[Cite as Brown v. Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

BROWN, 

Appellant and Cross-Appellee, 

 v. 

VILLAGE OF LINCOLN HEIGHTS, 

Appellee and Cross-Appellant. 

:

: 

: 

: 

: 

APPEAL NOS. C-100699 

 C-100721 

TRIAL NO. A-0902852 

D E C I S I O N.

Civil Appeals From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Reversed and Cause Remanded in C-100699; Affirmed 

in C-100721 

Date of Judgment Entry on Appeal: July 20, 2011 

Gerald L. Nuckols, for appellant and cross-appellee. 

Surdyk, Dowd & Turner Co., L.P.A., Jeffrey C. Turner, Dawn M. Frick, and Joshua R. 

Schierloh, for appellee and cross-appellant. 

FISCHER, Judge. 

{¶ 1} Plaintiff-appellant and cross-appellee, Addie Brown, filed suit against 

defendant-appellee and cross-appellant, the village of Lincoln Heights, asserting a 
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claim of negligence after Brown was injured at a community festival in the village. 

Brown alleged that the village had been negligent in permitting a hazard on the festival 

grounds and in failing to warn of the hazard. The village filed a motion for summary 

judgment, arguing that it was entitled to both governmental immunity under R.C. 

2744.01 et seq. and recreational-user immunity under R.C. 1533.181. The trial court 

denied the village’s motion on the grounds of governmental immunity after concluding 

that there existed genuine issues of material fact on whether the village was entitled to 

that immunity. But the court granted the village’s motion for summary judgment 

based on its assertion of recreational-user immunity after determining that it was 

entitled to the protections found in R.C. 1533.181. 

{¶ 2} Brown now appeals from the trial court’s entry granting the village’s 

motion for summary judgment on the basis of recreational-user immunity under R.C. 

1533.181. In her appeal, she presents one assignment of error. She argues that the 

affirmative defense of recreational-user immunity, upon which the judgment was 

based, was not timely raised in accordance with Civ.R. 8(C). We agree and reverse the 

court’s decision to grant summary judgment on this ground. 

{¶ 3} In a cross-appeal, the village contests the trial court’s denial of summary 

judgment on the assertion of governmental immunity under R.C. Chapter 2744. 

Generally, the denial of a motion for summary judgment is not a final, appealable 

order. But it is reviewable when there is, as here, an otherwise final, appealable order 

entered in the case. Further, R.C. 2744.02(C) states that an order denying a political 

subdivision the benefit of immunity from liability is a final order,1 and consequently 

this court has jurisdiction over the cross-appeal. 

 

1 See R.C. 2744.02(C). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶ 4} The village presents two assignments of error in its cross-appeal. It 

argues that the trial court erred in denying summary judgment under R.C. Chapter 

2744 and that the trial court erred in failing to determine whether the village had 

breached a duty of care to Brown so as to invoke the exception to immunity under R.C. 

2744.02(B)(2). We overrule both assignments of error and affirm the trial court’s 

denial of summary judgment under R.C. Chapter 2744 because there are issues of 

material fact that must first be presented to a jury for determination. 

Factual Background 

{¶ 5} On August 31, 2008, Brown attended the Lincoln Heights Day Festival 

and was injured when she tripped and fell while crossing an empty lot that had been 

used for parking and providing services for festival workers. Although she had rented 

a booth at the festival, Brown had not been working at her booth prior to or at the time 

of her injury. Rather, she had purchased bread from another booth and was en route 

to deliver it to her daughter’s booth when she tripped over a grounding rod and 

attached wire and fell, injuring her wrist. Both the grounding rod and attached wire 

had been placed in the ground for purposes of providing electricity to the festival 

booths. Although the grounding rod had been permanently implanted in the ground, 

the wire was capable of being removed following each year’s festival. 

{¶ 6} Brown asserted that the lot in which her injury occurred was part of the 

festival area held open to the public and that the village had provided no warning or 

indication that a hidden danger existed on the lot. Brown additionally presented an 

affidavit from Christina Brooks, a patron of the festival, that corroborated Brown’s 

statement that the area in which her injury occurred had not been cordoned off. But 
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Ernest McCowen Jr., a former police chief of the village and a member of the festival 

committee, stated in his deposition that the area at issue had been cordoned off with 

orange cones and police tape. McCowen had been responsible for setting up the 

booths and attaching the wire to the grounding rod. 

