Explicit Pleading Required: Generic "Failure to State a Claim" Does Not Preserve R.C. 2744 Political-Subdivision Immunity; Late Amendments May Be Denied for Unjustified, Prejudicial Delay

Explicit Pleading Required: Generic "Failure to State a Claim" Does Not Preserve R.C. 2744 Political-Subdivision Immunity; Late Amendments May Be Denied for Unjustified, Prejudicial Delay

Introduction

In Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719, the Supreme Court of Ohio squarely addressed a recurrent procedural problem in governmental tort litigation: whether a political subdivision preserves R.C. Chapter 2744 immunity simply by asserting in its answer that the complaint “fails to state a claim upon which relief can be granted,” and whether a trial court abuses its discretion when it denies a late amendment that would, for the first time, plead immunity after discovery and dispositive deadlines have passed.

The case arises from a tragic incident in which a motorcyclist, Thomas Morar, was struck by a falling tree along a Youngstown street and later died from his injuries. The estate (through executor Cheryl Durig) sued the City of Youngstown for survivorship, wrongful death, and negligent hiring/retention/training/supervision. The City’s original answer denied the allegations and included a general “failure to state a claim” defense, but it did not expressly plead political-subdivision immunity. Only after the plaintiff pursued discovery and sought partial summary judgment did the City, out of time, attempt to invoke R.C. Chapter 2744 immunity.

The Ohio Supreme Court resolved two issues:

  • Whether the City preserved political-subdivision immunity by generically asserting “failure to state a claim” in its answer.
  • Whether the trial court abused its discretion by denying leave to amend the answer to add immunity long after deadlines had passed and the matter was set for trial.

Summary of the Opinion

The Court (Hawkins, J., writing for a unanimous Court) affirmed the Seventh District’s judgment and announced two clear holdings:

  • A party does not preserve R.C. Chapter 2744 political-subdivision immunity by generally asserting in the answer that the complaint fails to state a claim upon which relief can be granted. Political-subdivision immunity is an affirmative defense that must be expressly and affirmatively pleaded under Civ.R. 8(C), or raised by pre-answer motion under Civ.R. 12(B), or added by a timely amendment under Civ.R. 15.
  • The trial court did not abuse its discretion in denying the City’s motion for leave to amend its answer to add an immunity defense after discovery and dispositive-motion deadlines had passed and trial was imminent. The City’s inaction—unjustified by COVID-19 disruptions or judicial reassignments—was prejudicial to the plaintiff and supported denial under Civ.R. 15(A).

Analysis

Precedents Cited and Their Role

The Court grounded its decision in the Ohio Rules of Civil Procedure and longstanding precedent on affirmative defenses, waiver, and amendments:

  • Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 2013-Ohio-2410: Establishes that statutory immunity, including political-subdivision immunity, is an affirmative defense and is waived if not raised in a timely manner. Also lists the approved methods of preserving an affirmative defense: by pre-answer motion under Civ.R. 12(B), affirmatively in the responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15.
  • Turner v. Central Local School Dist., 1999-Ohio-207: Emphasizes that statutory immunity is a potentially complete defense that should be pleaded “as a matter of course” in the answer; also supports denial of leave where a party unjustifiably delays in asserting an obvious immunity defense.
  • Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 (1974): Holds that a generic “failure to state a claim” assertion does not affirmatively plead the statute-of-limitations defense; clarifies that an affirmative defense may be raised in a Civ.R. 12(B)(6) motion to promote efficiency, but if not raised by motion, in the answer, or by timely amendment, it is waived under Civ.R. 12(H). The Court relied on Mills to reject the notion that a failure-to-state-a-claim assertion equals pleading a distinct affirmative defense.
  • State ex rel. Parker Bey v. Bureau of Sentence Computation, 2022-Ohio-236: Defines affirmative defenses as those that admit the complaint’s allegations but assert a legal reason to defeat liability; contrasts them with defenses that negate a prima facie case. Political-subdivision immunity fits the former category.
  • Johnson v. Abdullah, 2021-Ohio-3304: Confirms that pure questions of law are reviewed de novo and courts lack discretion to commit legal error against the plain language of statutes or rules—framing the Court’s review of the legal preservation issue.
  • Mullins v. Liberty Twp., 2022-Ohio-4350: Reiterates the burden-shifting framework of R.C. Chapter 2744—initial burden on the subdivision to establish general immunity; plaintiff then bears the burden to prove an exception—only if the defense is properly preserved.
  • Hoover v. Sumlin, 12 Ohio St.3d 1 (1984) and State ex rel. Vindicator Printing Co. v. Wolff, 2012-Ohio-3328: Articulate Civ.R. 15(A)’s liberal amendment policy, subject to the exceptions for bad faith, undue delay, or undue prejudice.
  • Darby v. A-Best Prods. Co., 2004-Ohio-3720: Places the burden on the movant to “affirmatively identify” how the trial court abused its discretion in denying leave to amend.
  • Brown v. Lincoln Hts., 2011-Ohio-3551 (1st Dist.): Warns courts against “extrapolating” an unpled defense from a different, generic defense.
  • Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357 (4th Dist. 1996): Reads Mills to require an “actual reference” to the affirmative defense; otherwise, the defense is waived—a reading the Supreme Court echoes here.
  • Jontony v. Colegrove, 2012-Ohio-5846 (8th Dist.); Musil v. Gerken Materials, Inc., 2020-Ohio-3548 (6th Dist.); and Schweizer, 108 Ohio App.3d 539: Support denying late amendments when the defense or theory was obvious and available early and allowing late pleading would prejudice the opposing party.

