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Affirmative Defenses for Civil Lawsuits in Colorado
Broadly speaking, an affirmative defense is a defense that excuses or negates liability for conduct that would otherwise result in liability. That is, an affirmative defense excuses liability where, even if the actions alleged are true, the party who committed those actions will not be held liable.
Importantly, an affirmative defense is different from a general denial defense or a negating defense. A general denial defense or a negating defense attacks the elements that establish liability in the first place. Put simply, a general denial defense or a negating defense disputes the elements required to establish liability while an affirmative defense alleges that even if the elements are present, liability is still excused for other reasons. See State, Dep’t of Corrections v. Nieto, 993 P.2d 493, 507 (Colo. 2000).
Pleading Affirmative Defenses for Civil Lawsuits in Colorado
Under Colorado law, affirmative defenses must be asserted during the lawsuit or otherwise they will be deemed waived. Commonly, affirmative defense asserted at the time a defendant files an answer to claims alleged him in the lawsuit. While answers can be amended as the lawsuit progresses, at some point the presiding court will not permit an amendment and, if an affirmative defense has not already been timely asserted, the defendant will lose their right to do so. Accordingly, determining what affirmative defenses to assert early on in the lawsuit is an important step in litigating a case. See Colorado Rule of Civil Procedure (“C.R.C.P.”) 8(c).
Along these same lines, what qualifies as an affirmative defense in Colorado civil lawsuits is construed more broadly than what qualifies as an affirmative defense in a criminal lawsuit. In particular, for criminal cases, affirmative defenses are primarily limited to defenses which admit the elements of a crime but the conduct at issue is otherwise justified or excused because of other circumstances or events.
In contrast, for civil lawsuits, because C.R.C.P. 8(c) indicates any “avoidance or affirmative defense” must be affirmatively plead, what qualifies as an affirmative defense in civil cases is broader than the strict interpretation of what qualifies as an affirmative defense in criminal cases.
That is, because C.R.C.P. 8(c) uses languages that includes avoidances as well as affirmative defenses, the rule requires that any legal argument a defendant may assert to require dismissal of a claim or to prevail at trial must be plead, not just affirmative defenses in the strict sense that only apply where all the elements of a claim are proven. See Hawg Tools, LLC v. Newsco International Energy Services, Inc., 2016 COA 176M (Colo. App. 2016).
Notably, however, the broad definition of affirmative defenses used in civil cases is still in contrast to the mere denial of an element of a plaintiff’s claim. A general denial defense is still separate from an avoidance or affirmative defense and does not need to be explicitly plead; instead, the defendant will simply deny the factual allegations of a plaintiff’s claim.
Importantly, while it is good practice to plead any applicable affirmative defenses early on in a lawsuit in a defendant’s answer, in some circumstances failing to plead an affirmative defense in an answer does not automatically waive it. In particular, if the affirmative defense is subsequently raised by a party in argument after an answer has been filed, such as in a motion to dismiss or a motion for summary judgment, and is raised early enough in the lawsuit to give adequate notice of the defense, the defense may still be asserted as determined by the court. See Vincent v. Clean Water Action Project, 939 P.2d 469 (Colo. App. 1997).
Burden of Proof for Affirmative Defenses in Colorado
In general, a party asserting an affirmative defense has the burden of proving it. That is, an affirmative defense is not assumed to be valid thereby requiring a plaintiff to disprove it; instead, the burden of proof rests with the defendant.
The specific burden of proof for establishing factual elements for an affirmative defense claim is by a preponderance of the evidence. Accordingly, the defendant has the burden of establishing that any factual elements of an alleged affirmative defense were more likely than not to have occurred. See CJI-Civ. 3:1 (CLE ed. 2016).
General Affirmative Defenses for Civil Lawsuits in Colorado
General affirmative defenses are affirmative defenses that are not specific to the type of claim asserted but, instead, where applicable they can negate or limit liability for almost any type of claim. Common examples of general affirmative defenses in Colorado include:
1. Arbitration and award.
Arbitration and award is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Arbitration and award occurs where an agreement between the parties requires that any disputes between the parties be submitted to arbitration before damages can be awarded in a traditional lawsuit. Arbitration agreements are most common in the realm of commercial contracts but can occur in other legal fields as well. Notably, arbitration awards, if obtained, are analogous to judgments in a court of law and can usually be enforced in the same manner as a traditional judgment as well. See Granite State Ins. Co. v. Dundas, 528 P.2d 961 (Colo. App. 1974).
