Great list of Affirmative Defenses — from Lyle Harrison

thanks Lyle!

This is one of the most complete lists I have seen.

Affirmative defenses are generally listed at the time an Answer or Counter claim is filed, and an Answer to A complaint or counter claim may be made at any time prior to trial and may be done freely where “justice so requires.”

List of Affirmative Defenses (Partial): Colorado
– failure to state a claim upon which relief may be granted (almost always use)
– statutory defenses prerequisites (these will vary depending on the claims)
– preemption by federal or other law
– accord and satisfaction
– arbitration and award
– assumption of risk
– economic loss rule
– contributory or comparative negligence
– intervening cause
– supervening cause
– claimants own conduct, or by the conduct of its agents, representatives, and consultants
– discharge in bankruptcy
– duress
– estoppel
– recoupment
– cardinal change
– set off
– failure of consideration
– fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
– fraud in the inducement
– illegality
– injury by fellow servant
– borrowed servant
– laches
– license
– payment
– release
– res judicata
– statute of frauds
– statute of limitations
– waiver
– unclean hands
– no adequate remedy at law
– failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
– rejection of goods
– revocation of acceptance of goods
– conditions precedent
– discharge
– failing to plead fraud with particularity
– no reliance
– attorneys’ fees award not permissible
– punitive damages not permissible
– lack of standing
– sole negligence of co-defendant
– offset
– collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
– improper service
– failure to serve
– indemnity
– lack of consent
– mistake
– undue influence
– unconscionability
– adhesion
– contrary to public policy
– restraint of trade
– novation
– ratification
– alteration of product
– misuse of product
– charitable immunity
– misnomer of parties
– failure to exhaust administrative remedies
– frustration of purpose
– impossibility
– preemption
– prior pending action
– improper venue
– failure to join an indispensable party
– no private right of action
– justification
– necessity
– execution of public duty
– breach by plaintiff
– failure of condition precedent
– anticipatory repudiation
– improper notice of breach
– breach of express warranty
– breach of implied warranty
– parol evidence rule
– unjust enrichment
– prevention of performance
– lack of privity
– merger doctrine
– learned intermediary or sophisticated user doctrine
– adequate warning
– no evidence that modified warning would have been followed or would have prevented injury
– manufacturing/labeling/marketing in conformity with the state of the art at the time
– release
– res judicata
– assumption of the risk
– product was unavoidably unsafe
– product provides net benefits for a class of patients
– spoliation
– damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant’s conduct
– lack of causal relationship
– act of god (or peril of the sea in admiralty cases)
– force majeure
– usury
– failure to act in a commercially reasonable manner
– acquiescence
– doctrine of primary or exclusive jurisdiction
– exemption
– failure to preserve confidentiality (in a privacy action)
– filed rate doctrine
– good faith
– prior pending action
– sovereign immunity
– truth (in defamation actions)
– suicide (in accident or some benefits actions)
– adverse possession (in trespass action)
– mutual acquiescence in boundary (in trespass action)
– statutory immunity (under applicable state or federal law)
– unconstitutional (relating to statute allegedly violated)
– insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
– self-defense (in assault, battery, trespass actions)
– permission/invitation (in assault, battery, trespass actions)
– agency
– Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
– at-will employment
– breach of contract
– hindrance of contract
– cancellation of contract/resignation
– circuitry of action
– discharge (other than bankruptcy)
– election of parties
– election of remedies
– joint venture
– lack of authority
– mutual mistake
– no government action
– privilege
– reasonable accommodation
– retraction
– safety of employee (ADA)
– statutory compliance
– no damages (where required element of pleading)
– termination of employment
– undue burden (ADA)
– wrong party

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