affirmative defense in Georgia

2026“A defendant is entitled to a requested jury instruction regarding an affirmative defense when at least slight evidence supports the theory of the charge[.]” McClure v. State, 306 Ga. 856, 864 (1) ( 834 SE2d 96 ) (2019). “[T]he failure to instruct the jury on a defendant’s sole defense is reversible error, even when the defendant does not request the charge.

2024And, as we 12 But see McClure v. State, 306 Ga. 856, 865 (1) (834 SE2d 96) (2019) (clarifying whether the admission necessary to assert an affirmative defense was “a legal admission that [was] binding upon the defendant or merely a non- binding assumption of facts for the sake of argument,” and noting that the phrase “admits the doing of the act charged” could have been “easily misinterpreted”). 34 held in Division 1 (a) above, jury instructions on justification and related principles would have been inconsistent with an identity defense.

2020“The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Vaughn v. Pleasent, 266 Ga. 862, 864 (1) ( 471 SE2d 866 ) (1996) (citation and punctuation omitted). “[A] defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated w

2020“The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Vaughn v. Pleasent, 266 Ga. 862, 864 (1) ( 471 SE2d 866 ) (1996) (citation and punctuation omitted). “[A] defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated w

2021To constitute an affirmative waiver, an error must have been “intentionally relinquished or abandoned.” State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011) (citation and punctuation omitted).6 Here, Davis’s trial counsel “intentionally relinquished” any objection to the trial court’s Rule 804 ruling when he agreed with the State’s Rule 804 analysis (“She’s right, Judge.”) and asked that all of Trey’s previous 6 Although Kelly addressed the plain-error standard for jury charges, Kelly, 290 Ga. at 32-33, we held in Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016), that “the same plain-err

2021To constitute an affirmative waiver, an error must have been “intentionally relinquished or abandoned.” State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011) (citation and punctuation omitted).6 Here, Davis’s trial counsel “intentionally relinquished” any objection to the trial court’s Rule 804 ruling when he agreed with the State’s Rule 804 analysis (“She’s right, Judge.”) and asked that all of Trey’s previous 6 Although Kelly addressed the plain-error standard for jury charges, Kelly, 290 Ga. at 32-33, we held in Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016), that “the same plain-err

2021“Sovereign immunity of a state agency is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity must be established by the party seeking to benefit from that waiver; thus, the plaintiff[] had the burden of establishing waiver of sovereign immunity.” (Citation and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671 (1) ( 570 SE2d 1 ) (2002) (disapproved of on other grounds by Dept. of Transp. v. Thompson, 354 Ga. App. 200 ( 840 SE2d 679 ) (2020)).

2021“Sovereign immunity of a state agency is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity must be established by the party seeking to benefit from that waiver; thus, the plaintiff[] had the burden of establishing waiver of sovereign immunity.” (Citation and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671 (1) ( 570 SE2d 1 ) (2002) (disapproved of on other grounds by Dept. of Transp. v. Thompson, 354 Ga. App. 200 ( 840 SE2d 679 ) (2020)).

2015See Davis v. State, 269 Ga. 276, 279 (3) ( 496 SE2d 699 ) (1998) (accident is an affirmative defense whereby a defendant must show that she acted without criminal intent, was not engaged in a criminal scheme, and that her action did not show an utter disregard for the safety of others); Mills v. State, 287 Ga. 828, 832 (4) ( 700 SE2d 544 ) (2010) (death caused by criminal negligence is not an accident).

2015See Davis v. State, 269 Ga. 276, 279 (3) ( 496 SE2d 699 ) (1998) (accident is an affirmative defense whereby a defendant must show that she acted without criminal intent, was not engaged in a criminal scheme, and that her action did not show an utter disregard for the safety of others); Mills v. State, 287 Ga. 828, 832 (4) ( 700 SE2d 544 ) (2010) (death caused by criminal negligence is not an accident).

1976While the Supreme Court has held that the defendant has the burden of persuasion when he raises an affirmative defense to crime ( Chandle v. State, 230 Ga. 574 (3), supra; State v. McNeill, 234 Ga. 696 , supra), more recent Georgia Supreme Court decisions have impliedly overruled Chandle and other older cases.

1976(Why there would be any difference between alibi and other affirmative defenses, I have not the slightest idea.) The Supreme Court of Georgia in Chandle v. State, 230 Ga. 574 (3) ( 198 SE2d 289 ), where the affirmative defense was that of accident, held that the burden was on the defendant.