2. Discharge in bankruptcy.
Discharge in bankruptcy is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Discharge in bankruptcy occurs where a debt has already been discharged in a bankruptcy proceeding and, accordingly, can no longer be the subject matter of a lawsuit. Notably, some debts and liabilities are not dischargeable in bankruptcy and can still be the basis of lawsuit even if the debtor has already declared bankruptcy. See People v. Foos, 2016 COA 139 (Colo. App. 2016).
3. Equitable estoppel.
Equitable estoppel is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Equitable estoppel stems from the general notion that a party should not be allowed to assert something contrary to what that party previously implied or asserted. That is, a party should not be able to lead a defendant into believing that legal action will not be taken against the defendant and then, later, reneges on that assertion and attempts to pursue legal claims against the defendant. Importantly, since estoppel is an equitable doctrine, the party asserting it must also have acted ethically and in good faith; otherwise, courts may decline to apply an equitable estoppel defense on the basis of unclean hands. See Extreme Construction Co. v. RCG Glenwood, LLC, 310 P.3d 246 (Colo. App. 2012).
4. Failure to exhaust administrative remedies.
Failure to exhaust administrative remedies is an affirmative defense specific to claims that require any administrative options for relief to be exhausted before pursuing relief in court. Where applicable, the defense should be alleged in an answer in order to be preserved. The requirement that administrative remedies need to be exhausted before filing a lawsuit are applicable to a broad variety of legal claims including, by way of example, employment discrimination claims that must first be pursued with the Equal Employment Opportunity Commission, tax disputes that must first be pursued with state or government tax departments, and decisions to pertaining to land use that must first be pursued at the local and municipal levels. Once all avenues for relief are exhausted within an administrative agency, the plaintiff typically may then file a lawsuit and seek relief from a court of law. See Acosta v. Jansen, 499 P.2d 631 (Colo. App. 1972).
5. Failure to join an indispensable party.
Failure to join an indispensable party is a specific defense enumerated under C.R.C.P. 12(b). It can be asserted in an answer as well by filing a motion to dismiss before filing an answer. An indispensable party is a party whose interest in the litigation is significant enough that, if a judgment is entered in the case, it will injuriously affect the rights of that party. If a party meets those requirements, it must be joined in the action under C.R.C.P. 19(a). Failure to join an indispensable party may be alleged at any stage in the proceeding prior to the entry of judgment. Additionally, asserting a defense of failure to state a claim in an answer or responsive pleading is sufficient to preserve the specific defense of failure to join an indispensable party. See Cold Springs Ranch v. Dept. of Nat. Res., 765 P.2d 1035 (Colo. App. 1988); Prutch Bros. TV v. Crow Watson No. 8, 732 P.2d 241 (Colo. App. 1986).
6. Failure to state a claim upon which relief may be granted.
Failure to state a claim is a specific defense enumerated under C.R.C.P. 12(b). It can be asserted in an answer as well by filing a motion to dismiss before filing an answer. Failure to state a claim for relief assets that even if the facts as pleaded are true, the facts would not support the claim for relief alleged against the defendant. Additionally, failure to state a claim for relief may be alleged at any stage in the proceeding prior to the entry of judgment. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011); Colo. Land & Res., Inc. v. Credithrift of Am., Inc., 778 P.2d 320 (Colo. App. 1989). See also C.R.C.P. 12(h)(2).
7. Fraud.
General fraud is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. While most frequently applied to contract disputes, general fraud can be applicable to various types of claims and primarily requires that a false representation of a material fact was made, that the party making the representation knew it was false, that the other party justifiably relied on that misrepresentation, and that the relying party suffered damages. See Robert K. Schader, P.C. v. Etta Industries, Inc., 892 P.2d 363 (Colo. App. 1994).
8. Illegality.
Illegality is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Illegality is most frequently applied to contract disputes but generally applies where the plaintiff’s claims are barred because the claims are premised on actions that are otherwise illegal. One specific application of an illegality defense is in contraction actions where illegal contracts are not enforceable. In such circumstances, the affirmative defense of illegality would bar recovery in a breach of contract action where the contract was for a party to perform an illegal action. See Aerospace Realty Co. v. Tooth, Ltd., 539 P.2d 1314 (Colo. App. 1975).
