The most complete list of affirmative defenses available in one place: currently 230 separate affirmative defenses. This is part of Vail Law's Litigation Checklist. Connect with me on LinkedIn.
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F.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense." Consider each of the below affirmative defenses--does it potentially apply in your case? Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings. Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966). If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties. See Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974). However, it is error for a trial court to permit a defense over an objection when first presented at trial. Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965). Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial (ideally, at least a week prior to the deadline to serve written discovery in a case).
Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process). Regardless of how they are styled, the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case. As the vast majority of these affirmative defenses will not apply to any given case, ensure you don't just plead this entire laundry list - this list is intended as a brainstorming tool. Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead. Additionally, where the factual allegations necessary to plead an affirmative defense are not set forth, the defense may be dismissed pursuant to Rule 12(b), which is normally styled as a "motion to strike."
Enough with the fanfare, here's the (necessarily incomplete) list:
List of Affirmative Defenses:
- 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
- unavoidable accident
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- not forseeable
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- equitable estoppel
- recoupment
- cardinal change
- set off
- failure/lack of consideration
- fair consideration (fraudulent transfer)
- plaintiff is not a consumer (FDCPA)
- 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
- restriction/rule/covenant was not reasonably/uniformly applied
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- no adequate remedy at law
- impermissible mandatory injunction
- adequate remedy at law (claims in equity)
- 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/barred by statute
- punitive damages sought prematurely under statute
- 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
- violation of the Soldier's and Sailor's Civil Relief Act (protections for active duty military against service of process while deployed)
- indemnity
- lack of consent
- unilateral mistake of fact
- mutual mistake
- lack of mutuality of obligation
- scrivener's error
- undue influence
- unconscionability
- adhesion
- void for vagueness
- browserwrap/clickwrap
- contrary to public policy
- claim barred by death (does not survive to be asserted by estate)
- claim barred by probate code/testament/closing of estate
- minority (age)
- no alter ego / barred by limited liability status of entity
- restraint of trade
- novation
- barred or reduced by bond
- ratification
- alteration of product
- misuse of product
- produce use was outside of particular purpose
- modification of product
- failure to provide opportunity to inspect/repair
- product supplied in accordance with specification
- good faith purchaser for value
- 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
- prior breach by plaintiff
- breach was not material
- failure of condition precedent
- anticipatory repudiation / breach
- no adequate assurances
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- business judgment rule
- not intended third-party beneficiary
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- parole evidence
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no deficiency judgment permitted by law
- 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
- barred by premises liability act
- barred by worker's compensation law
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- duty/obligation was not severable
- 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 (enjoying a renaissance due to COVID-19)
- usury
- ultra vires
- champerty
- failure to act in a commercially reasonable manner
- acquiescence
- no benefit conferred (unjust enrichment)
- refusal to surrender (unlawful detainder)
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- not inherently distinctive (trademark)
- no secondary meaning (trademark)
- fair use (trademark and copyright)
- no commercial goodwill (trademark)
- no dilution (trademark)
- prior commercial use (trademark and patent)
- license and assignment (patent)
- implied license (patent)
- no literal infringement (patent)
- doctrine of equivalents (patent)
- estoppel due to prosecution history
- limitation by prior art
- disclosed but unclaimed embodiments
- functionality defense (design patent infringement)
- repair versus reconstruction (patent)
- expiration of patent for nonpayment of fees (patent validity)
- estoppel due to prior judgment of invalidity (patent validity)
- lack of novelty re prior art (Section 102) (patent)
- prior art (patent)
- obviousness (patent)
- misnamed inventorship (patent)
- inadequately disclosed or claimed (patent)
- abandonment (patent)
- double patenting (patent)
- grace period as to disclosures from inventor (patent)
- good faith
- business competition privilege (intentional interference)
- no joint tortfeasor
- no intent to permanently deprive (civil theft)
- no intent to defraud
- prior pending action
- sovereign immunity
- governmental immunity
- failure of required notice
- truth (in defamation actions)
- statement is opinion (defamation)
- statement is privileged (defamation)
- statement is fair comment (defamation)
- single instance rule (defamation)
- innocently construed (defamation)
- made in jest (defamation)
- public person (defamation)
- 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)
- defense of others (assault/battery)
- defense of real property (assault/battery)
- defense of personal property (assault/battery)
- recapture of personal property (assault/battery)
- permission/invitation/consent (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
- forfeit of entitlement
- breach of contract
- breach of implied covenant of good faith and fair dealing
- 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
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- category of damages sought barred by contract
- damages sought in excess of limitation and barred by contract
- termination of employment
- undue burden (ADA)
- wrong party
- implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003)
- failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) - fair use (copyright). See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994)
- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage). See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)).
- ignorance of the law. Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases. See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000).
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)
- violation of the Real Estate Settlement Procedure Act (RESPA)
- violation of the Truth in Lending Act (TILA)
- barred/preempted by the Public Securities Litigation Reform Act (PSLRA)
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Jeff Vail is the founder of Vail Law LLC in Greenwood Village, Colorado (www.vail-law.com). He has extensive experience representing plaintiffs and defendants in all types of complex business litigation throughout the United States. View our entire Litigation Checklist.