What is an “affirmative defense”?

Affirmative defenses are reasons why, even if the facts in a personal injury case happened just as the injured plaintiff claims, the defendant should not have to pay damages.

An affirmative defense may be based on the facts of the case, or it may be a defense arising from the law that governs the case. Some common affirmative defenses based in law include:

  • The statute of limitations has expired.
  • The court does not have jurisdiction over the case, or the case is being heard in the wrong venue.
  • The plaintiff has failed to state a claim. In other words, the complaint does not allege all the elements of any tort, or the injury is a kind that can’t be fixed by a civil lawsuit.
  • The rule of laches applies because the plaintiff has waited too long to bring the claim.  Laches is most often mentioned if no statute of limitations exists.
  • The plaintiff does not have standing, which is the legal right to bring a particular case to court.
  • The plaintiff’s claims are preempted by a specific state or federal law that governs all cases of this type.

Other affirmative defenses are based on the facts of the case itself. Some of these affirmative defenses include:

  • The plaintiff consented to the injury or the behavior that caused it. This defense often appears in intentional tort cases.
  • The plaintiff understood what the risk of injury was but acted anyway, and thus assumed the risk. Similarly, the plaintiff incurred the risk of her injuries by voluntarily undertaking an act that might injure her.
  • The plaintiff was partly responsible for her own injuries, and therefore comparative negligence or contributory negligence should be used to reduce the damages award.
  • The plaintiff failed to mitigate her damages, or to reduce as much as possible the costs that resulted from her injury.
  • The defendant acted in defense of himself, another person, or property.
  • The defendant acted out of the necessity to prevent greater harm.
  • Another person is partly or entirely responsible for the plaintiff’s injuries and should be included in the case. This is the defense of nonparty liability.
  • An intervening or superseding cause breaks the connection between the defendant’s act and the plaintiff’s injury, such that the defendant is not the one responsible for the injury.

In addition, a few affirmative defenses are used only in specific types of personal injury cases.  For example:

  • In a premises liability case, the defendant might assert that the hazard that caused the plaintiff’s injuries was open and obvious.
  • In a products liability case, the defendant might assert that the product was state of the art, that the plaintiff or someone else misused the product, or that someone modified the product to override its warnings or safety features.
  • In a products liability case, the defendant might also claim that a learned intermediary intervened and took over the responsibility of warning or instructing the plaintiff about how to use the product. Similarly, a defendant might assert that the plaintiff himself is a sophisticated user who knows at least as much about the product as the manufacturer.
  • In a defamation case, the defendant might assert that the statement the plaintiff claims defamed him is true, that it is an opinion, or that it was not published to a third party.

Affirmative defenses are usually included in the defendant’s answer to a complaint. In addition to the defenses listed above, most answers also contain a statement that the defendant categorically denies any statement in the complaint that he has not already denied specifically in the answer.

Most answers also state that the list of affirmative defenses is not complete, but that more affirmative defenses may come to light during discovery. These two statements are designed to protect the defendant by ensuring no facts damaging to the defendant’s case are admitted by mistake, or that, if a new affirmative defense comes up during the investigation of the case, the defendant will be able to present it to the court.

The plaintiff has the burden of proof as to her original claims in the complaint, meaning that she is responsible for demonstrating to the court that those claims are true. However, the defendant has the burden of proof as to any affirmative defenses he raises.

For instance, suppose the plaintiff was trying to cross the street when the defendant hit her with his car. The plaintiff sues, claiming the defendant’s negligent driving caused her injuries.  The plaintiff must show that it was more likely than not the defendant was negligent and his negligence caused her injuries. Suppose, however, that the defendant brings up the affirmative defense of comparative negligence, arguing that the plaintiff was partially responsible for her injuries because she was jaywalking. The defendant must prove that it is more likely than not that the plaintiff contributed to her injuries by jaywalking.

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