[Cite as Albright v. Eagles Nest Outfitters, Inc., 2020-Ohio-3046.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT



Peter Albright et al.,                                   :

                 Plaintiffs-Appellees,                   :

v.                                                       :

Eagles Nest Outfitters, Inc.,                            :
                                                                           No. 19AP-746
                 Defendant-Appellee,                     :             (C.P.C. No. 18CV-02-1251)

and                                                      :            (REGULAR CALENDAR)

Board of Education of the                                :
Dublin City School District,
                                                         :
                 Defendant-Appellant.
                                                         :



                                           D E C I S I O N

                                        Rendered on May 21, 2020


                 On brief: Allen Stovall Neuman Fisher & Ashton LLP,
                 Todd H. Neuman, and Jeffrey R. Corcoran, for appellees Tim
                 Albright, Cara Albright, and Peter Albright.

                 On brief: Raymond H. Decker, Jr., for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
        {¶ 1} Defendant-appellant, Board of Education of the Dublin City School District,
appeals from the decision and entry of the Franklin County Court of Common Pleas denying
its motion for summary judgment. For the reasons that follow, we affirm.
No. 19AP-746                                                                                            2


I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In summer 2017, plaintiff-appellee Peter Albright was a rising sophomore at
Dublin Jerome High School in Dublin, Ohio. The morning of June 19, 2017, appellee
exchanged text messages with friends to see if anyone wanted to go enoing that afternoon.
"Enoing" or "hammocking" is an activity where the participants set up hammocks and
socialize. The group ultimately decided to go enoing in the wooded area behind Dublin
Jerome High School ("wooded area").
        {¶ 3} The wooded area is part of the Dublin Jerome High School property and is
largely left undeveloped. In 2015, a bridge was constructed to facilitate access to the
wooded area. In 2017, a walking path was expanded in the woods for use as a cross-country
trail. Science teachers have regularly taken students in the wooded area as a part of
classroom activities. Through the course of discovery, it was determined that at least some
of the school board members and officials were aware of students enoing in the wooded
area.
        {¶ 4} On June 19, 2017, appellee set up his hammock in what he considered a dense
area of the woods. At some point, more friends arrived, and one individual hooked his
hammock onto the same tree as appellee. The individual was in the hammock for only a
few moments when the tree collapsed. Appellee was struck by the tree causing severe injury
to appellee's back. Appellee was later transported to the hospital by ambulance and
diagnosed with six broken bones in his vertebra.
        {¶ 5} On February 8, 2018, appellees filed a complaint against appellant and Eagles
Nest Outfitters, the manufacturer of the hammock. Appellant filed an answer with the trial
court on December 5, 2018.1 In its answer, appellant failed to include governmental or
recreational immunity as an affirmative defense. On July 9, 2019, appellant filed a motion
for summary judgment asserting governmental immunity under R.C. 2744.02 and
recreational immunity under R.C. 1533.181.                On August 6, 2019, appellees filed a
memorandum contra arguing that appellant failed to assert governmental or recreational
immunity in its answer and therefore waived the affirmative defense. Appellee noted the
word "immunity" is not even used in the answer. (Aug. 6, 2019 Appellee's Memo. Contra


1Appellant argues that its answer was filed in March 2018 as evidenced by the certificate of service dated
March 8, 2018. Appellant contends that the answer was not docketed correctly due to a clerical error.
No. 19AP-746                                                                                 3


at 8.) Appellees argued in the alternative that if appellant was able to assert the defense, it
was not entitled to immunity under either statute. A reply brief was filed on August 13,
2019. On September 4, 2019, Eagles Nest was dismissed with prejudice from this action.
       {¶ 6} On October 2, 2019, the trial court issued its decision and entry denying
appellant's motion for summary judgment. The trial court did not address whether
appellant waived its right to assert immunity as a defense but concluded appellant was not
entitled to governmental immunity. The trial court reasoned "the construction and layout
of school grounds, choosing to leave a wooded area on the property and choosing to use it
for education and sports activities, was a discretionary choice. The choice not to remove
potentially hazardous trees from the woods was a maintenance decision and does not rise
to the level required for immunity." (Oct. 2, 2019 Decision & Entry at 7.)
       {¶ 7} Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Appellant assigns the following as trial court error:
                [1.] The Trial Court Erred When it Denied Appellant's
               Motion for Summary Judgment relative to Governmental
               Immunity.
               [2.] The Trial Court Erred When it Failed to Address
               Appellant's Claim for Recreational Immunity in any regard.
III. STANDARD OF REVIEW
       {¶ 9} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the same
standard as the trial court and conducts an independent review, without deference to the
trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One
Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
       {¶ 10} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the
following circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion,
that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing
No. 19AP-746                                                                               4


Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary judgment on grounds that the
non-moving party cannot prove its case, the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,
2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Dresher at 293.
IV. LEGAL ANALYSIS
       {¶ 11} For clarity of discussion, we will address appellant's first and second
assignments of error together. Appellant argues the trial court erred in denying it
governmental immunity under R.C. 2744.02 and failed to consider whether appellant was
entitled to recreational immunity under R.C. 1533.181. Ordinarily, this court would review
properly preserved assignments of error considering whether appellant was entitled to
immunity under a de novo standard of review. Before undertaking a statutory immunity
analysis, however, we must examine the record to determine whether appellant preserved
immunity as an affirmative defense. For the foregoing reasons, we find that appellant
waived its right to assert either governmental or recreational immunity.
       {¶ 12} "Under Ohio law, '[t]here are three ways to properly raise an affirmative
defense: (1) setting forth the defense in a prepleading motion pursuant to Civ.R. 12(B);
(2) affirmatively setting forth the defense in a responsive pleading pursuant to Civ.R. 8(C);
or (3) amending one's responsive pleading pursuant to Civ.R. 15 to include such a defense.' "
Brust v. Franklin Cty. Sheriff's Office, 10th Dist. No. 16AP-881, 2017-Ohio-9128, ¶ 19,
quoting Energy Wise Home Improvements, Inc. v. Rice, 7th Dist. No. 04-MA-178, 2005-
Ohio-2705, ¶ 21.
       {¶ 13} This court has previously found that governmental immunity under R.C.
2744 provides a political subdivision with an affirmative defense. Ohio Bur. of Workers'
Comp. v. Shaffer, 10th Dist. No. 13AP-67, 2013-Ohio-4570, ¶ 12. Similarly, a political
subdivision may assert recreational user immunity under R.C. 1533.181 as an affirmative
defense. Brown v. Village of Lincoln Hts., 95 Ohio App.3d 149, 2011-Ohio-3551, ¶ 10 (1st
Dist.). The Supreme Court of Ohio has held that if a political subdivision fails to timely
No. 19AP-746                                                                                 5


raise an affirmative defense, such as statutory immunity, the defense is waived. Supportive
Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-
2410, ¶ 19, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 97-98 (1999).
       {¶ 14} Ohio courts have regularly found that failure to timely raise immunity as an
affirmative defense constitutes waiver of the defense. See, e.g., Brown at ¶ 10 ("failure to
timely raise an affirmative defense, other than those listed in Civ.R. 12(B), either in the
answer or by amendment under Civ.R. 15 results in a waiver of the defense"); Eulrich v.
Weaver Bros., 3d Dist. No. 8-04-35, 2005-Ohio-5891, ¶ 13 (finding that the defendant
waived the affirmative defense of immunity by failing to plead the defense in its answer or
amended pleadings); Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357, 360 (4th
Dist.1996) (finding immunity under the statute was an affirmative defense that must be
pleaded or risk waiver of the defense); Reed v. Multi-Cty. Juvenile Sys., 7th Dist. No. 09
CO 27, 2010-Ohio-6602, ¶ 94 (concluding that employees were not entitled to summary
judgment having waived the defense of immunity by failing to raise it in their answer or
amended answer); Jontony v. Colegrove, 8th Dist. No. 98295, 2012-Ohio-5846, ¶ 16, 29
(affirming the decision of the trial court to deny the city leave to amend its answer to assert
immunity under R.C. 2744 reasoning a political subdivision should timely raise its
immunity defense to allow other litigants to devote its resources in litigating a case that is
potentially precluded by immunity); Carswell v. Akron, 9th Dist. No. 29321, 2019-Ohio-
4444, ¶ 13 (finding statutory immunity, including political subdivision immunity, is an
affirmative defense and must be asserted in a responsive pleading); Mossa v. W. Credit
Union, Inc., 84 Ohio App.3d 177, 181 (10th Dist.1992) (stating a political subdivision waives
its statutory immunity defense if it fails to timely raise the defense).
       {¶ 15} The General Assembly intended the issue of immunity be resolved in the early
stages of the case in order to preserve resources for litigants:
               "[D]etermination of whether a political subdivision is
               immune from liability is usually pivotal to the ultimate
               outcome of a lawsuit. Early resolution of the issue of whether
               a political subdivision is immune from liability pursuant to
               R.C. Chapter 2744 is beneficial to both of the parties. If the
               appellate court holds that the political subdivision is immune,
               the litigation can come to an early end, with the same outcome
               that otherwise would have been reached only after trial,
               resulting in a savings to all parties of costs and attorney fees.
No. 19AP-746                                                                                  6