Standard of Review 

{¶ 7} In accordance with Civ.R. 56(C), the entry of summary judgment is proper 

if the evidence shows that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. The moving party carries the 

burden to show that no genuine issue of fact exists, and all reasonable inferences 

should be construed most strongly in favor of the nonmoving party.2 An appellate 

court reviews a trial court’s ruling on a motion for summary judgment de novo.3 

Recreational-User Immunity 

{¶ 8} In her sole assignment of error, Brown argues that the trial court erred in 

granting the village’s motion for summary judgment. She asserts that the village 

waived the affirmative defense of recreational-user immunity under R.C. 1533.181 by 

failing to raise the defense in its answer. We agree. 

{¶ 9} In its answer, the village included the statement that “[p]laintiff’s claims 

are precluded by virtue of the immunity provided by O.R.C. §§ 2744.01 et seq, and all 

 

2 Civ.R. 56(C); Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 120, 413 N.E.2d 

1187.

3 Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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other applicable statutory immunity.”4 The village argues that this statement was 

sufficient to raise and preserve the affirmative defense of recreational-user immunity. 

{¶ 10} Case law on the immunity doctrine has established that immunity is an 

affirmative defense under Ohio law.5 Civ.R. 8(C) requires that a defendant set forth 

any affirmative defense in its answer. The 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.6 Here, we determine that the village 

did not timely raise the defense of recreational-user immunity in its answer to the 

complaint under Civ.R. 8 and that it did not move to amend to include it as a defense. 

{¶ 11} The village contends that the language “and all other statutory 

immunity” contained in its answer was sufficient to put Brown on notice of what 

defenses were being asserted, including recreational-user immunity. We disagree. 

Pleadings of the parties need only be made in generic terms, and it is acceptable to 

make fair interpolations of more specific defenses that might naturally be included in 

an asserted defense.7 However, it is not acceptable to extrapolate from an asserted 

affirmative defense something that is simply not stated in the pleadings.8 In this case, 

neither the term “recreation” nor the term “user” was used; thus it would be 

inequitable to conclude that the phrase “and all other applicable statutory immunity” 

served as adequate notice that recreational-user immunity was going to be raised as a 

defense. To conclude otherwise would put an onerous burden on the opposing party to 

 

4(Emphasis added.) Defendant’s answer. 

5 Turner v. Cent. Local School Dist. (1999), 85 Ohio St.3d 95, 97, 706 N.E.2d 1261. 

6 Reed v. Multi-Cty. Juvenile Sys., 7th Dist. No. 09 CO 27, 2010-Ohio-6602, at ¶ 40, citing Jim’s 

Steak House, Inc. v. Cleveland (1998), 81 Ohio St.3d 18, 20, 688 N.E.2d 506.

7 Id. at ¶ 47, citing Gallagher v. Cleveland Browns Football Co.(1996), 74 Ohio St.3d 427, 432-

433, 659 N.E.2d 1232. 

8 Id. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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determine which of the many statutory immunities might be “applicable” in a given 

case. 

{¶ 12} The dissent cites two cases in support of its argument that inclusion of 

the phrase “and all other applicable statutory immunity” in the answer was sufficient 

to raise the defense of recreational-user immunity. But each of these cases is easily 

distinguishable. Gallagher v. Cleveland Browns Football Co.,

9 discussed in detail in 

the dissent, involved two versions of the same defense, specifically primary and 

secondary assumption of the risk. In that case, “assumption of the risk” appeared in 

the answer, but in the case at bar, neither “recreational” nor “user” was used. And 

Reed v. Multi-Cty. Juvenile Sys.10 involved two statutes contained within the same 

chapter of the Revised Code (R.C. Chapter 2744). 