9. Insufficiency of service of process.
Insufficiency of service of process is a specific defense enumerated under C.R.C.P. 12(b). It can be asserted in an answer as well by filing a motion to dismiss before filing an answer. Because personal service on a defendant is required to comply with due process principles of the U.S. Constitution, insufficiency of service of process is oriented towards claiming that the defendant was never served or inappropriately served and, thus, jurisdiction was never properly obtained over the defendant. Importantly, a defense of insufficiency of service of process will be deemed waived if a motion to dismiss under C.R.C.P. 12(b) is filed and the defense is not specifically asserted or, if no motion is filed, it is not asserted in the answer. See Bd. of County Comm’rs v. District Court, 472 P.2d 128 (Colo. 1970). See also C.R.C.P. 12(h)(1).
10. Laches.
Laches is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. In general, laches occurs where there has been an unconscionable delay in a party asserting its rights which has prejudiced the party against whom relief is sought. Notably, the party seeking relief must have had full knowledge of the facts giving rise to the claim in order for laches to be applicable. See Superior Const. Co., Inc. v. Bentley, 104 P.3d 331 (Colo. App. 2004).
11. Lack of capacity to sue.
Lack of capacity to sue is a specific defense enumerated under C.R.C.P. 9(a)(1). Although not technically an affirmative defense, where applicable, the defense should be specifically raised in an answer by negative averment in order to be preserved. Lack of capacity to sue can occur in various circumstances but is most commonly applicable where a business has asserted claims in a lawsuit but the business is not a compliant legal entity. Accordingly, in such circumstances, the business does not have capacity to bring a legal action. Notably, if properly asserted, lack of capacity to sue becomes an issue to be resolved at trial and is not subject to a motion to dismiss under C.R.C.P. 12(b). See Ashton Properties, Ltd. v. Overton, 107 P.3d 1014 (Colo. App. 2004).
12. Lack of subject matter jurisdiction.
Lack of subject matter jurisdiction is a specific defense enumerated under C.R.C.P. 12(b). It can be asserted in an answer as well as by filing a motion to dismiss before filing an answer. Lack of subject matter jurisdiction is a defense asserting that the court does not have the power to entertain or rule on the claims before it. There are various grounds for asserting lack of subject matter jurisdiction, including the action has been brought in the wrong court or the type of claims is one the court does not have authority to adjudicate. Notably, lack of subject matter jurisdiction can be asserted at any point during a lawsuit. See Ashton Properties, Ltd. v. Overton, 107 P.3d 1014, 1017 (Colo. App. 2004).
13. Lack of personal jurisdiction.
Lack of personal jurisdiction is a specific defense enumerated under C.R.C.P. 12(b). It can be asserted in an answer as well by filing a motion to dismiss before filing an answer. Lack of personal jurisdiction is typically used in scenarios where the defendant is a non-resident of the state and there is an issue as to whether the defendant has sufficient contacts with the forum state to be brought into court in the forum state. Importantly, a defense of lack of personal jurisdiction will be deemed waived if a motion to dismiss under C.R.C.P. 12(b) is filed and it is not specifically asserted or, if no motion is filed, it is not asserted in the answer. See Goettman v. North Fork Valley Restaurant, 176 P.3d 60, 67 (Colo. 2007). See also C.R.C.P. 12(h)(1).
14. License.
License is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. The affirmative defense of license is most commonly applied with intellectual property related claims such as patent infringement claims, copyright claims, and trade secret claims. In effect, a license defense is applicable where the plaintiff is asserting the defendant used something of the plaintiff’s that the defendant didn’t have the right to but the defendant previously obtained permission to do so, also known as a license. Additionally, a license defense is also applicable to claims related to use of physical property, such as trespassing claims. See Welsch v. Smith, 113 P.3d 1284 (Colo. App. 2005).
15. Mitigating circumstances for damages.
Any mitigating circumstances that, if proven, would reduce the amount of damages are required to be affirmatively pled under C.R.C.P. 8(c). Mitigation of damages is the principle that a damaged party has a responsibility to take reasonably actions to prevent any damages incurred from getting worse. The principle is applicable to a variety of different claims, examples of which include a landlord’s obligation to mitigate damages when a tenant has breached the contract, an injured party’s duty to mitigate pain and suffering by seeking medical attention in personal injury cases, setoffs to damages attributable from other settlements or payments under insurance policies, or payments received from a collateral source that reduce the amount of recoverable damages. See C.R.S. § 13-21-111.6; Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009); Anderson v. Watson, 953 P.2d 1284 (Colo. 1998); CJI-Civ. 26:1 (CLE ed. 2016).
16. Preemption.
Preemption is an affirmative defense specific to scenarios where a claim has been preempted by federal or state law and, where applicable, should be alleged in an answer in order to be preserved. Preemption occurs where a legislative enactment or new case law supersedes a claim or defense thereby rendering the claim no longer operative. See Hawg Tools, LLC v. Newsco International Energy Services, Inc., 2016 COA 176M (Colo. App. 2016).
