affirmative defense in Illinois

2024“A motion to dismiss, pursuant to section 2-619 of the - 11 - Code, admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). ¶ 39 In its written order dismissing plaintiff’s first amended complaint, the circuit court indicated plaintiff argued the court should treat defendants’ motion to dismiss as filed pursuant to section 2-619 of the Procedure Code because defendants were relying on factual assertions not contained in the first amended complaint.

2023A section 2-619 motion to dismiss “admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).

2025Greer, 122 Ill. 2d at 494 (stating the agency, as defendants-appellants, ultimately bore the burden to plead and prove lack of standing); see Paul, 2018 IL App (2d) 170696, ¶ 10 (“Generally, a plaintiff need not allege facts to establish his or her standing; rather, it is the defendant’s burden to plead and prove a lack of standing.”); Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010) (“Under Illinois law, lack of standing is an affirmative defense, which is the defendant’s burden to plead and prove.”). - 25 - ¶ 72 a.

2025Our supreme court has stated that “ ‘lack of standing in a civil case is an affirmative defense, which will be waived if not raised in a timely fashion in the trial court.’ ” Id. (quoting Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988)).

2025See Lebron, 237 Ill. 2d at 252 (providing that, “[u]nder Illinois law, lack of standing is an affirmative defense, which is the defendant’s burden to plead and prove”).

2025Greer, 122 Ill. 2d at 494 (stating the agency, as defendants-appellants, ultimately bore the burden to plead and prove lack of standing); see Paul, 2018 IL App (2d) 170696, ¶ 10 (“Generally, a plaintiff need not allege facts to establish his or her standing; rather, it is the defendant’s burden to plead and prove a lack of standing.”); Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010) (“Under Illinois law, lack of standing is an affirmative defense, which is the defendant’s burden to plead and prove.”). - 25 - ¶ 72 a.

2026People v. Lee, 213 Ill. 2d 218, 224 (2004). ¶ 23 Defense of others is “an affirmative defense requiring some evidence that (1) unlawful force was threatened against defendant or others, (2) defendant was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) defendant subjectively believed a danger existed requiring the use of force applied, and (6) defendant’s belief was objectively reasonable.” People v. Taylor, 2016 IL App (1st) 141251, ¶ 11 ; see also 720 ILCS 5/7- -6- No. 1-24-0699 1 (West 2022) (“A person is justified in the use of force against a

2026Because defense counsel agreed to the instruction as given, defendant is estopped from raising any claim that the trial court erred in instructing the jury regarding self-defense in the manner that counsel acquiesced. ¶ 58 Defendant also argues that he was deprived of his right to the effective assistance of counsel when defense counsel failed to object to the incomplete self-defense instruction and failed to tender a complete self-defense instruction that included that the use of deadly force is permissible if the - 17 - 2026 IL App (2d) 240714-U defendant reasonably believes the force is nec

2024A motion to dismiss under section 2-619 of the Code of Civil Procedure “admits the legal sufficiency of the complaint, but asserts an affirmative defense or other matter to defeat the plaintiff’s claim.” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003).

2023Determining that it did, we next consider the gravamen of plaintiffs’ appeal, whether the trial court abused its discretion in denying plaintiffs leave to amend the complaint to plead facts sufficient implicate section 2-202 qualified immunity as opposed to section 4-102 absolute immunity. ¶ 14 A. Section 619(a)(9) Dismissal Due to Section 4-102 Absolute Immunity ¶ 15 Under section 2-619(a)(9) of the Code, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or “other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS

2026Jeffries, 164 Ill. 2d at 127-28 . ¶ 47 When a defendant raises the theory of self-defense or defense of person, the State must prove all elements of the underlying offense and disprove the affirmative defense beyond a reasonable doubt.

2026Jeffries, 164 Ill. 2d at 127-28 (defendant must first show evidence of each element of the affirmative defense; defendant’s claim fails where the State negates even one element). ¶ 51 We reject defendant’s argument that the State failed to disprove the affirmative defense “because the reasonableness of [her] belief went unchallenged at trial.” The State was not required - 13 - No. 1-24-1151 to challenge defendant’s belief because Buchanan’s status as the initial aggressor alone defeats the defense.

2023“A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). “[T]he movant is essentially saying ‘ “Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim.” ’ ” Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31 (quoting Winters v. Wangler, 386 Ill

2022“A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). “[T]he movant is essentially saying ‘ “Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim.” ’ ” Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31 (quoting Winters v. Wangler, 386 Ill

2026In People v. Everette, 141 Ill. 2d 147, 157 (1990), this court stated “[i]t is a matter of law whether the defendant has met the evidentiary minimum entitling him to instructions on an affirmative defense.” Matters of law are reviewed under a de novo standard of review.

