affirmative defense in Kentucky

2024Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 485 (Ky. 2009), as corrected (Jan. 4, 2010) (“Certainly, as a general rule, failure to assert timely an affirmative defense waives that defense and precludes its consideration by the trial court and this Court.”).

2023“As a general rule, a party’s failure to timely assert an affirmative defense waives that defense . . . unless the circuit court allowed it to be presented later.” American Founders Bank, Inc. v. Moden Investments, LLC, 432 S.W.3d 715, 722 (Ky. App. 2014) (citing Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 485 (Ky. 2009)); CR 8.03).

2025However, res judicata is “an affirmative defense which operates to bar repetitious suits involving the same cause of action.” Yeoman, 983 S.W.2d at 464 .

2024Res judicata is an affirmative defense that “operates to bar repetitious suits involving the same cause of action[,]” and involves “two subparts: 1) claim preclusion and 2) issue preclusion.” Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998).

2023But we further distinguish Brafman, and focus our discussion on it, because its rationale depended on voluntary intoxication as an affirmative defense; as such, Brafman had a burden to put on “‘some evidence justifying a reasonable inference’ that the evidence warranted that instruction.” Breazeale, 600 S.W.3d at 691 (quoting Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015)).

2021Voluntary intoxication 10 Id. 11 See id. (citing RCr 9.54); Holt v. Commonwealth, 219 S.W.3d 731 (Ky. 2007). 12Breazeale, at 691 (citing Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015)); Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010). 13 See Sargent, 467 S.W.3d at 202–03. 14 Grigsby v. Commonwealth, 187 S.W.2d 259 , 261–62 (Ky. 1945) (“[W]here the defendant proves facts or circumstances to excuse his act which otherwise would in and of itself be a crime, or the specific issue is one of criminal intent, such as where there is a claim of accident, self-defense or mental capacity, ordi

2009Co. v. Cain, 236 S.W.3d at 585 (defendant “who asserts exclusive remedy immunity must both plead and prove the affirmative defense”); and Becht v. Owens Corning Fiberglas Corp., 196 F.3d 650, 654 (6th Cir.1999), citing Gordon at 362 (employer “did not introduce any evidence to prove that it ‘secure[d] payment of compensation’ as required by KY.REV.STAT.

2007Consistent with the principles expressed in Shamrock Coal Co., Inc. v. Mancle, 5 S.W.3d 130, 133 (Ky.1999), and Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.1994), a premises owner who asserts exclusive remedy immunity must both plead and prove the affirmative defense.

2026Yanero, 65 S.W.3d at 521-22 (citations omitted).

2022Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001). -5- Here, we must determine what qualified immunity Farrow and Maraman enjoy, if any, as an affirmative defense to the claims against them.

2026And “where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

2023See Stiger v. Commonwealth, 381 S.W.3d 230, 237-238 (Ky. 2012) (holding that advice concerning likelihood of a longer sentence is not ineffectiveness); Hill, 474 U.S. at 59 , 106 S. Ct. at 371 (“[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.”). -5- Poe was asked when he entered his plea if he was doing so of his own choice and whether he was satisfied with counsel’s performance

2026To assert exclusive remedy immunity, a premises owner must “plead and prove the affirmative defense . . . with substantial evidence that a defendant was the injured worker’s statutory 2 Kentucky Workers’ Compensation Act. -3- employer under a correct interpretation of KRS[3] 342.610(2)(b).” General Electric Co. v. Cain, 236 S.W.3d 579, 585 (Ky. 2007).

2024That Court first noted that a party that asserts exclusive-remedy immunity must both plead and prove the affirmative defense. 236 S.W.3d at 585 .

2017Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 607-08 (Ky. 2014) (“ministerial exception is an affirmative defense that must be pleaded and proved”); Saint Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 737 (Ky. 2014) (“ecclesiastical-abstention doctrine is an affirmative defense”). 5 .

