When someone is being sued, there are some affirmative defenses that may apply to the situation. It may be possible for these affirmative defenses to damage or completely defeat the lawsuit.
You should always consult with an attorney in your jurisdiction to see your best options of getting legal representation. These are from California and some of them might only apply in Federal court.
Affirmative defenses are used by defendants in legal matters to usually defeat the lawsuit brought against them by the Plaintiff. There are a list of affirmative defenses including:
Here is a list of possible tort affirmative defenses:
- Manufacturing/Labeling/Marketing in Conformity with the State of the Art At the Time
- Insanity
- No Private Right of Action
- Statute of Frauds
- Filed Rate Doctrine
- Arbitration and Award
- Implied Repeal of Statute
- Failure to State a Claim Upon Which Relief Can Be Granted
- Election of Remedies
- Breach of Contract
- Equitable Tolling
- Undue Influence
- Breach of Implied Warranty
- Reservation of Right to Add Additional Affirmative Defenses
- Punitive Damages Not Permissible
- Conditions Precedent
- Suicide
- Breach of Express Warranty
- Prior Pending Action
- Retraction
- Charitable Immunity
- Prevention of Performance
- Laches
- Statutory Compliance
- Default By Plaintiff
- Lack of Consideration
- Consent (i.e. Express, Implied)
- Mistake
- Reasonable Accommodation
- Offset
- Exemption
- Noerr-Pennington Doctrine
- License
- Truth
- Impossibility
- Lack of Causation
- At-Will Employment
- Prevented Injury
- Cardinal Change
- Bankruptcy Discharge
- False Claims
- Failure to Serve
- Failure to Take Advantage of Effective System to Report/stop Harassment (i.e. Faragher-Ellerth Doctrine)
- Acquiescence
- Real Party in Interest
- Immunity
- Failure of Consideration
- Contributory Negligence
- Peril of the Sea
- Learned Intermediary Doctrine
- Fleeting and Incidental Use
- Statutory Immunity
- Improper Venue
- Intervening Cause
- Complete Performance
- No Actual Injury
- Necessity
- Assumption of Risk
- Supervening Cause
- No Damages
- Contribution
- Business Judgement Rule
- Same Decision Defense
- Failure to Join an Indispensable Party
- Adequate Warning
- Unclean Hands
- Lack of Causal Relationship
- Act of God
- Truth in Lending Recoupmet
- Product Provides Net Benefits for a Class of Patients
- Comparative Fault of Third Parties
- Undue Burden
- Sovereign Immunity
- Failure to Preserve Confidentiality
- Adverse Possession
- Joint Venture
- Circuitry of Action
- Cancellation of Contract
- Lack of Privity
- Failing to Plead Fraud with Particularity
- Misuse of Product
- Improper Service
- Execution of Public Duty
- Discharge in Bankruptcy
- Res Judicata
- Unjust Enrichment
- Doe Defendant Is Liable
- Termination of Employment
- Statute of Limitations
- Estoppel
- Self Defense
- Failure to Perform
- Speculative Damages
- Indemnification
- Fraud
- Good Faith By Answering Defendant
- Lack of Consent
- Merger Doctrine
- Ignorance of the Law
- No Adequate Remedy At Law
- Failure to Act in a Commercially Reasonable Manner
- Mutual Mistake of Fact
- Breach of Confidentiality Agreement
- Release (i.e. Express, Implied, or Equitable Release of Rights)
- Parol Evidence Rule
- No Government Action
- Economic Loss Rule
- Attorney Fees Are Not Recoverable
- Bona Fide Purchaser for Value
- Payment
- Contrary to Public Policy
- Borrowed Servant
- Duress
- Unconscionability
- Force Majeure
- Safety of Employee
- Lack of Standing
- Restraint of Trade
- Anticipatory Breach
- Collateral Source Rule
- Failure of Condition Precedent
- Claim of Right
- Mutual Acquiescence in Boundary
- Waiver
- Rejection of Goods
- Discharge
- No Reliance
- Doctrine of Primary or Exclusive Jurisdiction
- Prevention and Frustration (defendant Was Ready, Willing and Able to Perform the Contract, and Plaintiff Prevented and Frustrated Such Performance)
- Improper Notice of Breach
- Hindrance of Contract
- Failure to Exhaust Administrative Remedies
- Good Faith
- Justification
- Revocation of Acceptance of Goods
- Unconstitutional
- Sole Negligence of Co-Defendant
- Election of Parties
- Accord and Satisfaction
- Anticipatory Repudiation
- Mutual Mistake
- Product Was Unavoidably Unsafe
- No Privity
- Misnomer of Parties
- Damages Were the Result of Unrelated, Pre-Existing, or Subsequent Conditions Unrelated to Defendant’s Conduct
- Frustration of Purpose
- Equitable Estoppel
- Ratification
- Assumption of the Risk
- Wrong Party
- Failure to Mitigate Damages
- Novation
- Adhesion
- Innocent Infringement
- Claimants Own Conduct, or By the Conduct of Its Agents, Representatives, and Consultants
- Illegality
- Free Speech
- Injury By Fellow Servant
- Alteration of Product
- Privilege
- Recoupment
- Preemption
- Set Off
- Fraud in the Inducement
- Agency
- Lack of Authority
- Fair Use
- Sophisticated User Doctrine
- No Evidence That Modified Warning Would Have Been Followed or Would Have
- Usury
- Abandonment of Trademark
- Statutory Defenses Prerequisites
- Breach By Plaintiff
- Lack of Equity
- Spoliation of Evidence
Attorney Jimmy Hanaie | California civil litigation attorney |
(800) 400-5050 | Free Consultation 24/7 |
Plaintiff side attorney | Let’s talk about your case. |
Be very careful in using this list of tort affirmative defenses. You should always consult with an attorney in your Jurisdction.
These tort affirmative defenses change often and some of them may only apply in Federal court in California.
This may not be an exhaustive list and is for informational purposes only.