17. Release.
Release is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. A defense of release is relevant where the plaintiff has previously agreed to give up specific legal claims or surrender them in exchange for consideration from the defendant. Notably, releases are common terms in settlement agreements. See Alzado v. Blinder, Robinson & Co., Inc., 752 P.2d 544 (Colo. 1988).
18. Res judicata.
Res judicata is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Res judicata is the principle that once a claim has already been litigated the claim cannot be relitigated later on. Accordingly, the defense of res judicata asserts that a claim brought in a lawsuit has previously been litigated or could have been litigated in a prior action and, accordingly, cannot now be litigated again. See Vincent v. Clean Water Action Project, 939 P.2d 469 (Colo. App. 1997).
19. Statute of limitations.
Statute of limitations is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. A statute of limitations defense applies where the plaintiff has failed to bring the claim within the time period required by Colorado’s statute of limitations. Under Colorado law, the time period required for bringing a claim varies between 1 and 6 years depending on the type of claim being asserted. Notably, courts can toll the limitations time period out of principles of equity if appropriate circumstances exist, such as where the defendant’s own actions have prevented a lawsuit from being timely filed. See Overheiser v. Safeway Stores, Inc., 814 P.2d 12 (Colo. App. 1991).
20. Unclean hands.
Unclean hands is an affirmative defense specific to equitable claims and defenses and, where applicable, should be alleged in an answer in order to be preserved. The unclean hands doctrine stems from the general principle that a party asking for equitable relief from a court should not be entitled to that relief where that party acted unethically in relation to the subject matter at issue in the lawsuit. That is, where a party requesting equitable relief made false representations, stole property, or otherwise acted unethically, the party may not be entitled to equitable relief because of those actions. See Predator International, Inc. v. Gamo Outdoor Usa, Inc., No. 09-cv-00970-PAB-KMT (D. Colo. Jan 31, 2014).
21. Waiver.
Waiver is a specific defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Waiver is similar to the affirmative defense of release discussed above and occurs where a plaintiff has intentionally relinquished a known right, such as the right to pursue a claim against a defendant. Notably, waivers do not have to be explicit but, instead, can be implied by the plaintiff’s. Waivers are frequently seen in settlement and release agreements where an injured party waives their right to proceed with a claim in exchange for a monetary settlement. See NationsBank of Georgia v. Conifer Asset Management Ltd., 928 P.2d 760 (Colo. App. 1996).
Affirmative Defenses Specific to Contract Disputes in Colorado
While general defenses are applicable to various types of claims, regardless of the nature of the claim, there are additional affirmative defenses specific to contract claims. Examples of affirmative defenses in Colorado specific to contract claims include:
1. Accord and satisfaction.
Accord and satisfaction, also known as formation of a later contract, is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Accord and satisfaction occurs where the plaintiff and defendant have entered into a contract and then subsequently enter into a later contract that cancels or changes the remaining rights and duties under the original contract. See Caldwell v. Armstrong, 642 P.2d 47 (Colo. 1981).
2. After-acquired evidence of fraud or misconduct in relation to breach of an employment contract.
After-acquired evidence of fraud or misconduct in relation to breach of an employment contract is an affirmative defense specific to a wrongful discharge claim where an employment contract exists and, where applicable, should be alleged in an answer in order to be preserved. The defense negates liability where the defendant discovered fraud or other misconduct by the plaintiff – such as fabricating a resume, committing theft, or committing sexual harassment – after the plaintiff’s employment was terminated; and a reasonable employer would otherwise have terminated the employee once the fraud or misconduct was discovered. See Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540 (Colo. 1997).
3. Cancellation by agreement.
Cancellation by agreement is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Cancellation by agreement occurs where the plaintiff and defendant entered into a contract and, before either party rendered performance under the contract, both parties agreed to cancel it. Notably, cancellation by agreement is not a valid defense where one party has already performed under the contract. See Esecson v. Bushnell, 663 P.2d 258 (Colo. App. 1983).
4. Duress.
Duress is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Duress is typically applied to contract claims as a defense to formation of the contract; however, it can generally apply in other situations to negate consent where it was otherwise given, such as consent for an unwanted touching. Duress occurs where a party is forced to enter into a contract, or otherwise give consent, as the result of an improper threat that leaves that party no reasonable alternative. Where duress has occurred, it makes the contract or consent voidable at the discretion of the party that was subject to duress. See Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504 (Colo. App. 2006).