2017Saint Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 737 (Ky. 2014) ("ecclesiastical-abstention doctrine is an affirmative defense"). 3 "...

2023With due respect to the dissent, the burden of proof for an affirmative defense is, admittedly, “not a terribly high bar.” King v. Commonwealth, 513 S.W.3d 919, 924 (Ky. 2017).

2023With due respect to the dissent, the burden of proof for an affirmative defense is, admittedly, “not a terribly high bar.” King v. Commonwealth, 513 S.W.3d 919, 924 (Ky. 2017).

2023“As a general rule, a party’s failure to timely assert an affirmative defense waives that defense . . . unless the circuit court allowed it to be presented later.” American Founders Bank, Inc. v. Moden Investments, LLC, 432 S.W.3d 715, 722 (Ky. App. 2014) (citing Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 485 (Ky. 2009)); CR 8.03).

2022Founders Bank, Inc. v. Moden Inv., LLC, 432 S.W.3d 715, 722 (Ky. App. 2014) (“party’s failure to timely assert an affirmative defense waives that defense . . . , unless the circuit court allowed it to be presented later”). -9- This Court’s de novo review of this issue alone is enough to affirm the summary judgment.

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2018Instead, it is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court.”) ; Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 983 (6th Cir. 2012) (“The issue of standing, however, may be raised sua sponte”).

2018Instead, it is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court.”) ; Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 983 (6th Cir. 2012) (“The issue of standing, however, may be raised sua sponte”).

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2018Rev. 813 (2004) (citing Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001); Boeing Co. v. Van Gemert, 444 U.S. 472 , 488 n.4 (1980) (Rehnquist, J., dissenting); Juidice v. Vail, 430 U.S. 327, 331 (1977)). 17 See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (“We are obliged to examine standing sua sponte where standing has erroneously been assumed below.”); see also, e.g., Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (“Standing is not an affirmative defense that must be raised at risk of forfeiture.

2021Voluntary intoxication 10 Id. 11 See id. (citing RCr 9.54); Holt v. Commonwealth, 219 S.W.3d 731 (Ky. 2007). 12Breazeale, at 691 (citing Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015)); Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010). 13 See Sargent, 467 S.W.3d at 202–03. 14 Grigsby v. Commonwealth, 187 S.W.2d 259 , 261–62 (Ky. 1945) (“[W]here the defendant proves facts or circumstances to excuse his act which otherwise would in and of itself be a crime, or the specific issue is one of criminal intent, such as where there is a claim of accident, self-defense or mental capacity, ordi

2021The general rule is that where the general instructions are “couched in such language as the ordinary layman, who sits upon the jury, can easily and readily understand and comprehend, and its negative completely and adequately covers the defense of the accused, it is unnecessary to give an affirmative instruction on the theory.” 20 Duvall v. Commonwealth, 225 Ky. 827 , 10 S.W.2d 279, 281 (1928).6 Sutton relies on Cheser’s statement that where a mistake of fact defense negates the existence of a statutorily required mental state, it is an abuse of discretion for a trial court not to give this i

2025In Corner v. Popplewell, 701 S.W.3d 519 (Ky. 2024), the Court reaffirmed the holding in Harrison, supra, and discussed the reasoning behind requiring such an affirmative defense to be raised early in the proceedings.

2023Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010).

2023“The sufficiency of the evidence to [support a requested instruction] is a question of law for the courts to determine on a case-by-case basis.” Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977), overruled on other grounds by Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981).

2023“The sufficiency of the evidence to [support a requested instruction] is a question of law for the courts to determine on a case-by-case basis.” Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977), overruled on other grounds by Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981).

2017See Dunaway, 490 S.W.3d at 695 (“The fact that KSF did not promptly assert the arbitration award as an affirmative defense . . . suggests that KSF did not immediately think of Section 5(e) as an arbitration clause and did not immediately regard the DMLO calculation as a binding arbitration award.”).

