affirmative defense in Minnesota

2016E.g., Rehberger v. Project Plumbing Co., 295 Minn. 577, 578 , 205 N.W.2d 126, 127 (1973) (noting that the failure to plead an affirmative defense, such as the statute of limitations, constitutes a waiver of that defense).1 The majority reaches the opposite conclusion based on Supreme Court habeas cases.

2016E.g., Rehberger v. Project Plumbing Co., 295 Minn. 577, 578 , 205 N.W.2d 126, 127 (1973) (noting that the failure to plead an affirmative defense, such as the statute of limitations, constitutes a waiver of that defense).1 The majority reaches the opposite conclusion based on Supreme Court habeas cases.

2016“An affirmative defense must be pleaded specifically and the failure to do so results in a waiver of the defense.” Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 621 (Minn. App. 2000).

2015“An affirmative defense must be pleaded specifically and the failure to do so results in a waiver of the defense.” Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 621 (Minn. App. 2000) (emphasis added).

2015A defendant seeking to apply the two-year statute of limitations, which is an affirmative defense, “bears the burden of establishing that the claims are time-barred as a matter of law.” Nolan, 673 N.W.2d at 495 (citing Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988)).

2006See Thiele v. Stick, 425 N.W.2d 580, 583 (Minn.1988).

2019Daly v. McFarland , 812 N.W.2d 113 , 120-21 (Minn. 2012) ; Springrose , 192 N.W.2d at 827 (explaining that primary assumption of risk "is not ... an affirmative defense").

1981It is not, therefore, an affirmative defense.” Id. at 24 , 192 N.W.2d at 827 .

2015Benson then informed Cedarblade that appellant had another emotional outburst in front of two patients who were waiting in the lobby, in which appellant yelled at her and exclaimed that “nobody tells her anything” and that she “never knows anything that’s 1 The Faragher/Ellerth defense set forth in Faragher v. Boca Raton, 524 U.S. 775 , 807- 08, 118 S. Ct. 2275, 2293 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 , 118 S. Ct. 2257, 2270 (1998), was adopted by the Minnesota Supreme Court in Frieler v. Carlson Marketing Grp., Inc., 751 N.W.2d 558, 568 (Minn. 2008), and is avai

2015Benson then informed Cedarblade that appellant had another emotional outburst in front of two patients who were waiting in the lobby, in which appellant yelled at her and exclaimed that “nobody tells her anything” and that she “never knows anything that’s 1 The Faragher/Ellerth defense set forth in Faragher v. Boca Raton, 524 U.S. 775 , 807- 08, 118 S. Ct. 2275, 2293 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 , 118 S. Ct. 2257, 2270 (1998), was adopted by the Minnesota Supreme Court in Frieler v. Carlson Marketing Grp., Inc., 751 N.W.2d 558, 568 (Minn. 2008), and is avai

1997P. 8.03); but see Elwood v. County of Rice, 423 N.W.2d 671, 674 (Minn.1988) (referring to qualified immunity as affirmative defenses); Peterson v. Knutson, 305 Minn. 53, 60 , 233 N.W.2d 716, 720 (1975) (referring to qualified immunity as an affirmative defense).

1993Judge Murphy also found that no person was responsible for the “efficient delivery of health care,” id. at 950 , and that no one accepted any “ultimate responsibility for directing the effort at controlling tuberculosis.” Id. at 957-58 . 1 Public officials are entitled to the affirmative defense of qualified immunity unless “the officials’ conduct violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Elwood v. County of Rice, 423 N.W.2d 671, 674-75 (Minn.1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 ,

2019Third, the clause could be interpreted as "an affirmative defense, requiring the defendant to go forward with evidence raising the defense and shoulder the persuasion burden of establishing such defense by a preponderance of the evidence." Id.

1995In State v. Brechon, we noted that claim of right in a trespass case could be considered "as an ordinary defense, requiring the defendant to present evidence, with the burden of persuasion on the prosecution to disprove the defense beyond a reasonable doubt; or * * * as an affirmative defense, requiring the defendant to go forward with evidence raising the defense and shoulder the persuasion burden of establishing such defense by a preponderance of the evidence.” 352 N.W.2d 745, 749 (Minn.1984) (emphasis added) (citing 1 'Wharton’s Criminal Law § 39 (C.

2005The Minnesota Supreme Court’in Snyder v. City of Minneapolis, outlined criteria for determining whether a defense should be considered an affirmative defense. 441 N.W.2d 781, 788 (Minn.1989).

2005The Snyder court quoted the following from Wright & Miller to explain-why the fairness concept is key to requiring that an affirmative defense be specially pleaded: “[A]ll or most of the relevant information on a particular element of a claim is within the control of one party or that one party has a unique nexus with the issue'in question and therefore that party should bear the burden of affirmatively raising the matter.” Id. (quotation omitted).

