affirmative defense in Michigan

2026Under the common law, “the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) (quotation marks and citation omitted). “[O]nce the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to es

2026Under the common law, “the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) (quotation marks and citation omitted). “[O]nce the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to es

2026Under the common law, “the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) (quotation marks and citation omitted). “[O]nce the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to es

2026Under the common law, “the affirmative defense of self-defense justified the killing of another person if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” People v Guajardo, 300 Mich App 26, 35 ; 832 NW2d 409 (2013) (quotation marks and citation omitted). “[O]nce the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to es

2017See Bonney v Citizens’ Mut Auto Ins Co, 333 Mich 435, 437 ; 53 NW2d 321 (1952) (stating that an insurer pleaded the applicability of a policy exclusion as an affirmative defense); Roddis Lumber & Veneer Co v American Alliance Ins Co of NY, 330 Mich 81, 88 ; 47 NW2d 23 (1951) (holding that the insurer had the burden of proof on its “affirmative defense that the loss comes under an exclusion clause of the policy[]”); Stein v Home-Owners Ins Co, 303 Mich App 382, 387-391 ; 843 NW2d 780 (2013) (referring to the insurer’s assertion of a policy exclusion as an affirmative defense); Rice v Detroit Au

2017See Bonney v Citizens’ Mut Auto Ins Co, 333 Mich 435, 437 ; 53 NW2d 321 (1952) (stating that an insurer pleaded the applicability of a policy exclusion as an affirmative defense); Roddis Lumber & Veneer Co v American Alliance Ins Co of NY, 330 Mich 81, 88 ; 47 NW2d 23 (1951) (holding that the insurer had the burden of proof on its “affirmative defense that the loss comes under an exclusion clause of the policy[]”); Stein v Home-Owners Ins Co, 303 Mich App 382, 387-391 ; 843 NW2d 780 (2013) (referring to the insurer’s assertion of a policy exclusion as an affirmative defense); Rice v Detroit Au

2020“It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government.” Fairley v Dep’t of Corrections, 497 Mich 290, 298 ; 871 NW2d 129 (2015), citing Mack v Detroit, 467 Mich 186, 198 ; 649 NW2d 47 (2002).

2020“It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government.” Fairley v Dep’t of Corrections, 497 Mich 290, 298 ; 871 NW2d 129 (2015), citing Mack v Detroit, 467 Mich 186, 198 ; 649 NW2d 47 (2002).

2026Regarding intentional torts, our Supreme Court’s decision in Ross “clearly provides governmental employees qualified immunity from intentional-tort liability at common law.” Id. at 473 . “[G]overnmental immunity for individuals evolved into an affirmative defense under the common law . . . .” Id. at 479 .

2026Regarding intentional torts, our Supreme Court’s decision in Ross “clearly provides governmental employees qualified immunity from intentional-tort liability at common law.” Id. at 473 . “[G]overnmental immunity for individuals evolved into an affirmative defense under the common law . . . .” Id. at 479 .

2021SECTION 8 AFFIRMATIVE DEFENSE “Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of registration with the state—with the ability to assert an affirmative defense to a marijuana-related offense.” People v Hartwick, 498 Mich 192, 226 ; 870 NW2d 37 (2015).

2021SECTION 8 AFFIRMATIVE DEFENSE “Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of registration with the state—with the ability to assert an affirmative defense to a marijuana-related offense.” People v Hartwick, 498 Mich 192, 226 ; 870 NW2d 37 (2015).

2025“A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.” MCR 2.111(F)(2); see also Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 ; 635 NW2d 379 (2001) (“An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.”).

2025“A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted.” MCR 2.111(F)(2); see also Citizens Ins Co of America v Juno Lighting, Inc, 247 Mich App 236, 241 ; 635 NW2d 379 (2001) (“An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.”).

2025Defendants seek to avoid that consequence on appeal by stressing that they raised equitable estoppel as an affirmative defense; they suggest that equitable estoppel is sufficiently similar to laches that, by arguing in favor of the latter defense now, they are merely offering a “more sophisticated or fully developed argument on appeal than was made in the trial court.” Glasker-Davis v Auvenshine, 333 Mich App 222 , 228; 964 NW2d 809 (2020).

