answer to add the defense. The Seventh District Court of Appeals agreed with the trial court.

What the Supreme Court decided

Writing for a unanimous court, Justice Hawkins answered two questions, both in the family's favor.

First, a general "failure to state a claim" defense does not preserve immunity. The court explained that immunity under R.C. Chapter 2744 is an affirmative defense, which means the defendant must raise it clearly or it is waived. The court held that a party "does not preserve a defense" of political subdivision immunity by a general assertion that a complaint fails to state a claim.

Second, the trial court was right to refuse a late amendment. Courts are usually generous in allowing parties to amend their pleadings. But the Supreme Court agreed that the trial court could refuse here because of the city's "unjustified and prejudicial inaction." Even setting aside the pandemic and the change of judges, a substantial part of the delay was attributable to the city, and the estate had already spent time and money on discovery and motions based on the issues that had been properly raised.

The result is that the estate's case can move forward without the city's immunity defense.

Why this matters for families

Ohio's immunity statute is broad. A political subdivision is generally not liable for death or injury caused by its acts or its employees' acts. R.C. 2744.02(A)(1). The statute then lists five exceptions, including negligent operation of a motor vehicle by an employee, negligent performance of proprietary functions, negligent failure to keep public roads in repair or remove obstructions from them, negligence combined with physical defects in certain public buildings, and liability expressly imposed by another statute. R.C. 2744.02(B)(1)-(5).

Because immunity can end a case entirely, families often spend years litigating whether an exception applies. Durig makes clear that the burden of raising immunity in the first place falls on the government defendant. If it does not do so properly and promptly, a court may hold it to that choice.

To be clear, this decision does not weaken immunity itself. Most public bodies raise immunity at the start of a case, and in those cases the exceptions still decide the outcome. But Durig is a reminder that a family's case is not over just because the defendant is a city, and that procedural rules apply to both sides.

Lessons for families with claims against public bodies

• Do not assume a claim against a city or county is impossible. The exceptions are real, and the facts matter. A fallen tree, a road defect, or a government vehicle crash may fit an exception. Our page on government and police wrongful death explains them.
• Build the record early. In Durig, the estate's evidence of prior warnings about the tree was central. Records requests, complaints made to the city, and witness statements should be gathered quickly.
• File on time. A wrongful death claim generally must be filed within two years after the death. R.C. 2125.02(F)(1). Here, the estate filed about two months after Mr. Morar died.
• Remember both claims. This estate brought both a wrongful death claim and a survival claim. Our guide explains the difference between the two.
• Expect a longer road. Cases against public bodies often involve appeals on immunity before trial. This case reached the Supreme Court more than six years after it was filed. Our guide on how cases are resolved explains what to expect.

Families facing a government defendant may also find our earlier post on the Franklin County settlement in Casey Goodson Jr.'s death helpful, and our page on motorcycle crash wrongful death discusses the special issues in motorcycle cases.