A defendant is not confined to denials of the allegations of the complaint or petition, but is entitled to set out new matter in defense or as a basis for affirmative relief. In a suit in which plaintiff alleges that defendant has been negligent, contributory negligence by the plaintiff is sometimes a defense which a defendant can raise.
This form is a generic example of an answer and affirmative defense that may be referred to when preparing such a pleading for your particular state.
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When a defendant alleges comparative or contributory negligence as an affirmative defense, he is claiming that the plaintiff did something to cause the wreck. Sometimes it is hard to determine who is at fault after an auto accident.
The Court adopted the ?pure form? of comparative negligence as the law in Illinois. Any contributory negligence chargeable to a plaintiff diminishes proportionately the amount awarded as compensatory damages, but no longer entirely bars recovery.
A reply to affirmative defenses generally contains the following elements, in this order: ? A caption ? Denials and admissions of the allegations of the affirmative defenses ? Signature of the plaintiff's attorney (or the plaintiff, if unrepresented) When drafting the reply, be sure to address each allegation of the ...
Practitioners need to also remember that if a party files an affirmative answer, the opposing party must file a reply, or the affirmative defenses will be deemed admitted. 735 ILCS 5/2-602.
Salomon, 2011 IL App (1st) 110851, ¶¶34 ? 38 (A ?set-off? is a counterclaim; not an affirmative defense since the set-off defendant/counter-plaintiff seeks affirmative monetary relief against the plaintiff/counter-defendant.)
Examples of affirmative defenses include: Contributory negligence, which reduces a defendant's civil liability when the plaintiff's own negligence contributed to the plaintiff's injury.
Most affirmative defenses must be pleaded in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them.
Courts prefer the defence of contributory negligence because it enables them to apportion damages between the parties, thus allowing the plaintiff to recover something, even in cases where the plaintiff bears a very significant share of responsibility for the harm suffered.
(d) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, that an instrument or ...