2017See Dunaway, 490 S.W.3d at 695 (“The fact that KSF did not promptly assert the arbitration award as an affirmative defense . . . suggests that KSF did not immediately think of Section 5(e) as an arbitration clause and did not immediately regard the DMLO calculation as a binding arbitration award.”).

2006In the circumstances shown in this case the defendant was entitled to an affirmative instruction within the rationale of the authorities cited, and we must reverse the judgment of conviction for the failure of the court to so instruct the jury.”); Evitts v. Commonwealth, 257 Ky. 586 , 78 S.W.2d 798, 799-800 (1935) (“We have held repeatedly that, where an accused admits the offense, or essential elements of the offense, but relies upon facts or circumstances amounting to an avoidance of the crime, he is entitled to a concrete instruction upon his theory of the case, and a mere general instructi

2006In the circumstances shown in this case the defendant was entitled to an affirmative instruction within the rationale of the authorities cited, and we must reverse the judgment of conviction for the failure of the court to so instruct the jury.”); Evitts v. Commonwealth, 257 Ky. 586 , 78 S.W.2d 798, 799-800 (1935) (“We have held repeatedly that, where an accused admits the offense, or essential elements of the offense, but relies upon facts or circumstances amounting to an avoidance of the crime, he is entitled to a concrete instruction upon his theory of the case, and a mere general instructi

2025Our precedent relating to the giving of self-defense instructions must be examined from the perspective that failing to give such an instruction, when required, violates a defendant’s right to due process and Second Amendment right to engage in self-defense. “[A] criminal defendant is entitled to jury instructions on any defense supported by the evidence.” Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005) (superseded on other grounds by changes to the relevant self- defense statutes). “[T]he entitlement to an affirmative instruction is depend[e]nt upon the introduction of some evidence j

2007This applies to lesser-included offenses as well as affirmative defenses: “[T]he entitlement to an affirmative instruction is de-pendant upon the introduction of some evidence justifying a reasonable inference of the existence of a defense.” Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky.1997).

2024Proof of operability, therefore, or jury instructions requiring a finding that a firearm actually works are not necessary unless there is non- speculative evidence at trial which calls the presumption into reasonable doubt.” Jones, 283 S.W.3d at 670-71 (citation omitted).

2024Commonwealth v. Jones, 283 S.W.3d 665, 671 (Ky. 2009).

2023During the first round of litigation in this 61 Denison v. McCann, 197 S.W.2d 248, 249 (Ky. 1946). 62 CR 8.03 (“In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, 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, waiver, and any other matter constituting an avoidance or affirmative defense.”). 28 case, the Bruners argued in t

2022During the first round of litigation in this 61 Denison v. McCann, 197 S.W.2d 248, 249 (Ky. 1946). 62 CR 8.03 (“In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, 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, waiver, and any other matter constituting an avoidance or affirmative defense.”). 28 case, the Bruners argued in t

2021The general rule is that where the general instructions are “couched in such language as the ordinary layman, who sits upon the jury, can easily and readily understand and comprehend, and its negative completely and adequately covers the defense of the accused, it is unnecessary to give an affirmative instruction on the theory.” 20 Duvall v. Commonwealth, 225 Ky. 827 , 10 S.W.2d 279, 281 (1928).6 Sutton relies on Cheser’s statement that where a mistake of fact defense negates the existence of a statutorily required mental state, it is an abuse of discretion for a trial court not to give this i

2021The general rule is that where the general instructions are “couched in such language as the ordinary layman, who sits upon the jury, can easily and readily understand and comprehend, and its negative completely and adequately covers the defense of the accused, it is unnecessary to give an affirmative instruction on the theory.” 20 Duvall v. Commonwealth, 225 Ky. 827 , 10 S.W.2d 279, 281 (1928).6 Sutton relies on Cheser’s statement that where a mistake of fact defense negates the existence of a statutorily required mental state, it is an abuse of discretion for a trial court not to give this i