Attorneys for Youngstown and the executor of a dead man’s estate seeking as much as $5 million in damages filed their arguments with the Ohio Supreme Court, which will determine if two lower courts erred when they ruled the city was not immune from a wrongful death lawsuit.

The Supreme Court on July 24 accepted the city’s appeal of a 2-1 decision on Dec. 7, 2023, by the 7th District Court of Appeals that concluded Thomas J. Pokorny, a visiting judge in Mahoning County Common Pleas Court, made the right decision April 28, 2022, when he didn’t permit Youngstown to raise the defense that it has “statutory immunity” to the litigation because it’s a political subdivision. Pokorny rejected the city’s motion to amend its answer with that defense, ruling it was untimely as it was filed two years and nine months too late, according to his decision and the appeals court.

Local governments in Ohio are entitled to raise immunity from liability as a defense in many court cases in which it is performing a government or proprietary function.

The Supreme Court will decide whether the statutory immunity argument can be used as a defense by the city when the case goes back to common pleas court.

The wrongful death lawsuit was filed by Cheryl Durig of Newton Falls, the executor of Thomas Morar’s estate. Morar, of Youngstown, was injured June 17, 2017, while riding a motorcycle on Oak Street Extension on the city’s East Side when a tree fell on him. Morar died April 2, 2019, at the age of 80.

Durig sued Youngstown on June 14, 2019, in common pleas court for economic damages, pain and suffering, and wrongful death arising out of the accident. Morar was on a ventilator from the time of the accident until his death.

The Durig lawsuit states the city was aware the tree that fell on Morar was in poor condition and despite being on city property, Youngstown officials did nothing to address it.

The city was served June 25, 2019, and filed its answer Aug. 2, 2019, without raising any defenses regarding immunity from liability under state law.

The city filed a motion Dec. 17, 2021, in opposition to Durig’s motion for summary judgment and for the first time raised the immunity defense.

Pokorny held a Jan. 12, 2022, hearing on motions and granted the city time to file a response to Durig’s motion for partial summary judgment. But he didn’t permit the city to file its own summary judgment motion and said the city should have raised the immunity defense well before then.

The city waited until March 18, 2022, to file a motion to amend its answer, which Pokorny rejected April 28, 2022, as being untimely. On that date, James Vivo, the city’s first assistant law director who was handling the case, was replaced by Roetzel & Andress attorneys as outside legal counsel.

The two sides had an unsuccessful Feb. 14, 2022, mediation. Before that, Durig sought a $5 million settlement, which the city refused.

Pokorny’s decision was appealed May 6, 2022, by the city and subsequently rejected by the 7th District. The appeals court also rejected the city’s reconsideration of its decision on Feb. 29. The city appealed April 15 to the Supreme Court, which accepted it July 24.

Both sides submitted written arguments to the Supreme Court. Oral arguments on jurisdictional appeals, such as this case, are automatic unless waived by the parties. The court will schedule a date for those arguments.

In an Oct. 15 filing, Emily Anglewicz, an attorney with Akron’s Roetzel & Andress law firm representing the city in this case, wrote: “The court’s intervention is needed to restore inconsistent rulings among Ohio’s appellate districts as to whether an immunity defense is sufficiently preserved where, as here, a political subdivision raises a failure-to-state-a-claim defense in its answer and the immunity defense is readily discernible from the face of the plaintiff’s complaint.”

Anglewicz stated two appellate cases and the dissent in the Durig appeals court case “concluded that an immunity defense is preserved.”

But in a Wednesday response, Durig’s attorneys pointed to a ruling by the 4th District Court of Appeals that the two cases cited by Youngstown are “obviously incorrect.”

Durig is represented by attorneys Ilan Wexler and David M. Moore – both of Anzellotti, Sperling, Pazol & Small in Austintown – and Paul Giorgianni of Giorgianni Law in Columbus.

They wrote: “Ironically, Youngstown here is using a misrepresentation of (another case) to advance a proposition of law that would invite delay in raising an affirmative defense.”

Durig’s attorneys wrote the Supreme Court should reject the city’s arguments because they are “illogical,” “arbitrary,” and other cases show the city to be wrong, adding “Youngstown’s argument is the flimsiest of straw men.”

“This court should affirm because the trial judge didn’t commit an abuse of discretion by denying Youngstown’s motion to amend its answer,” they wrote.

They wrote: “It is perfectly reasonable for a plaintiff to interpret a defendant’s failure to assert political subdivision immunity as a waiver of immunity and for the plaintiff to rely on that waiver,” and the city “didn’t even attempt to justify its delay.”

Anglewicz wrote the Supreme Court should reject the appeals court’s decision.

Anglewicz wrote: “It is especially critical for the court to resolve this issue as it will have a profound impact on not only municipalities and other governmental entities statewide, but also Ohio citizens and taxpayers” as the appeals court’s decision “has the potential to subject Ohio’s numerous political subdivisions to unnecessary litigation and judgments in contravention of the intent of the General Assembly.”

City officials accepted a $150,000 settlement in September from U.S. Specialty Insurance Co. (USSIC), its former insurance company, which sued Youngstown contending it wasn’t responsible for any financial claims in the Durig case because it wasn’t notified of its existence for almost five years.

U.S. District Court Judge John R. Adams ruled Sept. 14, 2023, that USSIC was not responsible for coverage because of the city’s “significant missteps and mistakes that cannot be undone,” as well as the city’s “extreme incompetence.”

The city appealed the decision to the U.S. Court of Appeals for the 6th District on Oct. 13, 2023, and settled for the $150,000 on Sept. 23.

Any amount awarded in the wrongful death lawsuit above that $150,000 – not including the legal fees in the USSIC case – would be the responsibility of the city.