5. Economic loss rule.
While not technically an affirmative defense, the economic loss rule applies to breach of contract claims and, where applicable, should still be asserted in an answer in order to be preserved. The economic loss rule is designed to maintain the distinction between tort claims and contract claims. Specifically, the rule bars tort claims in breach of contract actions unless there is an independent duty of care under tort law that is not imposed by the contract. The economic loss rule prevents parties from seeking noneconomic damages, such as pain and suffering, that are not available in breach of contract claims but otherwise would be in tort claims. See Stewart Software Co., LLC v. Kopcho, 275 P.3d 702 (Colo. App. 2010).
6. Failure of consideration.
Failure of consideration is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Failure of consideration is a specific defense to a contract claim as, in order for a contract to be formed, there must be an exchange of something of value, also known as consideration. Accordingly, failure of consideration alleges that the consideration forming the basis of the contract has since become worthless, ceased to exist, or otherwise failed to materialize. See Hickman-Lunbeck Grocery Co. v. Hager, 227 P. 829 (Colo. 1924).
7. Failure to comply with conditions precedent.
Failure to comply with conditions precedent is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Failure to comply with conditions precedent negates a breach of contract claim where an act or event was required to occur before a contractual duty for the defendant arose and that act or event failed to occur. See Soicher v. State Farm Mut. Auto. Ins. Co., 351 P.3d 559 (Colo. App. 2015).
8. Fraud in the factum.
Fraud in the factum is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Fraud in the factum occurs where the plaintiff has deceived the defendant about the nature of the contractual document itself as opposed to facts surrounding the underlying contract negotiations. For example, if the plaintiff represented to the defendant that the document she was signing was a simple receipt when, in actuality, it was a deed of trust to transfer property, then a fraud in the factum defense would bar enforcement of the transfer. Notably, where fraud in the factum occurs it renders the underlying contract void as opposed to voidable at the election of the defendant. See Delsas ex rel. Delsas v. Centex Home Equity Co., LLC, 186 P.3d 141 (Colo. App. 2008).
9. Fraud in the inducement.
Fraud in the inducement is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Fraud in the inducement occurs where, in entering into a contract with the defendant, the plaintiff made false factual representations or otherwise failed to disclose material information that should have been disclosed, and the defendant relied upon the plaintiff’s representations in agreeing to the contract. If fraud in the inducement is proven, the defendant’s performance under the contract will be excused. See Trimble v. Denver, 697 P.2d 716 (Colo. 1985).
10. Impossibility of performance.
Impossibility of performance is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Impossibility of performance occurs where an event that could not be reasonably be anticipated by the plaintiff and defendant, and that was not caused by the defendant, renders performance under the contract impossible. Notably, impossibility does not mean literal impossibility but, instead, includes circumstances where performance of the contract is actually possible but would result in extreme and unreasonable difficulty, expense, injury, or loss. See City of Littleton v. Employers Fire Ins. Co., 453 P.2d 810 (Colo. 1969).
11. Inducing a breach by words or conduct.
Inducing a breach by words or conduct is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Inducing a breach by words or conduct excuses a defendant’s obligation to perform under a contract where the plaintiff’s words or conduct caused the defendant to breach the contract and the plaintiff knew her actions would cause or were likely to cause the breach. See Dreier v. Sherwood, 238 P. 38 (Colo. 1925).
12. Mental incapacity.
Mental incapacity is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Mental capacity negates the existence of a contract where, at the time the defendant entered into a contract, the defendant was suffering from an insane delusion that made him unable to understand the terms of the contract or to act rationally in the transaction. See Hanks v. McNeil Coal Corp., 168 P.2d 256 (Colo. 1946).
13. Minority.
Minority is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Under Colorado law, a defendant that enters into a contract before turning 18 may disaffirm that contract and will not be responsible for breach of the contract. Where these circumstances apply and the defendant has disaffirmed the contract, a minority defense will bar a breach of contract claim. See Keser v. Chagnon, 410 P.2d 637 (Colo. 1966).
14. Mutual mistake.
Mutual mistake is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Mutual mistake negates the existence of a contract where the parties were both mistaken about facts essential to the contract. That is, the parties were in agreement about entering into a contract, however, they were both mistaken about material facts pertaining to the contract. See Carpenter v. Hill, 283 P.2d 963 (Colo. 1955).
15. Novation.
Novation is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Novation is similar to the defense of accord and satisfaction discussed above and occurs where parties to a contract enter into a new contract which replaces the old one. Notably, the new contract must completely replace the obligations under the original contract in order to be an effective novation. Novations frequently occur in creditor-debtor relationships where a debtor needs to restructure a payment plan. See Phoenix Power Partners, L.P. v. Colorado Pub. Util. Comm’n, 952 P.2d 359 (Colo. 1998).