               Alternatively, if the appellate court holds that immunity does
               not apply, that early finding will encourage the political
               subdivision to settle promptly with the victim rather than
               pursue a lengthy trial and appeals. Under either scenario,
               both the plaintiff and the political subdivision may save the
               time, effort, and expense of a trial and appeal, which could
               take years.
               "* * * As the General Assembly envisioned, the determination
               of immunity could be made prior to investing the time, effort,
               and expense of the courts, attorneys, parties, and witnesses
               pursuant to amendments made to R.C. 2744.02(C) and
               2501.02."
(Emphasis sic.) Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 25-26, quoting
Burger v. Cleveland Hts., 87 Ohio St.3d 188, 199-200 (1999) (Lundberg Stratton, J.,
dissenting).
       {¶ 16} In the instant case, appellant has failed to assert either governmental or
recreational immunity as an affirmative defense in a prepleading motion to dismiss under
Civ.R. 12(B), a responsive pleading filed under Civ.R. 8(C), or by amendment under Civ.R.
15. Appellant raised immunity as a defense for the first time in its motion for summary
judgment. It is well established that an affirmative defense raised for the first time on
summary judgment is improper. Brust at ¶ 21; Midstate Educators Credit Union, Inc. v.
Werner, 10th Dist. No. 07AP-301, 2008-Ohio-641, ¶ 11 ("Ohio law prohibits a defendant
from asserting an affirmative defense for the first time in a motion for summary
judgment."). Because appellant has failed to timely assert immunity as an affirmative
defense, the defense is waived. Supportive Solutions at ¶ 19.
       {¶ 17} Appellant argues it has not waived political subdivision immunity because
"defendants may wait to assert political subdivision status until [a] post-trial hearing."
(Appellant's Reply Brief at 2.) Appellant cites Jones v. MetroHealth Med. Ctr., 8th Dist.
No. 102916, 2017-Ohio-7329, to support its position that immunity can be resolved during
a post-trial proceeding.
       {¶ 18} Appellant's reliance on Jones is misguided. In Jones, the Eighth District
Court of Appeals considered in part whether the trial court erred in holding a post-trial
hearing to determine the statutory offset, and the collateral source rule applies to a political
subdivision. The Jones court upheld the constitutionality of statutory cap on noneconomic
damages against political subdivisions and that the trial court did not err in conducting a
No. 19AP-746                                                                                  7


post-trial hearing to determine the political subdivision's right to statutory offset under R.C.
2744.05.
       {¶ 19} Jones is distinct from the present case as it does not concern whether a
political subdivision is immune from liability but the application of a political subdivision's
right to a statutory offset. "When a political subdivision is found liable to pay damages
caused by any injury resulting from an act or omission in connection with a governmental
or proprietary function, R.C. 2744.05(B)(1) permits the court to offset from those damages
future collateral benefits received by the claimant." Id. at ¶ 24. Concluding that Jones
stands for the proposition that a political subdivision may assert governmental or
recreational immunity for the first time during a post-trial proceeding to avoid liability
would contradict well-established precedent across Ohio. Considering all the above, we
find appellant's argument unpersuasive.
       {¶ 20} Because appellant waived its right to assert governmental or recreational
immunity, we agree with the trial court's denial of appellant's motion for summary
judgment, albeit on other grounds. Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990)
("a reviewing court is not authorized to reverse a correct judgment merely because
erroneous reasons were assigned as the basis thereof"); O'Neal v. State, 10th Dist. No.
19AP-260, 2020-Ohio-506, ¶ 20 (an appellate court must affirm the trial court's judgment
if correct on other grounds). As such, we decline to resolve whether the trial court was
ultimately correct in concluding appellant was not entitled to statutory immunity. We find
the trial court did not err when it denied appellant's motion for summary judgment
regarding governmental or recreational immunity because appellant waived both theories
of statutory immunity by failing to timely assert either defense.
       {¶ 21} Accordingly, appellant's first and second assignments of error are overruled.
V. CONCLUSION
       {¶ 22} Having overruled appellant's first and second assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas on other grounds.
                                                                         Judgment affirmed.
                             BROWN and KLATT, JJ., concur.
                                     _____________