The Court expressly declined to follow two appellate decisions that had been read to suggest otherwise:

  • 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.): Those cases treated a failure-to-state-a-claim assertion as sufficient to preserve immunity where the defense was “conclusive” on the face of the complaint. The Supreme Court rejected that reading as inconsistent with Mills and the Civil Rules.
  • Main v. Lima, 2015-Ohio-2572 (3d Dist.): Distinguished because the city there properly raised immunity via a Civ.R. 12(B)(6) motion; the case did not address waiver from failure to plead.

Legal Reasoning

1) Preservation of R.C. 2744 Immunity Requires Express, Affirmative Pleading

The Court’s analysis starts with the text and structure of the Civil Rules. Civ.R. 8(B) requires a party to state defenses “in short and plain terms,” Civ.R. 8(C) requires that “any matter constituting an avoidance or affirmative defense” be set forth “affirmatively,” and Civ.R. 10(B) instructs that each defense be stated separately when it aids clarity. Civ.R. 12(B) permits certain defenses to be raised by motion before pleading; otherwise, “every defense” must be asserted in a responsive pleading.

Political-subdivision immunity is an affirmative defense because it “assumes establishment of a prima facie case” and posits a complete legal bar to recovery. It does not attack the sufficiency of the complaint’s allegations in the way a Civ.R. 12(B)(6) motion does; it concedes those allegations arguendo but contends the law prevents liability. Therefore, a bare assertion that the complaint “fails to state a claim upon which relief can be granted” neither identifies nor “affirmatively” pleads immunity in “plain terms.”

Mills closes the door on the City’s attempt to equate a failure-to-state-a-claim defense with pleading a different, distinct affirmative defense. While Mills allows certain affirmative defenses to be raised in a 12(B)(6) motion to expedite resolution (and avoid forcing plaintiffs to negate defenses in the complaint), it also makes clear that a generic failure-to-state assertion in an answer does not morph into pleading a specific affirmative defense. If immunity is apparent on the face of the complaint, the political subdivision still must raise it expressly—by motion, answer, or timely amendment. Otherwise, it is waived.

The Court accordingly rejects the City’s invitation to fashion a special pleading rule for R.C. 2744 immunity based on the notion that immunity is “readily discernible” from the complaint. That perceived obviousness strengthens, rather than excuses, the duty to plead immunity promptly and explicitly.

2) Denial of Leave to Amend Under Civ.R. 15(A) Was Within the Trial Court’s Discretion

Civ.R. 15(A) embodies a liberal amendment policy—leave should be “freely given when justice so requires”—but it is not unconditional. Trial courts may deny leave for bad faith, undue delay, or undue prejudice. The burden on appeal is on the movant to show how the court abused its discretion.

Here, the City had all the information it needed to plead R.C. 2744 immunity when it filed its original answer. The defense was “obvious” from the complaint because the defendant is a political subdivision. Yet the City waited two years and nine months, past both discovery and dispositive-motion deadlines and with trial looming, to seek leave to add the defense—after the plaintiff had already expended resources on discovery and a partial summary-judgment motion. The trial court’s earlier case-management orders had warned that “no further extensions” would be granted.

