Affirmative Defense

Definition

An affirmative defense is a legal argument raised by the defendant that, even if all the plaintiff’s allegations are true, there are additional facts or circumstances that excuse the defendant from liability or reduce their responsibility. Rather than simply denying wrongdoing, an affirmative defense introduces new information that could defeat or diminish your claim. The defendant bears the burden of proving an affirmative defense.

How It’s Used in Personal Injury Cases

Insurance companies and defense attorneys commonly raise affirmative defenses to reduce or eliminate their liability. The most frequently used affirmative defense in Texas personal injury cases is comparative negligence—the argument that you, the injured party, were partially or equally at fault for the accident. Other common affirmative defenses include assumption of risk (you knowingly engaged in a dangerous activity), statute of limitations (you waited too long to file your claim), and pre-existing conditions (your injuries existed before the accident). Defense attorneys strategically deploy these defenses to minimize settlement offers and jury awards.

Practical Example

A pedestrian is crossing the street when struck by a vehicle. The defendant admits to hitting the pedestrian but raises comparative negligence as an affirmative defense, arguing the pedestrian was crossing against the light and was therefore partially responsible for the collision. Under Texas’s modified comparative fault system, if the jury finds the pedestrian 51% or more at fault, they recover nothing. Even if found less than 51% at fault, their damages are reduced by their percentage of responsibility. The defense uses this affirmative defense to argue for a dramatically reduced settlement or verdict.

Why It Matters to Your Case

Affirmative defenses can significantly reduce or completely eliminate your recovery. Insurance adjusters and defense attorneys are skilled at turning even minor evidence of your own negligence into arguments that you were 50% or more at fault. Understanding which affirmative defenses may apply to your case helps you prepare evidence to counter them. Texas follows a modified comparative fault rule under Civil Practice and Remedies Code Chapter 33, meaning your recovery is barred entirely if you are found 51% or more responsible for your injuries.

Key Takeaway

An affirmative defense is a legal strategy defendants use to avoid or reduce liability even when they admit the basic facts of your case. Being prepared to counter affirmative defenses like comparative negligence is essential to protecting the full value of your claim.