Understanding Affirmative Defenses in Colorado

What Are Affirmative Defenses?

What is an Affirmative Defense?

“An affirmative defense is a legal argument that a defendant . . . may assert to require the dismissal of a claim or to prevail at trial.” (See Dinosaur Park v. Tello (2008) 192 P.3d 513, 516; State v. Nieto (2000) 993 P.2d 493, 507; see Black's Law Dictionary 451 (8th ed. 2004) [defining affirmative defense as [a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's . . . claim, even if the allegations in the complaint are true].)

“C.R.C.P. 8(c) provides a nonexclusive list of recognized affirmative defenses in Colorado, including ‘accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, [and] waiver.’” (See Bailey v. State Farm Mut. Auto. Ins. Co. (2018) 429 P.3d 109, 113.)

“It is true that C.R.C.P. 8(c) recognizes that some unlisted affirmative defenses may also exist. But, an affirmative defense must be in the nature of confession and avoidance.” (See id; Dinosaur Park v. Tello (2008) 192 P.3d 513; see also People v. Low (1987) 732 P.2d 622, 629 [noting that ‘insanity’ is an affirmative defense because it "admits the commission of the offense but avoids ... criminal responsibility]; Antolovich v. Brown Grp. Retail, Inc. (2007) 183 P.3d 582, 600 [explaining that advice of counsel is an affirmative defense to malicious prosecution because it basically admits the doing of the act ... but seeks to justify, excuse, or mitigate it]; People v. Huckleberry (1989) 768 P.2d 1235, 1238.)

“By its nature, an affirmative defense does not negate the elements of a plaintiff's claim, but instead precludes liability even if all of the elements of a plaintiff's claim are proven.” (See State Farm Mut. Auto. Ins. Co. v. Goddard (2021) 484 P.3d 765, 777; Purzel Video GmbH v. Smoak (2014) 11 F. Supp. 3d 1020, 1031; Soicher v. State Farm Mut. Auto. Ins. Co. (2015) 351 P.3d 559, 564 [an affirmative defense is not merely a denial of an element of a plaintiff's claim, but rather it is a legal argument that a defendant may assert to require the dismissal of a claim, notwithstanding the plaintiff's ability to prove the elements of that claim].)

Burden of Proof for Affirmative Defenses

“In the absence of special circumstances not present here, the burden of proof in a civil action is by a preponderance of the evidence.” (See Western Distributing Co. v. Diodosio (1992) 841 P.2d 1053, 1057-58; § 13-25-127(1), 6A C.R.S. (1987).)

“The burden of proving a prima facie case for recovery on a civil claim is on the plaintiff.” (See id; e.g., Bayly Martin Fay, Inc. v. Pete's Satire, Inc. (1987) 739 P.2d 239, 243; Capital Life Ins. Co. v. Roth (1976) 191 Colo. 289, 291, 553 P.2d 390, 392.)

“The burden of proving an affirmative defense rests upon the defendant asserting the defense.” (See id; Union Supply Co. v. Pust (1978) 196 Colo. 162, 174, 583 P.2d 276, 284; Hickman-Lunbeck Grocery Co. v. Hager (1924) 75 Colo. 554, 559-60, 227 P. 829, 831-32; Fidelity Deposit Co. v. Colorado Ice Storage Co. (1909) 45 Colo. 443, 448-49, 103 P. 383, 385; Thomas v. Carey (1899) 26 Colo. 485, 495, 58 P. 1093, 1097.)

“Once a plaintiff establishes a prima facie case, the defendant may produce evidence to rebut the plaintiff's prima facie case, but the burden of proof or persuasion on the essential elements of the claim remains with the plaintiff.” (See Western Distributing Co. v. Diodosio (1992) 841 P.2d 1053, 1057-58; Judkins v. Carpenter (1975) 189 Colo. 95, 98, 537 P.2d 737, 738.)

Self Defense

“In Colorado, the defense of self-defense is codified in section 18-1-704, C.R.S. (2020), Use of physical force in defense of a person—definitions. Under this statute, a defendant is legally justified in using against another person a degree of nondeadly physical force that he reasonably believes to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by the other person. But the same statute contains four exceptions. If any of the exceptions applies, the defendant is not justified in using physical force.” (See Galvan v. People (2020) 476 P.3d 746, 752-53; § 18-1-704(1); § 18-1-704(3).)

“Self-defense can be an affirmative defense or an element-negating traverse. Unlike a traverse, which simply challenges the existence of an element of the charged offense, an affirmative defense is a complete defense.” (See Galvan v. People (2020) 476 P.3d 746, 753; People v. Pickering (2011) 276 P.3d 553, 555–56; see also Roberts v. People (2017) CO 76, ¶ 19, 399 P.3d 702, 705 [We have generally recognized two types of defenses to criminal charges: (1) affirmative defenses and (2) traverses]; People v. Miller (2005)113 P.3d 743, 750.)

“When a defendant relies on an affirmative defense, he essentially admits the commission of the elements of the charged offense but seeks to justify, excuse, or mitigate his conduct. If the evidence presented properly raises the issue of an affirmative defense, the affirmative defense is treated as an additional element of the charged offense.” (See Galvan v. People (2020) 476 P.3d 746, 753; Roberts v. State (2017) 399 P.3d 702, 705.)

Notable Decisions Discussing Affirmative Defenses

“As a general rule, a defendant has the right to interpose an affirmative defense so long as some credible evidence supports it.” (See People v. Gallegos (2023) 535 P.3d 108, 116; People v. Speer (2011) 255 P.3d 1115, 1119 [It is too well settled to merit further discussion that a trial court is obliged to instruct the jury on a requested affirmative defense if there is any credible evidence ... supporting it]; see also § 18-1-407(1) [stating that, to raise an affirmative defense, the defendant shall present some credible evidence on that issue].)

A “defendant may raise an affirmative defense for the first time in a summary judgment motion where:

the plaintiff did not object to the untimely defense and
the plaintiff was not prejudiced by the delay in raising it.”

(See Tarco, Inc. v. Conifer Metro. Dist. (2013) 316 P.3d 82, 86.)

Dockets for Affirmative Defenses in Colorado

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Jones, Derrick v. Brown, David et al

2 Files

Filed

May 24, 2024

Judge

Hon. Don Jesse Toussaint 👉 Discover key insights by exploring more analytics for Don Jesse Toussaint

Court

Arapahoe County

County

Arapahoe County, CO

Case #