The Supreme Court accepted that some interim delay stemmed from a recusal and COVID-related disruptions. Even discounting those periods, the City’s later delays were unjustified and prejudicial, and neither the substitution of counsel nor the City’s unsuccessful attempt to inject immunity via an untimely summary-judgment filing excused the lapse. The trial court, therefore, had a sound basis to deny leave under Civ.R. 15(A).

Impact

Durig v. Youngstown delivers clear, practical directives for Ohio litigation involving governmental defendants:

  • No “placeholder” preservation. A generic “failure to state a claim” defense does not preserve political-subdivision immunity. Counsel must expressly plead R.C. Chapter 2744 immunity in the answer, move under Civ.R. 12(B), or promptly amend under Civ.R. 15. Failure to do so risks irrevocable waiver.
  • Litigation discipline. Trial courts retain broad discretion to deny late amendments that introduce immunity after deadlines, particularly when the opposing party has already invested in discovery and motion practice on properly joined issues. The liberal amendment policy does not shield unjustified, prejudicial delay.
  • No special pleading rule for immunity. Even if immunity seems “obvious” from the face of the complaint, it must still be expressly raised. Plaintiffs are not required to anticipate and negate affirmative defenses in their complaints.
  • Earlier motion practice. Expect earlier and more frequent Civ.R. 12(B)(6) motions specifically invoking immunity where the defense is plain on the pleadings, aligning with Mills’ efficiency rationale.
  • Case-management stakes. Courts will likely be more vigilant in enforcing dispositive-motion and amendment deadlines when immunity is withheld until late stages, to protect parties’ reliance on scheduling orders and prevent “trial by ambush.”

Practice pointers for political subdivisions and their insurers:

  • Include a separate, explicit defense in the answer, e.g., “Defendant is a political subdivision entitled to immunity under R.C. Chapter 2744.”
  • When appropriate, file a pre-answer motion under Civ.R. 12(B)(6) that squarely presents the immunity analysis at the pleadings stage.
  • If amendment is needed, move promptly—ideally before discovery closes and before dispositive-motion deadlines—and identify concrete reasons that negate undue delay and undue prejudice.
  • Do not assume a generic defense preserves anything other than itself; courts will not “interpolate” immunity from a different defense.

Complex Concepts Simplified

  • Affirmative defense. A legal shield that says, “Even if everything the plaintiff alleges is true, the law still bars recovery.” It must be expressly pleaded so the plaintiff and court know it is in play. Political-subdivision immunity is one.
  • Failure to state a claim (Civ.R. 12(B)(6)). A challenge that says, “Even assuming the facts are true, the complaint doesn’t allege a legally recognized claim.” It tests sufficiency of allegations—not affirmative defenses.
  • Waiver. Losing the right to rely on a defense by not asserting it properly or timely. For affirmative defenses, waiver occurs if not raised by motion, in the answer, or by timely amendment.
  • Civ.R. 15(A) amendments. Courts freely allow amendments “when justice so requires,” but may deny for bad faith, undue delay, or undue prejudice. Amending late, after the other side has invested resources, often meets the “prejudice” threshold.
  • “Obvious on the face of the complaint.” Even if a defense seems obvious from the plaintiff’s allegations, that does not excuse a defendant from pleading the defense expressly. Obviousness increases the expectation of early, explicit pleading.

Conclusion

Durig v. Youngstown clarifies Ohio pleading practice in a way that will resonate across governmental tort litigation. The Supreme Court reaffirmed that political-subdivision immunity is a classic affirmative defense that must be expressly and timely raised under the Civil Rules. A stock “failure to state a claim” assertion does not do the job.

Equally important, the Court signaled that Civ.R. 15(A)’s liberal policy is not a safe harbor for unjustified delay. Where a defendant sits on an “obvious” immunity defense until late in the case—after discovery and dispositive deadlines—the trial court acts within its discretion in denying leave to amend to add that defense. The decision aligns procedural rigor with fairness and efficiency: plaintiffs need not anticipate and negate affirmative defenses; defendants must plead them plainly and promptly.

The upshot is a bright-line, practice-oriented rule that should reduce ambush litigation, sharpen early motion practice, and encourage disciplined case management in Ohio courts. Political subdivisions and their counsel should update pleading templates and calendaring protocols accordingly.

Case Details

Year: 2025
Court: Supreme Court of Ohio

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