{¶ 13} In contrast, at issue in this case are two entirely different types of 

immunity that are not found in the same statute and that are not even contained in the 

same chapter of the Revised Code cited in the village’s answer (R.C. 2744.01 et seq.). It 

is not reasonable to extrapolate recreational-user immunity from an assertion of 

governmental immunity and “all other applicable statutory immunity.” Otherwise, a 

defendant could simply refer in an answer to “any affirmative defenses in Civ.R. 8, 

under the Ohio Revised Code, and the common law.” 

{¶ 14} Pursuant to Civ.R. 1(B), all rules of civil procedure “shall be construed 

and applied to effect just results by eliminating delay, unnecessary expense, and all 

other impediments to the expeditious administration of justice.” If we were to affirm 

the granting of the village’s motion for summary judgment, however, we would be 

acting in opposition to this fundamental principle. Allowing the broad phrase “all 

 

9 Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 659 N.E.2d 1232. 

10 Reed, 2010-Ohio-6602. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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other applicable statutory immunity” to include any and all types of statutory 

immunity would then require the opposing party to delve into case law and all chapters 

in the Revised Code to determine what types of immunity might be “applicable.” That 

extra effort would obviously result in delay and increased expenses. There are a 

myriad of types of immunity established as affirmative defenses either by the Revised 

Code or by the common law, none of which would this court consider to have been 

raised by the phrase at issue.11 It would be impractical, inefficient, and expensive to 

require a party to research and address every possible type of immunity that might be 

raised as a defense. 

{¶ 15} Furthermore, requiring that an affirmative defense be timely raised in 

the pleadings avoids surprise at trial.12 Not requiring a defendant to timely raise an 

affirmative defense would allow for the employment of deceitful and delaying tactics 

by parties attempting to ambush opponents by catching them unprepared. This too 

would contravene Civ.R. 1. Moreover, the village made no effort in this case to amend 

its answer, although it could have easily done so. 

{¶ 16} We hold that the village failed to timely raise the affirmative defense of 

recreational-user immunity and accordingly waived the right to assert that defense. 

We therefore sustain Brown’s assignment of error and reverse the trial court’s granting 

of summary judgment on the basis of recreational-user immunity under R.C. 1533.181. 

 

11 See, e.g., R.C. 1513.372, 1541.10, 2305.40, and 3739.17; See also Wilson v. Neu (1984), 12 Ohio 

St.3d 102, 465 N.E.2d 854, and Brodie v. Summit Cty. Children Servs. Bd. (1990), 51 Ohio St.3d 

112, 554 N.E.2d 1301. 

12 Reed, 2010-Ohio-6602, at ¶ 42. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Governmental Immunity 

{¶ 17} As we have stated, the village argues in two assignments of error in its 

cross-appeal that the trial court erred in denying summary judgment under R.C. 

Chapter 2744, and that the trial court erred in failing to determine whether the village 

had breached a duty of care to Brown so as to invoke the exception to immunity under 

R.C. 2744.02(B)(2). We address these assignments together. 

{¶ 18} It is uncontested that the village is a political subdivision; therefore R.C. 

Chapter 2744 is applicable. R.C. 2744.02(A)(1) grants a political subdivision general 

immunity from civil liability when an injury results from the performance of a 

governmental or proprietary function, subject to the exceptions set forth in R.C. 

2744.02(B).13 To determine a political subdivision’s liability under this statute, one 

must conduct a three-step analysis.14 The first step is to determine whether the act at 

issue, in this case the sponsoring of a festival, is a governmental or a proprietary 

function.15

{¶ 19} R.C. 2744.01(C) defines a governmental function as a function 

performed by a political subdivision that is “(a) [a] function that is imposed upon the 

state as an obligation of sovereignty and that is performed by a political subdivision 

voluntarily or pursuant to legislative requirement; (b) [a] function that is for the 

common good of all citizens of the state; [or] (c) [a] function that promotes or 

preserves the public peace, health, safety, or welfare; that involves activities that are 

not engaged in or not customarily engaged in by nongovernmental persons.” 

 

13 R.C. 2744.02(A)(1). 

14 Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 

372, ¶ 19. 

15 Id. at ¶ 20. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶ 20} The sponsoring of a festival is not one of the delineated governmental 

functions. The village was not required by the state as a sovereign to sponsor a festival. 

