Affirmative Defense

Affirmative defenses are reasons why the defendant should not be liable for the plaintiff’s injuries. An affirmative defense does not deny the allegations in the plaintiff’s petition. Rather, when a defendant asserts an affirmative defense the defendant states that she should not be liable even if the facts occurred exactly the way the plaintiff claims they occurred.

The defendant has the burden of proof when the defendant raises an affirmative defense.

What are Some Examples of Affirmative Defenses that the Defendant can assert?

When is the Affirmative Defense Asserted?

If the defendant fails to plead an affirmative defense, the defendant waives that defense. This means that the defendant cannot raise the defense at trial unless the other party consents to trial of the issue. Accordingly, an affirmative defense is usually raised in the defendant’s answer to a lawsuit

What is an Inferential Rebuttal?

Inferential rebuttals are defenses that attempt to rebut an essential element of the plaintiff’s case by proving the truth of certain other facts.

Inferential rebuttals are different from affirmative defenses. When the defendant invokes an affirmative defense, the defendant is claiming that they should not be liable even if all of the elements of a plaintiff’s cause of action are true. When the defendant invokes an inferential rebuttal, the defendant attempts to rebut one of the elements of the plaintiff’s claim.

The Texas Pattern Jury Charge provides five different inferential rebuttals:

  • New and independent cause
  • Sole proximate cause,
  • Emergency,
  • Unavoidable accident
  • Acts of God