1989Swanson v. Domning, 251 Minn. 110, 119 , 86 N.W.2d 716, 723 (1957); Universal Lending Corp. v. Wirth Companies, Inc., 392 N.W.2d 322, 325 (Minn.Ct.App.1986).

1989Swanson v. Domning, 251 Minn. 110, 119 , 86 N.W.2d 716, 723 (1957); Universal Lending Corp. v. Wirth Companies, Inc., 392 N.W.2d 322, 325 (Minn.Ct.App.1986).

2016See id. (“A failure to plead an affirmative defense, without later amendment of the pleading, waives the defense.”).

2013See Carlton v. State, 816 N.W.2d 590, 606-07 (Minn.2012) (considering other issues presented on appeal after concluding that the limitations period in Minn.Stat. § 590.01, subd. 4(c), does not present a jurisdictional bar).

2015Benson then informed Cedarblade that appellant had another emotional outburst in front of two patients who were waiting in the lobby, in which appellant yelled at her and exclaimed that “nobody tells her anything” and that she “never knows anything that’s 1 The Faragher/Ellerth defense set forth in Faragher v. Boca Raton, 524 U.S. 775 , 807- 08, 118 S. Ct. 2275, 2293 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 , 118 S. Ct. 2257, 2270 (1998), was adopted by the Minnesota Supreme Court in Frieler v. Carlson Marketing Grp., Inc., 751 N.W.2d 558, 568 (Minn. 2008), and is avai

2015Benson then informed Cedarblade that appellant had another emotional outburst in front of two patients who were waiting in the lobby, in which appellant yelled at her and exclaimed that “nobody tells her anything” and that she “never knows anything that’s 1 The Faragher/Ellerth defense set forth in Faragher v. Boca Raton, 524 U.S. 775 , 807- 08, 118 S. Ct. 2275, 2293 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 , 118 S. Ct. 2257, 2270 (1998), was adopted by the Minnesota Supreme Court in Frieler v. Carlson Marketing Grp., Inc., 751 N.W.2d 558, 568 (Minn. 2008), and is avai

2011See 715 N.W.2d at 443-44 (stating that with respect to the waiver of the right to a jury trial, “our court rules require an affirmative waiver, i.e., one that is expressly made and supported by a demonstration that it is knowing, voluntary, and intelligent” and that, based on our well-settled law, the waiver of a right to a jury trial is subject to an "affirmative requirement that it be express”).

2007Vance now argues that under State v. Osborne, 715 N.W.2d 436 (Minn.2006), we should apply a harmless error standard of review because the failure to instruct the jury on an element of the offense is tantamount to the denial of the right to a jury trial on that element, which right cannot be forfeited by silence, but only by an affirmative waiver under Minn. R.Crim.

2026Health Plan, Inc., 753 N.W.2d 711, 716 (Minn. 2008)).

2025We began by noting that the statute of limitations is an affirmative defense and explained that “the party asserting [an affirmative] defense has the burden of establishing each of [its] elements.” Id. at 716 .

2025P. 8.03 (identifying “release” as an affirmative defense); Karnes v. Quality Pork Processors, 532 N.W.2d 560, 563 (Minn. 1995) (“A release is an affirmative defense to a cause of action . . . .”).

2008The supreme court stated this principle again in Karnes when it first stated that "[a] release or covenant not to sue is an agreement not to enforce an existing cause of action against the party to the agreement” and then stated that "[a] release is an affirmative defense to a cause of action.” 532 N.W.2d at 562-63 .

2017Kramer, 668 N.W.2d at 37 .

2016See generally State v. Kramer, 668 N.W.2d 32 (Minn.App.2003) (discussing the affirmative mistake-of-age defense to third-degree criminal sexual conduct), review denied (Minn. Nov. 18, 2003).- As with any affirmative defense, to receive a jury instruction and have an opportunity to assert the defense, the defendant must-meet a burden of production, by making a prima facie showing that the defense applies.

2026P. 12.02, “[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading.” A party “waives an affirmative defense if it is not included in a responsive pleading.” Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004).

2024P. 12.02 (stating that “[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading”); Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004) (“[A] party waives an affirmative defense if it is not included in a responsive pleading.”); Minn.-Iowa Telev.

2026See, e.g., Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014) (explaining that because a complaint “need not anticipate or overcome” an affirmative defense, “a complaint does not fail to state a claim simply because it omits facts that would defeat a statute of limitations defense”).