And the act of sponsoring the festival was not done for the common good of all citizens 

of Ohio. Rather, it was performed for the particular benefit of the village and its 

current and past inhabitants.16 Last, although the sponsorship of a festival does 

promote public peace, health, safety, and welfare, it is not a function in which 

nongovernmental persons are not customarily engaged.17 We therefore hold that there 

was not a governmental function involved in this case. Private organizations, 

including religious organizations, often sponsor festivals, and private for-profit entities 

like radio stations do too, so festival sponsorship can hardly be considered 

governmental for the purpose of R.C. 2744.01(C). 

{¶ 21} R.C. 2744.01(G) defines a proprietary function as one that promotes 

public peace, health, safety, and welfare, that involves activities in which 

nongovernmental persons are customarily engaged, and that is not described as a 

governmental function in section (C) of the statute. As previously discussed, this 

description is more fitting for the function that the village was performing in this case. 

The village attempts to equate its activities with examples of governmental functions 

listed in R.C. 2744.01(C)(2), including regulation of the use of and maintenance of 

public ground, but these comparisons are flawed and lack merit. We therefore agree 

with the trial court’s determination that the coordination and operation of the festival 

was a proprietary function. 

{¶ 22} The second step of the analysis involves a determination as to whether 

any of the exceptions to the general rule of immunity, contained in R.C. 2744.02(B) 

 

16 See Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St. 3d 551, 559, 733 N.E.2d 1141. 

17 Ryll, 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, at ¶ 24. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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apply.18 Under R.C. 2744.02(B)(2), immunity is removed and a political subdivision is 

liable for damages resulting from harm caused by the negligence of its employees with 

respect to the performance of proprietary functions. As we have already determined 

that the sponsoring of the festival was a proprietary function, this exception is 

applicable if there was negligence on the part of the village. 

{¶ 23} A determination as to whether the village was negligent depends on the 

duty owed by the village to Brown. In a premises-liability case like the one at hand, the 

relationship between the occupier of the premises and the injured party determines 

the duty owed.19 Ohio adheres to the common-law classifications of invitee, licensee, 

and trespasser regarding the status of a person entering the property of another.20

{¶ 24} A licensee is a person who enters the premises of another by permission 

for his own pleasure or benefit, and not by invitation.21 Like a trespasser, a licensee 

has a right to be free from willful, wanton, or reckless conduct.22 But a licensee is owed 

an extra duty of protection by a landowner in that a licensee must be warned of hidden 

dangers.23 If the landowner knows of the presence of such a danger, the licensee must 

be warned if the landowner should reasonably expect that the licensee will not discover 

the danger.24 In contrast, an invitee is a person who has rightfully come upon the 

premises of another by invitation for some purpose that is beneficial to the owner. An 

invitee is owed a duty of ordinary care.25

 

18 Ryll at ¶ 25. 

19 Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 

287. See also Hammer v. McKinnis, 6th Dist. No. L-04-1054, 2004-Ohio-7158, at ¶ 7. 

20 Gladon at 315. 

21 Hammer at ¶ 7. 

22 Id. at ¶ 8. 

23 Id. at ¶ 9, 

24 Id. 

25 Id. at ¶ 7. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶ 25} The village contends that at the time of her injury, Brown was a licensee. 

If Brown was a licensee, the village had only the duty to refrain from willful or wanton 

misconduct and to warn her of hidden dangers. Brown, on the other hand, argues that 

she had been an invitee of the village, and that by failing to warn her of the grounding 

rod or to cordon off the area containing the rod, the village had breached the duty of 

ordinary care it owed to her. Festival patrons have previously been classified as 

invitees.26 However, the status of an invitee is not absolute but is limited to the extent 

of the invitation. The invitee retains this status only while he is on a part of the 

property to which his invitation extends.27

{¶ 26} Thus, if Brown’s injury occurred in an area to which she had been 

invited by the village, she would properly be classified as an invitee. But if Brown had 

ventured into an area not held open by the village as part of the festival grounds, her 

status would be that of a licensee. With respect to this material issue, the record 