16. Payment.
Payment is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Payment is an affirmative defense in actions where money is allegedly owed by the defendant to another party. One particular area an affirmative defense of payment is relevant to is where liens are placed on a defendant’s property. In effect, a payment defense asserts that the underlying amount for the lien has already been payed. See C.R.S. § 38-22-102; Wholesale Specialties, Inc. v. Village Homes, Ltd., 820 P.2d 1170 (Colo. App. 1991).
17. Statute of frauds.
Statute of frauds is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. A statute of frauds defense comes from Colorado state statutes requiring that certain types of contracts be in writing in order to be enforceable. Examples of contracts that are required to be in writing in Colorado include contracts that are for longer than a period of 1 year; credit agreements over $25,000; and contracts for the sale of goods over $500. Where a contract is required to be in writing but it is not, a breach of contract claim will be barred. See Univex Int’l, Inc. v. Orix Credit All., Inc., 902 P.2d 877 (Colo. App. 1995).
18. Undue influence.
Undue influence is an affirmative defense specific to breach of contract claims and, where applicable, should be alleged in an answer in order to be preserved. Undue influence is similar to the affirmative defense of duress discussed above and, in effect, asserts that the defendant was forced into the contract by the plaintiff. Accordingly, the defendant was not acting of his own accord or free at the time of entering into the contract which negates the existence of one. See Colorado Jury Instruction-Civil 30:19 (CLE ed. 2016); Lighthall v. Moore, 31 P.511 (Colo. 1892).
Affirmative Defenses Specific to Tort and Personal Injury Claims in Colorado
In addition to affirmative defenses specific to contact claims, there are also affirmative defense specific to tort claims, also known as personal injury claims. Examples of affirmative defenses in Colorado specific to tort and personal injury claims include:
1. Absolute privilege in relation to a defamation claim.
Absolute privilege in relation to a defamation claim is an affirmative defense specific to defamation claims and, where applicable, should be alleged in an answer in order to be preserved. Under Colorado law, some classes of persons have an absolute privilege to publish statements and cannot be held liable regardless of whether the statements are defamatory or not. Examples of circumstances where an absolute privilege applies include judges making statements in their judicial capacity; statements made by witnesses, attorneys, or parties in a judicial proceeding; legislators or other people giving testimony in relation to a legislative manner; and certain executive and administrative officers giving statements in relation to the official duties. See Hoffler v. Colo. Dep’t of Corr., 27 P.3d 371 (Colo. 2001).
2. Advice of attorney.
Advice of attorney is an affirmative defense specific to malicious prosecution claims and, where applicable, should be alleged in an answer in order to be preserved. An advice of attorney defense applies where a defendant caused a criminal case to be brought against the plaintiff but, in doing so, the defendant made a full, fair, and honest disclosure to a prosecuting attorney concerning the facts relating to the criminal case or to another attorney who advised the defendant there were reasonable grounds to believe the plaintiff had committed a crime. In such circumstances, if the criminal case is ultimately dismissed or if the plaintiff is acquitted, the defendant will not be liable for a malicious prosecution claim arising from the criminal case being brought against the plaintiff. See Montgomery Ward & Co. v. Pherson, 272 P.2d 643 (Colo. 1954).
3. Assumption of the risk.
Assumption of the risk is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Assumption of the risk is typically applied to negligence claims where allegations are made that a party failed to do an act which a reasonably careful person would otherwise have done and that failure resulted in injury to the plaintiff. Assumption of the risk occurs where a person voluntarily assumes the risk of injury or unreasonably exposes himself to such injury with knowledge of the danger and risk involved. Notably, assumption of the risk is a form of contributory negligence. See C.R.S. § 13-21-111; Harris v. The Ark, 810 P.2d 226 (Colo. 1991).
4. Consent.
Consent is an affirmative defense specific to various personal injury and tort claims, including assault and battery claims, false imprisonment claims, defamation claims, and invasion of privacy claims. Where applicable, the defense should be alleged in an answer in order to be preserved. Consent occurs where the plaintiff, by words or conduct, agrees to the actions, contact, or threatened contact by the defendant. Notably, the plaintiff must have been capable of giving consent when it occurred. For example, if consent was obtained under circumstances of fraud or duress, or while the plaintiff was intoxicated, any consent given will be deemed ineffective. See CJI-Civ. 20:11, 22:22 (CLE ed. 2016).
