An affirmative defense is a response in a civil lawsuit that, if proven, defeats or reduces a plaintiff’s claim even when the facts the plaintiff alleges are true. Rather than simply denying the allegations, a defendant raising an affirmative defense introduces new matter that excuses or bars liability. This guide explains how affirmative defenses function under Georgia law, which defenses Georgia identifies by statute, when they must be raised, and how the burden of proof operates.
What Distinguishes an Affirmative Defense
A civil defendant can respond to a complaint in two broad ways. The defendant can deny the plaintiff’s factual allegations, which puts the plaintiff to the task of proving the claim. Or the defendant can raise an affirmative defense, which accepts the basic allegations for purposes of argument but asserts a separate reason the plaintiff still cannot recover.
The classic illustration is the statute of limitations. A defendant raising that defense is not necessarily disputing that an injury occurred or that the defendant caused it. The defendant is asserting that the plaintiff filed the lawsuit too late, so the claim is barred regardless of its underlying merit.
Because an affirmative defense introduces new matter, the defendant generally bears the burden of pleading and proving it. This shifts a measure of responsibility onto the defendant rather than leaving everything for the plaintiff to establish.
Affirmative Defenses Listed in the Georgia Civil Practice Act
Georgia’s Civil Practice Act addresses affirmative defenses in O.C.G.A. § 9-11-8(c). That subsection states that, in pleading to a preceding pleading, a party shall set forth affirmatively a list of specified defenses.
The defenses named in O.C.G.A. § 9-11-8(c) include accord and satisfaction, arbitration and award, 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.
The statute also provides that when a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court treats the pleading as if it had been correctly designated, in the interest of justice.
This list is not the entire universe of defenses available in Georgia civil litigation. Other defenses, including assumption of risk and comparative negligence in tort cases, function as affirmative matter as well. The statutory list identifies the defenses that the rule specifically directs to be pleaded affirmatively.
When an Affirmative Defense Must Be Raised
Timing is central to affirmative defenses. The general rule is that an affirmative defense listed in O.C.G.A. § 9-11-8(c) should be raised in the defendant’s answer. A defendant who fails to plead such a defense risks having it treated as waived.
Georgia courts have explained that this rule is not as rigid as it might first appear. The Court of Appeals has recognized that an affirmative defense listed in O.C.G.A. § 9-11-8(c) may be asserted for the first time in a motion for summary judgment. More broadly, where a defense is raised by motion, by a special plea in connection with the answer, or by a motion for summary judgment, courts have held that there is no waiver.
Defenses that are not on the statutory list, whether affirmative in nature or otherwise, are subject to even more flexible treatment. Such defenses need not be asserted in the answer and may be raised later, including in a motion or at trial.
The safest course in practice is for a defendant to plead known affirmative defenses early, because pleading them in the answer removes any question about waiver. Pleadings can also generally be amended, and Georgia law allows amendment of pleadings to add a defense in appropriate circumstances.
The Burden of Proof on Affirmative Defenses
When a defendant raises an affirmative defense, the defendant ordinarily must prove it. The plaintiff still carries the burden of proving the elements of the underlying claim, but the defendant must come forward with evidence supporting the defense.
This allocation has practical consequences during litigation. On a motion for summary judgment, a defendant relying on an affirmative defense generally must show that the undisputed facts establish the defense. At trial, the trier of fact considers the defense alongside the claim, and the jury may be instructed on which party bears the burden on each issue.
Common Affirmative Defenses in Personal Injury Cases
In Georgia personal injury litigation, several affirmative defenses appear regularly.
The statute of limitations is among the most significant. Most personal injury actions in Georgia are governed by a two-year limitation period under O.C.G.A. § 9-3-33, and a defendant may assert that the plaintiff filed after that period expired.
Release is another. If the parties previously settled a claim and the plaintiff signed a release, a defendant may assert that the release bars further recovery for the same matter.
Accord and satisfaction, payment, and res judicata can also arise where there has been a prior resolution or a prior judgment involving the same dispute.
Beyond the statutory list, comparative negligence and assumption of risk function as affirmative matter in negligence cases, allowing a defendant to argue that the plaintiff’s own conduct reduces or bars recovery.
Why Affirmative Defenses Matter to the Structure of a Case
Affirmative defenses shape litigation in important ways. They can resolve a case without any examination of the underlying facts of the injury, as when a limitations defense ends a claim that was filed too late. They also define what each side must prove, because the burden on an affirmative defense rests with the defendant. Identifying and pleading affirmative defenses correctly is therefore a basic feature of how Georgia civil cases are framed and decided.
Summary
An affirmative defense allows a defendant to defeat or limit a plaintiff’s claim by introducing new matter, even when the plaintiff’s allegations are accepted as true. O.C.G.A. § 9-11-8(c) lists defenses that must be pleaded affirmatively, including statute of limitations, release, res judicata, and waiver. Georgia courts generally expect these defenses in the answer but have allowed them to be raised later through motions, including motions for summary judgment, without automatic waiver. The defendant ordinarily bears the burden of proving an affirmative defense.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
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