2025Nguyen v. Lawson, 257 N.E.3d 157, 163 (Ohio 2025) (“[W]e have held that an affirmative defense may properly be raised in a motion to dismiss but only if the complaint and the materials incorporated into it show conclusively that the defense applies.”); Spann v. Davis, 866 S.E.2d 371, 374 (Ga. 2021) (“[A]lthough the complaint need not anticipate affirmative defenses, if the allegations on the face of the pleadings support the defense as a matter of law and show that the claimant would not be entitled to relief, the trial court is authorized to dismiss for failure to state a claim.”). 7 See, e.g

2016“Waiver has historically been an affirmative defense to an eviction action.” Oak Glen of Edina v. Brewington, 642 N.W.2d 481, 486 (Minn. App. 2002).

2003Oak Glen of Edina v. Brewington, 642 N.W.2d 481, 486 (Minn.App.2002) (“Waiver has historically been an affirmative defense to an unlawful de-tainer action.”).

2013Safety, 406 N.W.2d 333 (Minn.App.1987), this court permitted the driver in an implied-consent case to raise the affirmative defense of post-accident alcohol consumption.

2013In Dutcher v. Commissioner of Public Safety, we held that a petitioner can assert post-driving consumption as an affirmative defense to an implied-consent revocation. 406 N.W.2d 333, 336 (Minn.App.1987).

2015Vacated and remanded. 5 Although the burden is on the employee to prove that he is entitled to benefits, Fischer v. Saga Corp., 463 N.W.2d 501, 501 (Minn. 1990), the burden is on the employer to prove the affirmative defense of collateral estoppel, City of Byron, 255 N.W.2d at 228 . 6 Mach did not directly argue to our court that his condition had changed since the hearing on his 2010 claim.

2015Although the burden is on the employee to prove that he is entitled to benefits, Fischer v. Saga Corp., 463 N.W.2d 501, 501 (Minn.1990), the burden is on the employer to prove the affirmative defense of collateral estoppel, City of Byron, 255 N.W.2d at 228 . .Mach did not directly argue to our court that his condition had changed since the hearing on his 2010 claim.

2008Finally, we said in Paige that a permit holder could avoid prosecution for carrying a firearm in public by presenting a valid permit and identification to police. 256 N.W.2d at 303 . 8 In the 2003 amendments, the legislature specifically included this affirmative defense in the statute.

1999The supreme court has held that having a valid permit is an affirmative defense for which the defendant has a burden “to come forward with some evidence of a permit.” State v. Paige, 256 N.W.2d 298, 304 (Minn.1977).

2003Conversely, the burden to prove an affirmative defense may remain with the defendant where the mitigating circumstances do not negate an element of the offense. “[OJnce the state proves each element of the crime beyond a reasonable doubt, it may impose on the defendant the burden of proving by a preponderance of the evidence that his or her conduct should be excused by some mitigating circumstances or issues.” Myrland, 644 N.W.2d at 850 (citing Hage, 595 N.W.2d at 207 ); Patterson, 432 U.S. at 209 , 97 S.Ct. at 2326 (stating that, if the state recognizes a mitigating factor, it “may assure its

2003Conversely, the burden to prove an affirmative defense may remain with the defendant where the mitigating circumstances do not negate an element of the offense. “[OJnce the state proves each element of the crime beyond a reasonable doubt, it may impose on the defendant the burden of proving by a preponderance of the evidence that his or her conduct should be excused by some mitigating circumstances or issues.” Myrland, 644 N.W.2d at 850 (citing Hage, 595 N.W.2d at 207 ); Patterson, 432 U.S. at 209 , 97 S.Ct. at 2326 (stating that, if the state recognizes a mitigating factor, it “may assure its

2017Albers v. Fitschen, 274 Minn. 375, 377 , 143 N.W.2d 841, 843 (1966).

2017Albers v. Fitschen, 274 Minn. 375, 377 , 143 N.W.2d 841, 843 (1966).

2016Although in Hosanna-Tabor the United States Supreme Court treated the ecclesiastical abstention doctrine as an affirmative defense on the merits when applied to a state-law tort claim, 132 S. Ct. at 709 n.4, the Minnesota Supreme Court noted that there is “some latitude to decide how the doctrine will be applied in Minnesota courts.” Pfeil, 877 N.W.2d at 535 .

2016The Court resolved a disagreement among federal circuit courts and held that the ministerial exception actually functioned as an affirmative defense on the merits to an “otherwise cognizable” claim under a federal statute. — U.S. at —, 132 S.Ct. at 709 n. 4 (“We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.

2016Vang also cites State v. Johnson as support for his argument that a reasonable refusal defense is available under the criminal test-refusal statute. 672 N.W.2d 235 (Minn. App. 2003), review denied (Minn. Mar. 16, 2014).

2016In Johnson, this court considered whether the district court committed plain error by including a potentially confusing example of what reasonable refusal might look like in a jury instruction on the affirmative defense of reasonable refusal. 672 N.W.2d at 242 .