Defenses and Affirmative Defenses
Liability Defenses
An affirmative defense introduces new matter that avoids liability rather than denying the plaintiff's allegations. Examples include limitations, release, assumption of risk, comparative fault, failure to mitigate, and statutory immunities.
The defendant bears the burden of pleading and proving affirmative defenses.
Alternative Names:
Defense in Avoidance, Pleaded Defense
Why it Matters?
Waiver is the practical risk. Defenses omitted from the answer are frequently lost, and the answer is due before the facts are developed, which is why careful practice pleads every defense the known facts could support and moves to amend as discovery narrows them. Boilerplate lists of thirty defenses draw criticism and occasional motions to strike, so the better approach is pleading defenses with a plausible basis rather than every defense in the treatise.
Frequently Confused with
Related terms
Frequently asked questions
What happens if an affirmative defense is not pleaded?
Who bears the burden on an affirmative defense?