2019The affirmative defense, however, would not have to be specifically charged if the case as a whole had been fairly presented to the jury. *63 (Citation and punctuation omitted.) Price v. State , 289 Ga. 459 , 460 (2), 712 S.E.2d 828 (2011).

2019The affirmative defense, however, would not have to be specifically charged if the case as a whole had been fairly presented to the jury. *63 (Citation and punctuation omitted.) Price v. State , 289 Ga. 459 , 460 (2), 712 S.E.2d 828 (2011).

2013Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) ( 573 SE2d 389 ) (2002) (citation omitted); accord Hansford, supra (explaining that on motion for summary judgment, nonmovant must be given fair notice of what must be met to overcome motion); Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) ( 458 SE2d 876 ) (1995) (explaining that plaintiff had no burden to respond to issue “not raised in the [defendant’s] motion for summary judgment or to present its entire case on all allegations in the complaint” and that “issues that must be rebutted on motion for summary judgment are those ra

2013Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) ( 573 SE2d 389 ) (2002) (citation omitted); accord Hansford, supra (explaining that on motion for summary judgment, nonmovant must be given fair notice of what must be met to overcome motion); Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) ( 458 SE2d 876 ) (1995) (explaining that plaintiff had no burden to respond to issue “not raised in the [defendant’s] motion for summary judgment or to present its entire case on all allegations in the complaint” and that “issues that must be rebutted on motion for summary judgment are those ra

2024“When a defendant effectively raises an affirmative defense such as self-defense the State bears the burden of disproving the asserted defense beyond a reasonable doubt.” Mosby v. State, 300 Ga. 450, 451 (1) ( 796 SE2d 277 ) (2017).

2024“When a defendant effectively raises an affirmative defense such as self-defense the State bears the burden of disproving the asserted defense beyond a reasonable doubt.” Mosby v. State, 300 Ga. 450, 451 (1) ( 796 SE2d 277 ) (2017).

2024The State contends that slight evidence did not support the accident instruction because, in the context of the affirmative defense of accident, this Court has held that a defendant’s conclusory claims that the defendant “didn’t mean to do it” or that a particular act “was an accident” “are insufficient without more to authorize a charge on accident.” Mann v. State, 307 Ga. 696, 699 (2) (a) (838 SE2d 305) (2020) (citation and punctuation omitted) 14 (holding that any error in failing to give requested accident instruction was harmless, although defendant indicated he intended to throw the seve

2024The State contends that slight evidence did not support the accident instruction because, in the context of the affirmative defense of accident, this Court has held that a defendant’s conclusory claims that the defendant “didn’t mean to do it” or that a particular act “was an accident” “are insufficient without more to authorize a charge on accident.” Mann v. State, 307 Ga. 696, 699 (2) (a) (838 SE2d 305) (2020) (citation and punctuation omitted) 14 (holding that any error in failing to give requested accident instruction was harmless, although defendant indicated he intended to throw the seve

2016“Atrial court... need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” Tarvestad v. State, 261 Ga. 605, 606 ( 409 SE2d 513 ) (1991).

2016“Atrial court... need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.” Tarvestad v. State, 261 Ga. 605, 606 ( 409 SE2d 513 ) (1991).

1997The law is well established that sovereign immunity is not an affirmative defense and that the waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver. [Cit.]” Dept. of Human Resources v. Poss, 263 Ga. 347 (1) ( 434 SE2d 488 ) (1993).

1997The law is well established that sovereign immunity is not an affirmative defense and that the waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver. [Cit.]” Dept. of Human Resources v. Poss, 263 Ga. 347 (1) ( 434 SE2d 488 ) (1993).

2020The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, “without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.”6 And in Georgia, a defendant asserting an 4 Tookes v. Murray, 297 Ga. App. 765, 766 ( 678 SE2d 209 ) (2009). 5 McQuaig v. Tarrant, 269 Ga. App. 236, 237 ( 603 SE2d 751 ) (2004); accord Dyess v. Brewton, 284 Ga. 583, 586 ( 669 SE2d 145 ) (2008). 6 Muldovan v. McEachern, 271 Ga. 805, 807 (2) ( 523 SE2d 566 ) (1999) (pun