2025Defendants seek to avoid that consequence on appeal by stressing that they raised equitable estoppel as an affirmative defense; they suggest that equitable estoppel is sufficiently similar to laches that, by arguing in favor of the latter defense now, they are merely offering a “more sophisticated or fully developed argument on appeal than was made in the trial court.” Glasker-Davis v Auvenshine, 333 Mich App 222 , 228; 964 NW2d 809 (2020).

2025Dismissal based upon an affirmative defense should only be granted when “the defense is complete and there are no conflicting facts regarding the defense.” Id.

2012Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.” People v Redden, 290 Mich App 65, 81 ; 799 NW2d 184 (2010).

2025See People v Mette, 243 Mich App 318, 330 , 621 NW2d 713 (2000) (“The prosecution is not shouldered with the burden of proving the failure of an affirmative defense.”).

2025See People v Mette, 243 Mich App 318, 330 , 621 NW2d 713 (2000) (“The prosecution is not shouldered with the burden of proving the failure of an affirmative defense.”).

2026Further, in a case involving the defendant’s burden to prove the affirmative defense that he had a valid prescription for purposes of MCL 333.7403(1), the defendant similarly argued that “the police officers’ testimony recounting his assertion that he had a prescription satisfied his burden of production.” Pegenau, 447 Mich at 294 .

2017Justice MALLETT explained that the "presence of a prescription is analogous to an affirmative defense," id. at 289 , so the statutory "language concerning a prescription or other authorization refers to an exemption rather than an element of the crime," id. at 292 , 523 N.W.2d 325 . 11 In Hartuniewicz , 294 Mich.App. at 245 -246 , 816 N.W.2d 442 , this Court further explained: Before Pegenau , this Court repeatedly considered the burden of proof in relation to exceptions to the CSA.

2020The purpose of the MMMA is to allow a limited class of individuals the medical use of marijuana, and the act declares this purpose to be an “effort for the health and welfare of [Michigan] citizens.” To meet this end, the MMMA defines the parameters of legal medical-marijuana use, promulgates a scheme for regulating registered patient use and administering the act, and provides for an affirmative defense, as well as penalties for violating the MMMA. [Quoting MCL 333.26422(c); alteration in original; first citation omitted.] The Kolanek Court explained that, when reviewing the MMMA, the “goal i

2019This does not end our inquiry, however, because defendant has additionally argued that the trial court erred in rejecting his § 8 affirmative defense under the MMMA. “[T]he language of § 8 permits those individuals who are not registered cardholding patients to assert the § 8 affirmative defense.” Kolanek, 491 Mich at 398 . § 8 provides an affirmative defense to “patients” or “a person” generally.

2026A defendant is entitled to a jury instruction on an affirmative defense upon a showing of “some evidence from which the jury can conclude that the essential elements of the defense are present.” People v Lemons, 454 Mich 234, 246 ; 562 NW2d 447 (1997) (cleaned up).

2026A defendant is entitled to a jury instruction on an affirmative defense upon a showing of “some evidence from which the jury can conclude that the essential elements of the defense are present.” People v Lemons, 454 Mich 234, 246 ; 562 NW2d 447 (1997) (cleaned up).

2023An affirmative defense “seeks to foreclose the plaintiff from continuing a civil action for reasons unrelated to the plaintiff’s prima facie case.” Campbell v St John Hospital, 434 Mich 608, 616 ; 455 NW2d 695 (1990).

2023An affirmative defense “seeks to foreclose the plaintiff from continuing a civil action for reasons unrelated to the plaintiff’s prima facie case.” Campbell v St John Hospital, 434 Mich 608, 616 ; 455 NW2d 695 (1990).

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026People v Dupree, 486 Mich 693, 709-710 ; 788 NW2d 399 (2010).1 Common-law self-defense is codified in MCL 780.972, which states, in relevant part: 1 Self-defense is an affirmative defense that “justifies otherwise punishable criminal conduct, usually the killing of another person, ‘if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Id. at 707 , quoting People v Riddle, 467 Mich 116, 127 ; 649 NW2d 30 (2002). -3- (1) An individual w

2026“The running of the statute of limitations is an affirmative defense.” Dell v Citizens Ins Co of America, 312 Mich App 734, 752 ; 880 NW2d 280 (2015) (quotation marks, brackets, and citation omitted).

