2024 Ohio 764
Ohio2024Background
- In Spring 2020, Ohio State University (OSU) shifted to virtual learning and restricted in-person activities in response to the COVID-19 pandemic, providing only partial refunds to students for certain fees, but not tuition or other fees.
- Brooke Smith, an OSU undergraduate, filed a class action against OSU (and initially the Ohio Department of Higher Education) for breach of contract, unjust enrichment, and conversion, seeking pro-rated refunds for educational services and fees during the campus shutdown.
- The Ohio Department of Higher Education was voluntarily dismissed from the case; OSU moved to dismiss on failure to state a claim but did not initially raise discretionary immunity.
- OSU later asserted discretionary immunity as an affirmative defense in its answer but not in its initial motion to dismiss.
- The Court of Claims certified a plaintiff class; the Tenth District reversed class certification on procedural grounds but held discretionary immunity was an affirmative defense, not a jurisdictional bar.
- The Supreme Court of Ohio accepted review solely on whether discretionary immunity is a jurisdictional bar or an affirmative defense, not on the merits of the class claims or immunity application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is discretionary immunity a jurisdictional bar to suit in the Court of Claims? | Immunity is an affirmative defense, so Court of Claims has subject matter jurisdiction and must decide the merits. | When discretionary immunity applies, Court of Claims lacks jurisdiction; immunity is a jurisdictional bar, not a defense. | Discretionary immunity is a jurisdictional bar; when it applies, Court of Claims lacks jurisdiction. |
| Can Smith challenge OSU’s policy decisions during the pandemic in Court of Claims? | Smith is entitled to pursue damages for the loss resulting from OSU’s execution of its policy decisions, not to contest the decisions themselves. | Policy decisions involving high discretion (e.g., pandemic response) are immune from suit; thus, no jurisdiction. | The court remanded for determination whether OSU’s conduct was protected by discretionary immunity as a jurisdictional bar. |
| Does raising discretionary immunity for the first time after the initial motion to dismiss for failure to state a claim amount to waiver? | Immunity not timely raised in motion to dismiss, so should be treated as waived if not raised appropriately as an affirmative defense. | Immunity is jurisdictional, can be raised at any stage; not waivable. | Jurisdictional bars can be raised at any time; not waivable. |
| Should the Court of Claims or appellate court determine discretionary immunity as a threshold matter? | Court of Claims is best suited to handle such factual and legal questions initially. | Jurisdictional bar can be determined by any court reviewing subject matter jurisdiction. | Remand to appellate court to decide if discretionary immunity applies and Court of Claims has jurisdiction. |
Key Cases Cited
- Reynolds v. State, 14 Ohio St.3d 68 (Ohio 1984) (State immunity for discretionary functions but liability for negligence in execution)
- State v. Hudson, 169 Ohio St.3d 216 (Ohio 2022) (Subject-matter jurisdiction reviewed de novo)
- Morrison v. Steiner, 32 Ohio St.2d 86 (Ohio 1972) (Definition of subject-matter jurisdiction and court's competency)
- Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18 (Ohio 1998) (Waiver of affirmative defenses not raised properly)
- Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31 (Ohio 1981) (Judicial/legislative power to set scope of sovereign immunity)