2020The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, “without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.”6 And in Georgia, a defendant asserting an 4 Tookes v. Murray, 297 Ga. App. 765, 766 ( 678 SE2d 209 ) (2009). 5 McQuaig v. Tarrant, 269 Ga. App. 236, 237 ( 603 SE2d 751 ) (2004); accord Dyess v. Brewton, 284 Ga. 583, 586 ( 669 SE2d 145 ) (2008). 6 Muldovan v. McEachern, 271 Ga. 805, 807 (2) ( 523 SE2d 566 ) (1999) (pun

1995Statutes of limitation provide affirmative defenses to an action, OCGA § 9-11-8 (c), and "[a] defendant may not avail himself of an affirmative defense which he failed to properly present." Searcy v. Godwin, 129 Ga. App. 827, 829 ( 201 SE2d 670 ) (1973). "`The bar of the statute (of limitation) is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases.

1995Statutes of limitation provide affirmative defenses to an action, OCGA § 9-11-8 (c), and "[a] defendant may not avail himself of an affirmative defense which he failed to properly present." Searcy v. Godwin, 129 Ga. App. 827, 829 ( 201 SE2d 670 ) (1973). "`The bar of the statute (of limitation) is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases.

2024Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012); see also Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019) (“An affirmative waiver may occur, for example, when a defendant . . . explicitly requests a jury instruction that he later argues on appeal should not have been given.”); Shaw v. State, 292 Ga. 871, 873 (2) n.3 (742 SE2d 707) (2013) (under plain error review, “reversal is not warranted if the error was invited by the appellant”).

2024Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012); see also Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019) (“An affirmative waiver may occur, for example, when a defendant . . . explicitly requests a jury instruction that he later argues on appeal should not have been given.”); Shaw v. State, 292 Ga. 871, 873 (2) n.3 (742 SE2d 707) (2013) (under plain error review, “reversal is not warranted if the error was invited by the appellant”).

2012Once Willis satisfied his burden of establishing his defense of official immunity, the burden of production of evidence shift[ed] to the [Howells], who [could] survive summary judgment in the same fashion that [they] would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. 9 (Citations omitted.) Weston v. Dun Transp.& Stringer, 304 Ga. App. 84, 85 ( 695 SE2d 279 ) (2010).

2012Once Willis satisfied his burden of establishing his defense of official immunity, the burden of production of evidence shift[ed] to the [Howells], who [could] survive summary judgment in the same fashion that [they] would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. 9 (Citations omitted.) Weston v. Dun Transp.& Stringer, 304 Ga. App. 84, 85 ( 695 SE2d 279 ) (2010).

2020See, e.g., Cleaveland v. Gannon, 284 Ga. 376, 381 (2) ( 667 SE2d 366 ) (2008) (defense of statute of limitation is an affirmative defense under OCGA § 9-11-8 (c)).

2020See, e.g., Cleaveland v. Gannon, 284 Ga. 376, 381 (2) ( 667 SE2d 366 ) (2008) (defense of statute of limitation is an affirmative defense under OCGA § 9-11-8 (c)).

2016“The determination of whether the State has met its burden to disprove the affirmative defense is for the jury, and the jury’s determination in the present case that the burden was met was supported by the evidence.” (Citation omitted.) Bentley v. State, 261 Ga. 229 (2) ( 404 SE2d 101 ) (1991).

2016“The determination of whether the State has met its burden to disprove the affirmative defense is for the jury, and the jury’s determination in the present case that the burden was met was supported by the evidence.” (Citation omitted.) Bentley v. State, 261 Ga. 229 (2) ( 404 SE2d 101 ) (1991).

2023Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the [affirmative defense].” (citation and punctuation omitted)); McLean v. State, 297 Ga. 81, 83 (2) (772 SE2d 685) (2015) (“[T]o assert an affirmative defense, a defendant must admit the act, or he is not entitled to a charge on that defense.” (citation and punctuation omitted)).

2023Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the [affirmative defense].” (citation and punctuation omitted)); McLean v. State, 297 Ga. 81, 83 (2) (772 SE2d 685) (2015) (“[T]o assert an affirmative defense, a defendant must admit the act, or he is not entitled to a charge on that defense.” (citation and punctuation omitted)).

