What Is An Affirmative Defense?
When someone is sued, that person, known as the defendant, probably has some thoughts regarding why the claims against them are incorrect, excused, or defensible. Generally speaking, these thoughts can be turned into affirmative defenses. To reduce or stop a judgment from being entered, a defendant will need to allege the proper affirmative defense, prepare evidence to support each defense, and present that evidence in court. Importantly, the affirmative defense must be pled in the responsive pleading or it could be deemed waived.
Colorado Rule of Civil Procedure 8 states: “A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments of the adverse party.” The list of general affirmative defenses in Rule 8 contains the following:
- “accord and satisfaction,
- arbitration and award,
- assumption of risk,
- contributory negligence,
- failure of consideration,
- injury by fellow servant,
- res judicata,
- statute of frauds,
- statute of limitations,
- waiver, and
- any other matter constituting an avoidance or affirmative defense. Any mitigating circumstances to reduce the amount of damage shall be affirmatively pleaded.”
However, this is not necessarily an exhaustive list. Affirmative defenses, avoidances, and/or mitigating circumstances generally exist for each type of civil claim in Colorado. It’s important to review each claim alleged by the plaintiff and see if there is case law and statutes on point that provide more defenses. For example:
- a defense against a mechanic lien foreclosure is that the homeowner paid the contractor (see C.R.S. § 38-22-102)
- a defense against defamation is that the alleged “defamatory” comments were true
- a defense against breach of contract could be fraudulent inducement
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