2026As this court correctly held in People v. Everette, 141 Ill. 2d 147, 157 (1990), “[i]t is a matter of law whether the defendant has met the evidentiary minimum entitling him to instructions on an affirmative defense.” ¶ 92 I.

2025Then, the burden shifts to the plaintiffs, who must establish that the affirmative defense is “ ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). ¶ 29 A section 2-619 motion to dismiss should only be granted if the plaintiffs cannot prove a set of facts that would support the cause of action.

2025Then, the burden shifts to the plaintiff, who must establish that the affirmative defense is “ ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). 9 ¶ 28 A section 2-619 motion to dismiss should only be granted if the plaintiff cannot prove a set of facts that would support the cause of action.

2026The Circuit Court’s Role ¶ 98 In determining whether the defendant has presented some evidence on each element of the affirmative defense, “ ‘it is not the court’s role to weigh the evidence.’ ” Jones, 175 Ill. 2d at 132 (quoting People v. Jones, 276 Ill.

2026Thus, a de novo standard governs the review of the trial court’s determination.” (Internal quotation marks omitted.) McDonald, 2016 IL 118882, ¶ 78-79 (Burke, J., dissenting, joined by Freeman and Kilbride, JJ.). ¶ 96 When a defendant raises an affirmative defense and the record includes some evidence on each element of the affirmative defense, he “is entitled to an instruction on his theory of the case,” and “the issue of whether a defendant should be relieved of criminal liability by reason of his affirmative defense must be determined by the jury with proper instruction as to the applicable

2025Cf. People v. Boclair, 202 Ill.2d 89, 101 (2002) (noting that time limitations in the Act are considered an affirmative defense that can be raised, waived, or forfeited, by the State).With this record, we are compelled to conclude that the proportionate penalties’ claim, raised for the first time on appeal, is barred by section 122-3 of the Act.

2023See People v. Boclair, 202 Ill.2d 89, 101 (2002) (“…time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State.”).

2026Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995) (an affirmative defense “assumes that the defendant would otherwise be liable, if the facts alleged are true, but asserts new matter by which the plaintiff’s apparent right to recovery is defeated”); Instituto Nacional De Comercializacion (Indeca) v. Continental Illinois National Bank & Trust Co., 575 F. Supp. 985, 991 (N.D.

2024See Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995) (An affirmative defense admits the legal sufficiency of the cause of action but asserts new matter by which the plaintiff’s right to recovery is defeated.). ¶ 46 Based on our de novo review of the record, construing the evidence against DrinkHaus and resolving all inferences in plaintiff’s favor, we find that a genuine issue of material fact exists as to whether DrinkHaus owed a duty to plaintiff, and that the attack by Ogundeyi was reasonably foreseeable. ¶ 47 In so holding, this court finds several cases instructive.

2025Then, the burden shifts to the plaintiffs, who must establish that the affirmative defense is “ ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). ¶ 29 A section 2-619 motion to dismiss should only be granted if the plaintiffs cannot prove a set of facts that would support the cause of action.

2025Then, the burden shifts to the plaintiff, who must establish that the affirmative defense is “ ‘unfounded or requires the resolution of an essential element of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997) (quoting Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993)). 9 ¶ 28 A section 2-619 motion to dismiss should only be granted if the plaintiff cannot prove a set of facts that would support the cause of action.

2021Garrido, 2013 IL App (1st) 120466, ¶ 27 ; see also Glisson v. City of Marion, 188 Ill. 2d 211, 222 (1999) (the supreme court refused to adopt additional requirements for standing to avoid 16 confusing the standing doctrine with the merits of the underlying suit). “[W]hen determining whether a particular claim is a SLAPP, [the] analysis must remain focused only on the validity of the plaintiff’s claim [citation], not whether a defendant can escape liability for an otherwise meritorious claim by proving an affirmative defense.” Garrido, 2013 IL App (1st) 120466, ¶ 27 .

2018"Lack of standing is an affirmative defense, which the defendant bears the burden to plead and prove." Id. at 224 , 242 Ill.Dec. 79 , 720 N.E.2d 1034 .

2012A section 2-619 motion for involuntary dismissal “admits the legal sufficiency of the plaintiff’s complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiff’s claim.” Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011).

2012A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint (Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004)), while a section 2-619 motion to dismiss admits the sufficiency of the complaint, but asserts an affirmative defense or other matter that avoids or defeats that claim (Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011)).

2026People v. Sanchez, 2025 IL App (1st) 242015-U, ¶ 34 . “ ‘Although the threshold of evidence required to raise an affirmative defense is low, the defendant bears the burden to satisfy that requirement.’ ” Id. (quoting People v. Kite, 153 Ill. 2d 40, 45 (1992)). ¶ 107 We do not believe the State’s comment here shifted the burden of proof to defendant.

2025“Although the threshold of evidence required to raise an affirmative defense is low, the defendant bears the burden to satisfy that requirement.” People v. Kite, 153 Ill. 2d 40, 45 (1992). ¶ 35 Viewing the entirety of the closing arguments in context, the State’s comment was not improper.