2010See also Broussard v. State, 276 Ga. 216 (2) ( 576 SE2d 883 ) (2003) (“^Justification is an affirmative defense whereby the defendant admits acting with the intent to inflict an injury, but claims that he did so while in reasonable fear of suffering immediate serious harm to himself or another”); Brown v. State, 267 Ga. 350 (2) ( 478 SE2d 129 ) (1996) (££ £[a]n affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it’ ”); Lightning v. State, 297 Ga. App. 54 (5) ( 676 SE2d 780 ) (2009) (a defendant must admit the act or he is not ent

2010See also Broussard v. State, 276 Ga. 216 (2) ( 576 SE2d 883 ) (2003) (“^Justification is an affirmative defense whereby the defendant admits acting with the intent to inflict an injury, but claims that he did so while in reasonable fear of suffering immediate serious harm to himself or another”); Brown v. State, 267 Ga. 350 (2) ( 478 SE2d 129 ) (1996) (££ £[a]n affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it’ ”); Lightning v. State, 297 Ga. App. 54 (5) ( 676 SE2d 780 ) (2009) (a defendant must admit the act or he is not ent

2017When the issue of justification in the exercise of parental discipline is raised by the evidence, the burden is on the State to disprove that the defendant was justified. 15 See Divisions 1 and 2, supra; see also Code v. State, 255 Ga.App. 432, 434 (4) ( 565 SE2d 477 ) (2002) (“[E]ven if justification is a defendant’s sole defense, it is not error to refuse the charge if there is no evidence to support it.”) (footnote omitted). 16 See Chapel v. State, 270 Ga. 151, 156 (7) ( 510 SE2d 802 ) (1998) (“The trial court was not required to give an instruction on alibi absent a defense request because

2017When the issue of justification in the exercise of parental discipline is raised by the evidence, the burden is on the State to disprove that the defendant was justified. 15 See Divisions 1 and 2, supra; see also Code v. State, 255 Ga.App. 432, 434 (4) ( 565 SE2d 477 ) (2002) (“[E]ven if justification is a defendant’s sole defense, it is not error to refuse the charge if there is no evidence to support it.”) (footnote omitted). 16 See Chapel v. State, 270 Ga. 151, 156 (7) ( 510 SE2d 802 ) (1998) (“The trial court was not required to give an instruction on alibi absent a defense request because

2016One instruction provides that, when the arrest itself is unlawful (the officer lacks probable cause), the person may resist the arrest with the degree of force that is reasonably 1 See also Green v. State, 240 Ga. App. 774, 775-776 (1) ( 525 SE2d 154 ) (1999) (Where the alleged acts of obstruction of an officer consisted of the defendant’s attempts to resist arrest, and the defendant argued that the arrest was unlawful, the defendant was not asserting the affirmative defense of justification and admitting the essential elements of the crime of obstruction.

2016One instruction provides that, when the arrest itself is unlawful (the officer lacks probable cause), the person may resist the arrest with the degree of force that is reasonably 1 See also Green v. State, 240 Ga. App. 774, 775-776 (1) ( 525 SE2d 154 ) (1999) (Where the alleged acts of obstruction of an officer consisted of the defendant’s attempts to resist arrest, and the defendant argued that the arrest was unlawful, the defendant was not asserting the affirmative defense of justification and admitting the essential elements of the crime of obstruction.

2023See Hobbs v. Arthur, 264 Ga. 359, 360-361 ( 444 SE2d 322 ) (1994) (“inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.”). 5 In the Court of Appeals of Georgia A23A0935.

2023See Hobbs v. Arthur, 264 Ga. 359, 360-361 ( 444 SE2d 322 ) (1994) (“inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.”). 5 In the Court of Appeals of Georgia A23A0935.

2022Compare Grullon v. State, 313 Ga. 40, 46 (867 SE2d 95) (2021) (holding that defendant’s response of “no,” when asked by the trial court whether he had any objection to jury charge, was not an affirmative waiver) and Cheddersingh v. State, 290 Ga. 680, 684 (724 SE2d 366) (2012) (holding 22 reasonable dispute, . . . must have affected his substantial rights, and . . . must have seriously affected the fairness, integrity or public reputation of judicial proceedings.” McKinney, 307 Ga. at 134 (citation and punctuation omitted).

2022Compare Grullon v. State, 313 Ga. 40, 46 (867 SE2d 95) (2021) (holding that defendant’s response of “no,” when asked by the trial court whether he had any objection to jury charge, was not an affirmative waiver) and Cheddersingh v. State, 290 Ga. 680, 684 (724 SE2d 366) (2012) (holding 22 reasonable dispute, . . . must have affected his substantial rights, and . . . must have seriously affected the fairness, integrity or public reputation of judicial proceedings.” McKinney, 307 Ga. at 134 (citation and punctuation omitted).