contains conflicting evidence. As stated, Ernest McCowen provided deposition 

testimony that the area in which the injury occurred had been cordoned off from the 

general festival grounds. But Brown testified in her deposition that the area had not 

been cordoned off and that no warning had been posted. This conflicting evidence is 

relevant to a determination as to whether Brown was a licensee or an invitee. Further, 

once Brown’s status is determined, the conflicting material evidence is also relevant to 

determine whether the village either complied with a duty of ordinary care or, in the 

alternative, warned Brown of a hidden danger. In this situation, genuine issues of 

material fact exist concerning Brown’s status at the time of her injury. 

 

26 See Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App.3d 29, 646 N.E.2d 198. 

27 Gladon at 315. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶ 27} When the relevant facts are undisputed, the determination of a plaintiff’s 

status is a question of law for the court to decide.28 However, when a plaintiff’s status, 

and therefore the defendant’s duty, depends on the resolution of conflicting evidence, 

as it does in this case, there is a question for the trier of fact.29 Here, viewing all 

evidence in the light most favorable to the nonmoving party, we must conclude that 

there are factual issues with respect to negligence that cannot be resolved as a matter 

of law. We accordingly overrule the village’s two assignments of error, and we affirm 

the court’s denial of summary judgment on the ground of governmental immunity. 

{¶ 28} In summary, in the appeal numbered C-100699, we reverse the trial 

court’s grant of summary judgment on the basis of recreational-user immunity under 

R.C. 1533.181 and remand this case for further proceedings in accordance with law. 

But because genuine issues of material fact exist concerning whether an exception to 

the general rule of immunity applies under R.C. 2744.02, in the appeal numbered C100721, we affirm the trial court’s denial of summary judgment on the basis of 

governmental immunity. 

Judgment accordingly. 

HILDEBRANDT, P.J., concurs. 

HENDON, J., concurs in part and dissents in part. 

 

28 Wiley v. Natl. Garages, Inc. (1984), 22 Ohio App.3d 57, 62, 488 N.E.2d 915. 

29 Id. See also Hammer, 2004-Ohio-7158, at ¶ 11. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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HENDON, Judge, concurring in part and dissenting in part.

{¶ 29} I dissent from only the majority’s decision to reverse the trial court’s 

grant of summary judgment under the recreational-user immunity statute, R.C. 

1533.181. 

{¶ 30} The village asserts that it preserved the affirmative defense of 

recreational-user immunity in its answer through the assertion that the “[p]laintiff’s 

claims are precluded by virtue of the immunity provided by O.R.C. §§ 2744.01 et seq., 

and all other applicable statutory immunity.” I agree. 

{¶ 31} The majority correctly states that the failure to raise an affirmative 

defense in the pleadings or in an amendment to those pleadings results in a waiver of 

that defense. But a party need not plead a defense with great specificity; rather, it is 

sufficient to plead in generic terms.30 

{¶ 32} This principle is illustrated in Gallagher v. Cleveland Browns Football 

Co.31 In Gallagher, the defendant had raised the defense of assumption of the risk in 

its answer. Following a jury verdict, in a motion for judgment notwithstanding the 

verdict, the defendant attempted to raise the related defense of primary assumption of 

the risk. The Ohio Supreme Court ultimately held that the defendant had waived the 

defense of primary assumption of the risk by not raising it any time prior to trial.32 But 

notably, the court further held that by raising “assumption of risk” as an affirmative 

defense in its answer, the defendant had initially preserved the defense of primary 

assumption of the risk and that had the defendant raised that defense at any point in 

the litigation prior to trial, it would not have been waived. The court specifically 

 

30 Reed v. Multi-Cty. Juvenile Sys., 7th Dist. No. 09 CO 27, 2010-Ohio-6602, at ¶ 47. 

31 Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d at 432, 659 N.E.2d 1232. 

