Attorneys for Youngstown and the executor of an estate seeking as much as $5 million from the city in a wrongful death lawsuit argued the case in front of the Ohio Supreme Court, which will decide if two lower courts correctly ruled the municipality is not immune from liability.

The core issues argued Tuesday in front of the high court were whether Youngstown’s motion, which came shortly before the wrongful death lawsuit was to proceed, for “statutory immunity” is permissible and whether the city was responsible for the lengthy delay in filing that defense in this case.

Statutory immunity is a common defense used by governments in Ohio that gives them immunity from liability as a defense in many court cases in which it is performing a government or proprietary function.

The state’s highest 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, was correct when he ruled April 28, 2022, that the city couldn’t raise statutory immunity as a defense. Pokorny ruled the defense was untimely as it was filed two years and nine months after the city was sued in the wrongful death claim, according to his decision and the appeals court.

The Supreme Court will decide some time after the oral arguments whether statutory immunity could be used by the city as a defense when the case returns to common pleas court.

The wrongful death lawsuit was filed June 14, 2019, 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 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, 2024. The city appealed April 15, 2024, to the Supreme Court, which accepted it July 24.

During Tuesday’s hearing, Emily Anglewicz, an attorney with Roetzel & Andress, said, “Immunity is obvious from the face of plaintiff’s complaint, which alleged that the city was negligent in performing a governmental function.”

But Justice Pat DeWine said if it “was so obvious from the face of the complaint, why didn’t the defendant put (it in) the answer?”

Anglewicz said she couldn’t answer that.

“But in this case, we would submit that even though it wasn’t necessarily raised in the answer, the issue in this case really isn’t what was the better practice,” she said. “The issue is whether it was waived and a waiver is a severe consequence in sanctions and it’s not justified given that the immunity defense is obvious from the face of the complaint.”

Anglewicz also said even if the justices reject the statutory immunity argument, they should side with Youngstown on contentions that it was not responsible for a two-and-a-half-year delay before seeking leave to amend its answer to assert immunity.

Justice Pat Fischer said, “The case sat dormant on the docket of the trial court for many months.”

Anglewicz said the case was postponed because of the COVID-19 pandemic, the original judge — Anthony Donofrio — recusing himself and then Pokorny being assigned 14 months later.

Justice Jennifer Brunner said: “If we agreed with you, wouldn’t we be carving out a special policy essentially for pleading immunity when it comes to sovereign immunity?”

Paul Giorgianni, one of the plaintiff’s attorneys, told the Supreme Court that the city “is arguing” for statutory immunity and “says there is no evidence of undue delay or dilatory conduct on the part of the city. It’s an astonishing allegation to make.”

He added: “This is a very simple case of a trial court exercising sound discretion,” and the city’s argument that statutory immunity was obvious “opens up a real can of worms.”

Giorgianni said even after Pokorny rejected the city’s requested motion for summary judgment based on immunity, the city didn’t appeal it.

The city, Giorgianni, is arguing “an issue that they didn’t appeal in the first place.”

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 Sixth District on Oct. 13, 2023, and settled for the $150,000 on Sept. 23.

Any amount awarded in the wrongful death lawsuit above that amount — not including the legal fees in the USSIC case — would be the responsibility of the city.