In the case of Murgu v. Lakewood City School Dist. Bd. of Edn., 2018-Ohio-4643, an Ohio appellate court denied a school board the right to assert its statutory immunity defense when the school board failed to raise the defense in its initial motion for summary judgment.
While the school board asserted its statutory immunity defense in its answer to the complaint, it failed to readdress its statutory immunity defense in its initial motion for summary judgment. The school board argued that it should be permitted to file a new motion for summary judgment to assert the defense or be permitted to amend its initial motion to do the same. The appellate court disagreed concluding that “the failure to raise the immunity defense in their summary judgment motion constitutes a waiver of that defense” and “the dispositive motion deadline for Lakewood to assert its immunity defense had passed.” Murgu at ¶ 13, 15.
This case highlights the importance of timely asserting all affirmative defenses in accordance with all court rules as failure to do so might subject defendants to unnecessary litigation.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.