YOUNGSTOWN ‑– In a unanimous decision, the Ohio Supreme Court ruled Youngstown failed to timely introduce a defense of immunity from liability in a wrongful death lawsuit that could cost the city millions of dollars.

Youngstown contended that its motion for “statutory immunity,” which came shortly before the wrongful death lawsuit was to proceed in Mahoning County Common Pleas Court, was permissible.

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.

In the court’s decision, Justice Daniel R. Hawkins wrote that while statutory immunity is a well-established defense in lawsuits, the Ohio Rules of Civil Procedure require that it be asserted in a timely fashion. That didn’t happen in this case, the court ruled in a 7-0 decision.

“The city had an obligation to raise the affirmative defense of political subdivision immunity in a prompt manner to minimize the impact to the estate,” the decision read.

The decision added that the court “has long held that statutory immunity, including political subdivision immunity, is an affirmative defense and is waived if not raised in a timely fashion.”

The case returns to common pleas court and will proceed without the city being able to raise a statutory immunity defense.

The Supreme Court on July 24, 2024, 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, 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.

Oral arguments in front of the Supreme Court were made May 13.

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.

Ilan Wexler of the Austintown law firm of Anzellotti, Sperling, Pazol & Small, who represents Durig, said he was “very glad the court has brought this portion of the case to an end and clarified the law in this area. This has been a long journey for the family, and it is not over yet.”

Durig also is represented by attorney Wexler of the Anzellotti firm and Paul Giorgianni of Giorgianni Law in Columbus.

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

The $5 million offer was early in the case and Durig will seek much more in the case, Wexler said.

Andy Resnick, the city’s spokesman, said: “We respect the decision of the Ohio Supreme Court and will proceed in defending the case on its merits.”

The decision could put the city in serious financial jeopardy with it unable to use statutory immunity as a defense. It also doesn’t have insurance coverage for any financial ruling against it or for a settlement because of a separate legal matter with its former insurance company.

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 judgement. 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 attorneys with the Roetzel & Andress law firm in Akron as outside legal counsel.

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, 2024.

The Supreme Court decision stated it found “no abuse of discretion by the trial court in denying the city’s motion for leave to amend its answer.”

The city contended Pokorny failed to properly give it credit for periods of inaction by the assignment of a visiting judge and interruptions related to the COVID-19 pandemic.

The Supreme Court decision states: “Even if those periods are discounted, the record still shows that a substantial part of the delay was attributable to the city. Moreover, none of the events that delayed the proceedings prevented the city from asserting a defense of political subdivision immunity or moving more promptly to amend its answer.”

During the May 13 Supreme Court 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 to 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.

City officials accepted a $150,000 settlement Sept. 23, 2024, 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 almost a year later.

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