2026“The running of the statute of limitations is an affirmative defense.” Dell v Citizens Ins Co of America, 312 Mich App 734, 752 ; 880 NW2d 280 (2015) (quotation marks, brackets, and citation omitted).

2024See Palenkas v Beaumont Hosp, 432 Mich 527, 548 ; 443 NW2d 354 (1989) (opinion by ARCHER, J.) (“The party asserting an affirmative defense had the burden of introducing evidence to support the affirmative defense.”); see also id. at 530 (concurring in Sections I and II of Justice ARCHER’S opinion); Lewis v Poel, 376 Mich 167, 169 ; 136 NW2d 7 (1965) (stating that laches is an affirmative defense).

2024See Palenkas v Beaumont Hosp, 432 Mich 527, 548 ; 443 NW2d 354 (1989) (opinion by ARCHER, J.) (“The party asserting an affirmative defense had the burden of introducing evidence to support the affirmative defense.”); see also id. at 530 (concurring in Sections I and II of Justice ARCHER’S opinion); Lewis v Poel, 376 Mich 167, 169 ; 136 NW2d 7 (1965) (stating that laches is an affirmative defense).

2020“Reliance on an exclusionary clause in an insurance policy is an affirmative defense.” Shelton v Auto-Owners Ins Co, 318 Mich App 648 , 657; 899 NW2d 744 (2017).

2020“Reliance on an exclusionary clause in an insurance policy is an affirmative defense.” Shelton v Auto-Owners Ins Co, 318 Mich App 648 , 657; 899 NW2d 744 (2017).

2026As the majority explains, “Because diminished capacity is necessarily distinct from the affirmative defense of legal insanity, the Legislature’s codification of the legal-insanity defense has no bearing on the admissibility of diminished-capacity evidence.” The error of this Court’s statutory interpretation in People v Carpenter, 464 Mich 223 ; 627 NW2d 276 (2001), resulted from the failure to recognize the distinction between diminished- capacity evidence and the affirmative defense of legal insanity.

2026As the majority explains, “Because diminished capacity is necessarily distinct from the affirmative defense of legal insanity, the Legislature’s codification of the legal-insanity defense has no bearing on the admissibility of diminished-capacity evidence.” The error of this Court’s statutory interpretation in People v Carpenter, 464 Mich 223 ; 627 NW2d 276 (2001), resulted from the failure to recognize the distinction between diminished- capacity evidence and the affirmative defense of legal insanity.

2025Under MCL 500.3135(2)(b), “Damages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” “Comparative negligence is an affirmative defense.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 98 ; 485 NW2d 676 (1992).

2025Under MCL 500.3135(2)(b), “Damages must be assessed on the basis of comparative fault, except that damages must not be assessed in favor of a party who is more than 50% at fault.” “Comparative negligence is an affirmative defense.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 98 ; 485 NW2d 676 (1992).

2016MCR 2.111(F)(3)(a); see also Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 214 ; 850 NW2d 667 (2013), rev’d on other grounds 498 Mich 68 (2015) (“[A] statement of an affirmative defense must contain facts setting forth why and how the party asserting it believes the affirmative defense is applicable.”).

2016MCR 2.111(F)(3)(a); see also Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 214 ; 850 NW2d 667 (2013), rev’d on other grounds 498 Mich 68 (2015) (“[A] statement of an affirmative defense must contain facts setting forth why and how the party asserting it believes the affirmative defense is applicable.”).

2026Although a plaintiff has a duty to mitigate damages, the defendant bears the burden of proof. “[T]he failure of a discharged employee to mitigate damages, whether by seeking other employment or by rejecting an unconditional reinstatement offer, is an affirmative defense to be established by the employer.” Id. at 124 . “[O]nce it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that the rejection of the offer is unreasonable.” Id. at 132 .

2026Although a plaintiff has a duty to mitigate damages, the defendant bears the burden of proof. “[T]he failure of a discharged employee to mitigate damages, whether by seeking other employment or by rejecting an unconditional reinstatement offer, is an affirmative defense to be established by the employer.” Id. at 124 . “[O]nce it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that the rejection of the offer is unreasonable.” Id. at 132 .