Affirmative Defense

What Is An Affirmative Defense?

An affirmative defense is a matter of avoidance. It does not attack the elements of the plaintiff’s claim; it introduces a separate fact or legal rule that excuses the defendant from liability or reduces it. The classic examples are a deadline that has passed, a release the plaintiff signed, a payment already made, or the plaintiff’s own contributing fault.

Two consequences follow. The defendant, not the plaintiff, bears the burden of proving the defense, because the defendant is the party asserting it. And the defendant must raise it early, in the responsive pleading, so the plaintiff has notice and can prepare. A defense that is not pleaded is usually treated as waived, although North Carolina courts may allow an amendment when the other side is not prejudiced.

What Does North Carolina Rule 8 Require For Affirmative Defenses?

N.C. R. Civ. P. 8 lists the defenses that must be set out affirmatively in a responsive pleading: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in actions for defamation, usury, waiver, and any other matter constituting an avoidance or affirmative defense. The pleading must contain a short and plain statement of the defense, particular enough to give the court and the parties notice of the transactions or occurrences the defendant intends to prove.

The answer that contains these defenses is due within 30 days of service under N.C. R. Civ. P. 12. Rule 12 also lists a different set of defenses, such as lack of jurisdiction, improper venue, insufficient service, and failure to state a claim, that may be raised by motion before answering. Those are procedural objections to the lawsuit itself, not affirmative defenses to the claim, and some of them are waived if they are not raised at the first opportunity.

Why Is Contributory Negligence The Most Important Affirmative Defense In North Carolina?

Because it is all or nothing. In most states a plaintiff who was partly at fault recovers a reduced amount. In North Carolina a plaintiff whose own negligence contributed to the injury recovers nothing, and that rule applies whether the plaintiff’s share of fault was large or small. Rule 8 names contributory negligence as an affirmative defense, and N.C. Gen. Stat. § 1-139 places the burden of proving it on the party asserting it. The defendant must show both that the plaintiff was negligent and that the negligence was a proximate cause of the injury.

A worked example: Teresa is struck in a Charlotte intersection by a driver who ran a red light. The driver’s answer admits the light was red but pleads contributory negligence, alleging Teresa was speeding and looking at her phone. The allegation alone changes nothing. To get the defense to the jury the driver must produce evidence, such as phone records, a reconstruction opinion on speed, or a witness. If he cannot, the judge will not instruct the jury on contributory negligence, and Teresa’s clear-fault case goes to the jury on damages alone. If he can, Teresa answers with evidence that she was within the limit and that the driver had the last clear chance to avoid her.

• Last clear chance: the plaintiff’s answer to contributory negligence; the plaintiff must plead and prove that the defendant had the final opportunity to avoid the injury.
• Gross negligence: under Yancey v. Lea, a defendant’s wanton conduct in conscious or reckless disregard of others’ safety defeats the contributory negligence defense.
• Statutory limits: seat belt non-use is inadmissible, and helmet non-use is not contributory negligence per se.

How Does A Plaintiff Respond To An Affirmative Defense?

First by reading the answer closely, because the defenses pleaded there define the battlefield. A statute of limitations defense is met with the filing date measured against the three-year period of N.C. Gen. Stat. § 1-52(16), or the two-year wrongful death period of N.C. Gen. Stat. § 1-53(4), and, where it applies, a tolling rule. A release defense is met by examining what was signed, by whom, and whether it covers this defendant; under N.C. Gen. Stat. § 1B-4, a release of one person liable for the injury does not release the others unless its terms say so. An assumption of risk defense is often met by pointing out that North Carolina courts confine it to situations involving a contractual relationship between the parties, so that in an ordinary crash or fall the same facts must be argued as contributory negligence instead.

Second by using discovery. Interrogatories and requests for production aimed at each pleaded defense force the defendant to disclose the facts and documents behind it. A defense that was pleaded reflexively, as many are, tends to collapse when the defendant has to identify its evidence. And where the defendant has no evidence, a motion for summary judgment on the defense, or a directed verdict at trial, removes it from the case before the jury ever hears it.

What Is The Difference Between An Affirmative Defense And A Counterclaim?

An affirmative defense asks the court to deny the plaintiff’s recovery. A counterclaim asks the court to award the defendant something from the plaintiff. In a two-car crash the defendant may do both: plead contributory negligence as a defense to the plaintiff’s claim and file a counterclaim for the defendant’s own injuries, to which the plaintiff raises the same contributory negligence defense in return. Rule 8 provides that when a party mislabels a defense as a counterclaim, or the reverse, the court treats the pleading as if it had been labeled correctly.

The distinction matters for insurance and for settlement. A counterclaim is a claim the plaintiff’s own liability insurer must defend, and in a contributory negligence state the two claims often cancel each other: if each driver was negligent, neither recovers. That dynamic is one reason North Carolina crash cases with disputed fault settle on terms that look nothing like the comparative-fault outcomes a national explainer would predict.