5. Contributory negligence.
Contributory negligence is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Contributory negligence applies to claims where negligence is the underlying basis of the claim. Frequent examples of which include personal injury related claims and product liability claims. Contributory negligence asserts that the plaintiff himself or a designated non-party to the action was also negligent and contributed to or caused the plaintiff’s injuries. Where contributory negligence applies, the amount of damages the defendant is responsible for will be reduced in proportion to the plaintiff’s own negligence and any non-party’s negligence. Notably, if the plaintiff was 50% or more responsible for his own injuries then the defendant will not be liable for any damages. See C.R.S. § 13-21-111; Rodriguez v. Morgan County R.E.A., Inc., 878 P.2d 77 (Colo. App. 1994).
6. Defense of real or personal property.
Defense of real or personal property is an affirmative defense specific to battery claims and false imprisonment claims. Where applicable, the defense should be alleged in an answer in order to be preserved. Defense of real or personal property is applicable where the plaintiff was trespassing on the defendant’s real property or interfering with the defendant’s use of personal property, the defendant demanded that the plaintiff leave or otherwise stop interfering with the defendant’s property, the plaintiff was given a reasonable opportunity to comply but failed to do so, and the defendant subsequently used force in making the plaintiff comply. Notably, the amount of force used in making the plaintiff comply must have been reasonable in order for the defense to be preserved. See CJI-Civ. 20:15, 20:16, 20:17, 21:9 (CLE ed. 2016).
7. Failure to sufficiently plead fraud or mistake with particularity.
Failure to sufficiently plead fraud or mistake with particularity stems from a specific pleading requirement enumerated under C.R.C.P. 9(b). It can be asserted in an answer as well as by filing a motion to dismiss before filing an answer. Under C.R.C.P. 9(b), any asserted claims or affirmative defenses based on mistake or fraud must specifically state the circumstances giving rise to the mistake or fraud; general assertions are insufficient. Accordingly, where a plaintiff fails to sufficiently plead fraud or mistake allegations with particularity, any associated claims or defenses will be dismissed. See Silver v. Colorado Cas. Ins. Co., 219 P.3d 324 (Colo. App. 2009).
8. Injury by fellow servant.
Injury be fellow servant is a specific affirmative defense enumerated in C.R.C.P. 8(c) and, where applicable, should be alleged in an answer in order to be preserved. Injury by fellow servant applies in scenarios when one employee is injured solely by the negligent, reckless, or intentional conduct of another employee. In such circumstances, the employer is relieved of liability to the injured employee and the injured employee’s sole remedy is against the other employee in an individual capacity. From a practical perspective, the injury by fellow servant affirmative defense is rarely used today as workers’ compensation laws have effectively nullified the rule. See Jacobson v. Doan, 319 P.2d 975 (Colo. 1957).
9. Intervening cause.
Intervening cause is an affirmative defense specific to tort claims and, where applicable, should be alleged in an answer in order to be preserved. Intervening cause most commonly applies to negligence claims and absolves a defendant of liability if an intervening cause that was not reasonably foreseeable cause the plaintiff’s injuries. Notably, intervening cause is not a defense to strict liability claims. See White v. Caterpillar, 867 P.2d 100 (Colo. App. 1993).
10. Misuse of product.
Misuse of product is an affirmative defense specific to product liability claims and, where applicable, should be alleged in an answer in order to be preserved. Misuse of product negates a product liability claim where the product was used in a manner other than that which was intended, the unintended use could not reasonably have been expected by the manufacturer; and the unintended use, rather than a defect, resulted in the plaintiff’s injuries. See Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992).
11. Negligence per se.
Negligence per se is an affirmative defense specific to tort claims and, where applicable, should be alleged in an answer in order to be preserved. An affirmative defense of negligence per se relieves a defendant of liability where the plaintiff violated a regulation pertaining to the defendant’s conduct and that violation caused the plaintiff’s injuries. See White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993).
12. Nonuse of safety belt.
Nonuse of safety belt is an affirmative defense specific to personal injury claims where a safety belt was available to the plaintiff and, if used, would have helped prevent injuries the plaintiff sustained. Where applicable, a nonuse of safety belt affirmative defense should be alleged in an answer in order to be preserved. Where a plaintiff failed to use an available safety belt, the defense prohibits the plaintiff from being awarded noneconomic damages suffered as a result of failing to use the device. A nonuse of safety belt defense is similar to the general defense of mitigating circumstances for damages. See C.R.S. § 42-4-237(2); Carlson v. Ferris, 85 P.3d 504 (Colo. 2003).