2018Id. ¶ 35 What is sometimes known as the "sole proximate cause defense" or the " 'empty chair' defense" is, in fact, not an affirmative defense at all.

2005See Leonardi, 168 Ill. 2d at 94 (holding that a defendant need not plead sole proximate cause as an affirmative defense).

2025Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004).

2020Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004). ¶ 25 Under Illinois law, lack of standing is an affirmative defense.

2021“Compulsion is an affirmative defense which would exculpate an accused, if the trier of fact believed that the elements of compulsion had been proven.” People v. Pegram, 124 Ill. 2d 166, 172 (1988). ¶ 33 According to the State, compulsion amounts to legal innocence, not factual innocence, and cannot support a colorable claim of actual innocence.

2008Where the State's evidence does not raise the issue of an affirmative defense, the defendant need only "present some evidence thereon" to enlarge the State's burden of proving beyond a reasonable doubt the offense charged to overcoming the evidence supporting the elements of the affirmative defense as well. 720 ILCS 5/3-2 (West 2002); People v. Pegram, 124 Ill. 2d 166, 173 , 529 N.E.2d 506 (1988), quoting Ill.

2026“Thus, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim.” Brock 4 No. 1-25-1155 v. Anderson Road Ass’n, 287 Ill.

2022App. 3d 116, 122 (1997) (find that “the moving party under section 2-619 ‘admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim.’ ” (citing Brock v. Anderson Road Ass’n, 287 Ill.

2021To resolve the issue, our supreme -8- No. 1-19-1714 court looked to People v. Wright, 189 Ill. 2d 1 (1999), which dealt with the same issue in the context of a first stage postconviction proceeding. ¶ 27 The court explained that although the Act requires a defendant to allege facts demonstrating a lack of culpable negligence, the State is not permitted “ ‘to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition.’ ” Pinkonsly, 207 Ill. 2d at 563 (quoting Wright, 189 Ill. 2d at 11 ).

2021To resolve the issue, our supreme -8- No. 1-19-1714 court looked to People v. Wright, 189 Ill. 2d 1 (1999), which dealt with the same issue in the context of a first stage postconviction proceeding. ¶ 27 The court explained that although the Act requires a defendant to allege facts demonstrating a lack of culpable negligence, the State is not permitted “ ‘to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition.’ ” Pinkonsly, 207 Ill. 2d at 563 (quoting Wright, 189 Ill. 2d at 11 ).

2026The court indicated it did so when it stated that “[t]his court has held that where there is some evidence to support an affirmative defense instruction, the trial court’s refusal to instruct the jury constitutes an abuse of discretion even if the evidence is conflicting.” Id.

2026Specifically, the special concurrence finds the following statement from Hari confusing—“ ‘where there is some evidence to support an affirmative defense instruction, the trial court’s refusal to instruct the jury constitutes an abuse of discretion.’ ” Infra ¶ 116 (quoting Hari, 218 Ill. 2d at 296 ).

2025As with other sections of the Act, this provides a public entity with “an affirmative defense, which, if properly raised and proven by the public entity, bars a plaintiff’s right to recovery.” Id. - 17 - 2025 IL App (2d) 240687 ¶ 61 The exception of “willful and wanton conduct” is defined by the Tort Immunity Act: “ ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.

2025As with other sections of the Act, this provides a public entity with “an affirmative defense, which, if properly raised and proven by the public entity, bars a plaintiff’s right to recovery.” Id. ¶ 62 The exception of “willful and wanton conduct” is defined by the Act: “ ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.

2023See Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 24 (“Once a plaintiff has filed a complaint, a defendant may raise the plaintiff’s lack of standing as an affirmative defense.”) and Adeyiga, 2014 IL App (1st) 131252, ¶¶ 59, 63-64 (rejecting plaintiff’s contention that defendants waived their argument that plaintiff lacked standing where the issue of standing was pled as an affirmative defense in answer).

2019Taitt argues that Chase “is not the mortgagee as it claims to be.” ¶ 32 “Once a plaintiff has filed a complaint, a defendant may raise the plaintiff’s lack of standing as an affirmative defense.” Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 24 .

2015App. 3d 508, 517 (1979) (trial court did not err in rejecting mitigation of damages where the opportunity to mitigate damages was merely speculative); see Rozny, 43 Ill. 2d at 73 (failure to mitigate damages is an affirmative defense that must be pleaded and proved by defendant). ¶ 69 G.

2014App. 3d 508, 517 (1979) (trial court did not err in rejecting mitigation of damages where the opportunity to mitigate damages was merely speculative); see Rozny, 43 Ill. 2d at 73 (failure to mitigate damages is an affirmative defense that must be pleaded and proved by defendant). ¶ 69 G.