An affirmative defense is a legal strategy used to push back against a claim which was made against an individual or business. It provides a response to the opposition’s lawsuit, refuting the claims that were made on their behalf. Unlike other defense strategies, an affirmative defense does more than simply deny the allegations—it proposes an independent reason why the defendant should not be liable for any of the alleged wrongs.
For businesses, utilizing an affirmative defense can be an effective way to protect their interests. Even when a business is faced with allegations or claims from another party, they can rely on an affirmative defense to create a strong defense against the claims. Depending on the particular facts of the case, a business may be able to argue a variety of affirmative defenses, such as contributory or comparative negligence, assumption of risk, impossibility, good faith, or statute of limitations.
Contributory or Comparative Negligence
Contributory or comparative negligence occurs when the plaintiff and defendant are both found to have contributed to the incident in some way. For example, when a business is sued for negligent repair, the court might determine that the plaintiff was partially at fault due to their failure to exercise reasonable care in using the product. In this instance, the company could use an affirmative defense of comparative or contributory negligence to reduce or eliminate liability.
Assumption of Risk
Assumption of risk is an affirmative defense where the plaintiff knowingly and willingly assumed the risks associated with using the product or engaging in the activity. For example, if a business provides adventure activities, the company might be able to assert an affirmative defense of assumption of risk if the plaintiff was warned of the dangers and chose to continue with the activity anyway.
Impossibility
Impossibility is a less common affirmative defense, but can be very effective if the defendant can establish that it was physically or legally impossible to do what the plaintiff is alleging. For example, if a plaintiff sues a business for a breach of contract, the defendant may be able to argue impossibility if there was an event beyond their control that prevented them from performing the terms of the contract.
Good Faith
Good faith is an affirmative defense that can be used if the defendant had no intention of engaging in wrong conduct. For example, if a business is accused of fraud but acted in good faith and without bad intent, they may be able to assert an affirmative defense of good faith to demonstrate that they had no intention of harming the plaintiff.
Statute of Limitations
The statute of limitations is an affirmative defense in which the defendant cites the amount of time that has elapsed between the incident in question and the lawsuit being filed, in order to argue that the lawsuit is no longer valid due to the expiration of the legally-defined timeline. For example, if a business is sued 10 years after the event in question, the defendant may be able to use the statute of limitations as an affirmative defense.
Affirmative defenses can be a powerful tool for businesses to protect their interests, and in many cases, they can be the difference between winning and losing a lawsuit. If a business is facing allegations or claims, they should get in touch with an experienced attorney who can advise them on how to utilize affirmative defenses for their particular situation.