13. Privilege in relation to an interference with contract or prospective business advantage claim.
Privilege in relation to an interference with contract or prospective business advantage claim is an affirmative defense specific to interference with contract claims and prospective business advantage claims. Where applicable, the defense should be alleged in an answer in order to be preserved. While various privileges exist with respect to these types of claims, the most common privilege asserted is the business competition privilege which negates liability where the contract at issue was an at will contract and the defendant did not use improper means, such as theft, conversion, or fraud, to incentivize a party to breach the contract. See Harris Group, Inc. v. Robinson, 209 P.3d 1188 (Colo. 2009).
14. Privilege in relation to an invasion of privacy claim.
Privilege in relation to an invasion of privacy claim is an affirmative defense specific to invasion of privacy claims and, where applicable, should be alleged in an answer in order to be preserved. Various privileges exist with respect to invasion of privacy claims. Among them is the newsworthy or of public concern privilege where, if information is important enough to the public that it should be disclosed, its disclosure is immune from an invasion of privacy claim. Additionally, other privileges that are applicable to defamation claims will also likely be applicable to invasion of privacy claims. See Joe Dickerson & Assoc., LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
15. Privilege of any person to arrest without a warrant.
Privilege of any person to arrest without a warrant is an affirmative defense specific to false imprisonment claims and, where applicable, should be alleged in an answer in order to be preserved. The defense of privilege of any person to arrest without a warrant is applicable where the plaintiff was committing a crime in the presence of the defendant or was engaging in actions knowing that those actions would cause the defendant to believe the plaintiff was committing a crime, and the defendant subsequently detained or arrested the plaintiff without a warrant. See CJI-Civ. 21:10, 21:11 (CLE ed. 2016).
16. Risk of an unavoidably unsafe product.
Risk of an unavoidably unsafe product is an affirmative defense specific to product liability claims and, where applicable, should be alleged in an answer in order to be preserved. Risk of an unavoidably negates product liability for a defendant where the sale and use of the product provided a benefit to users that greatly outweighed the risk of its use; the risk could not have been avoided by employing the highest standards of scientific and technical knowledge known at the time; the benefit to the users could not have been achieved in another, less risky manner; and the product contained adequate warnings regarding the risk of the product. See Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo. 1983).
17. Self-defense and defense of person.
Self-defense and defense of person are affirmative defenses to assault and battery claims and, where applicable, should be alleged in an answer in order to be preserved. The defenses of self-defense and defense of person are applicable where the defendant reasonably believed that the use of force was necessary to protect either himself or another person from injury by the plaintiff. Notably, the amount of force used by the defendant must be reasonable in relation to the perceived threat. That is, deadly force may not be used unless the defendant reasonably believed the plaintiff’s actions would result in death or serious bodily injury. Self-defense is also an affirmative defense to assault claims in criminal cases as well. See Valdez v. City & County of Denver, 764 P.2d 393 (Colo. App. 1988); CJI-Civ. 20:11 (CLE ed. 2016).
18. Statutory or common law privilege to detain for investigation.
Statutory or common law privilege to detain for investigation is an affirmative defense specific to false imprisonment claims and, where applicable, should be alleged in an answer in order to be preserved. A statutory or common law privilege to detain for investigation defense is applicable where a defendant was a peace officer, an owner, or employee of a business; the defendant detained the plaintiff for suspected theft but acted in good faith and with probable cause in doing so; and the detention and investigation of the defendant was done in a reasonable manner. See C.R.S. § 18-4-407; Gonzales v. Harris, 528 P.2d 259 (Colo. 1974); CJI-Civ. 21:8 (CLE ed. 2016).
19. Substantial truth.
Substantial truth is an affirmative defense specific to defamation claims and, where applicable, should be alleged in an answer in order to be preserved. Substantial truth negates a defamation claim where the alleged defamatory statement is proven by the defendant to be substantially true. Notably, under a substantial truth defense, not every word of the statement is required to be true but, instead, only the substance or gist of the statement needs to be true. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).
20. Unreasonable, knowing use of defective product or product not in compliance with warranty.
Unreasonable, knowing use of defective produce or product not in compliance with warranty is an affirmative defense specific to product liability claims and, where applicable, should be alleged in an answer in order to be preserved. A plaintiff’s use of a defective product or product not in compliance with its warranty negates a product liability claim where the plaintiff had knowledge of the product defect or warranty noncompliance, proceeded to voluntarily and unreasonably use the product, and the use of the product resulted in injuries to the plaintiff. See White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993).
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.