32 Id. at 430. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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stated, “[W]e must acknowledge that Civ.R. 8(C) simply requires a party to put forth 

‘assumption of the risk’ as an affirmative defense without taking into account the 

significant distinction between primary and secondary assumption of risk.”33 The 

court distinguished this situation from the more common situation in which a 

defendant fails to raise an affirmative defense in its answer.34

{¶ 33} Furthermore, in Reed v. Multi-Cty. Juvenile Sys., the Seventh Appellate 

District held that a failure to cite a specific statute did not constitute an automatic 

waiver of a defense contained in that statute, because “[w]aiver for that reason alone 

would dispose of the case on a technicality rather than on its merits.”35 Because the 

facts of Reed are not analogous, I discuss them generically. In Reed, the plaintiff had 

filed suit against a juvenile detention facility and its employees. In its answer, the 

detention facility argued that it was entitled to governmental immunity under R.C. 

2744.01(C). But the answer failed to raise an immunity claim under R.C. 

2744.03(A)(6) with respect to its employees. In a motion for summary judgment, the 

employees argued that they also were entitled to governmental immunity under this 

latter provision. The Seventh Appellate District ultimately determined that the 

employees had waived the defense of statutory immunity because they had failed to 

raise it in the answer.36 But the court reached its conclusion based on the fact that the 

answer explicitly included the employees in certain defenses but not in others.37 And 

had the answer not otherwise distinguished between the detention facility and its 

 

33 Id. at 433, fn 3. 

34 Id. at 433. 

35 Reed, 2010-Ohio-6602, at ¶ 48. 

36 Id. at ¶ 52. 

37 Id. at ¶ 49. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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employees, the pleading of immunity under R.C. 2744.01(C) would have encompassed 

immunity under R.C. 2744.03(A)(6).38

{¶ 34} Similar to Gallagher and Reed, in this case the affirmative defense of 

recreational-user immunity was generically raised in the defendant’s answer by the 

village’s reference to immunity under R.C. Chapter 2744 and all other types of 

statutory immunity. And unlike the Gallagher case, the issue was then raised again 

with specificity in a motion for summary judgment. I cannot agree with the majority’s 

conclusion that this broad reference to “all other applicable statutory immunity” put 

an onerous burden on Brown. In the specific factual situation involved in this case, 

very few types of immunity could be deemed applicable. Therefore, I believe that the 

village timely raised the affirmative defense of recreational-user immunity found in 

R.C. 1533.181 through the inclusion of the phrase “and all other applicable statutory 

immunity” in its answer. 

{¶ 35} Civ.R. 8(F) states that pleadings are to be “construed as to do substantial 

justice.” And the Ohio Supreme Court has declared that one of the purposes of the 

Civil Rules is to allow cases to be decided “ ‘ “upon their merits, not upon pleading 

deficiencies.” ’ ”39 By reversing the trial court’s decision, we do just the opposite. As 

the majority has noted, Civ.R. 1(B) states that the Ohio Rules of Civil Procedure “shall 

be construed and applied to effect just results by eliminating delay, unnecessary 

expense[,] and all other impediments to the expeditious administration of justice.” In 

my opinion, this only reaffirms the notion that pleadings should be construed with 

 

38 Id. at ¶ 48-49. 

39 State ex rel. Huntington Ins. Agency v. Duryee (1995), 73 Ohio St.3d 530, 533, 653 N.E.2d 349, 

quoting Patterson v. V & M Auto Body (1992), 63 Ohio St.3d 573, 577, 589 N.E.2d 1306, quoting 

Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 297 N.E.2d 113. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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justice in mind and that cases should be decided upon the merits, not on pleading 

deficiencies. 

{¶ 36} I would not expand this discussion to include the allowance of dissimilar 

unnamed affirmative defenses under the precept of being “generally pleaded.” For 

example, it is not sufficient in Ohio to state in one’s responsive pleading that the 

defendant is entitled to all applicable affirmative defenses. Allowing this would set a 

dangerous precedent and manifest the concerns expressed by the majority. But that is 

not the case here, as the village is not attempting to assert any and all types of 

affirmative defenses, but rather only “all other applicable statutory immunity.” 

Therefore, I am convinced that the village has not waived its right to raise recreationaluser immunity, indisputably an example of statutory immunity, as an affirmative 

defense, and I would affirm the trial court’s grant of summary judgment on that 

ground.