In the case Albright v. Eagles Nest Outfitters, Inc., 2020-Ohio-3046, 2020 Ohio App. LEXIS 1986, an Ohio appellate court found that because the board of education failed to timely assert immunity as an affirmative defense, the defense was waived. The board raised immunity as a defense for the first time in its motion for summary judgment. Because the board waived its right to assert governmental or recreational immunity, under R.C. 2744.02 and R.C. 1533.181, the trial court properly denied its motion for summary judgment, albeit on other grounds, immunity because the board waived both theories of statutory immunity by failing to timely assert either defense.
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Authors: Matthew John Markling and the McGown & Markling Team.
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