affirmative defense in Rhode Island

2018P. 8(c) ; Catelli v. Fleetwood , 842 A.2d 1078 , 1081 (R.I. 2004) ("It is well settled that 'failure to plead an affirmative defense results in its waiver.' " (quoting Duquette v. Godbout , 416 A.2d 669 , 670 (R.I. 1980) ) ).

2004Rule 8(b) of both the Superior Court Rules of Civil Procedure and District Court Civil Rules require that “[a] party shall state in short and plain terms [the party’s] defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies[,]” and both versions of Rule 8(c) state that “a party shall set forth affirmatively * * * any * * * matter constituting an * * * affirmative defense.” It is well settled that “failure to plead an affirmative defense results in its waiver.” Duquette v. Godbout, 416 A.2d 669, 670 (R.I.1980).

2009In support of his argument, Plaintiff *Page 5 relies upon the holding in World-Wide Computer Resources, Inc v. Arthur Kaufman , that "the failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense." 615 A.2d 122 , 124 (R.I. 1992).

2003Rule 8(c) of the Superior Court Rules of Civil Procedure has been construed to mean that “the failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense.” World-Wide Computer Resources, Inc. v. Arthur Kaufman Sales Co., 615 A.2d 122, 124 (R.I.1992) (World-Wide) (citing LaBounty v. LaBounty, 497 A.2d 302, 305 (R.I.1985); Duquette v. Godbout, 416 A.2d 669, 670 (R.I.1980)).

2010Co. v. Carbone , 898 A.2d 87 , 101 (R.I. 2006) (citing LaBounty v. LaBounty , 497 A.2d 302 , 305 (R.I 1985)).

2003Rule 8(c) of the Superior Court Rules of Civil Procedure has been construed to mean that “the failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense.” World-Wide Computer Resources, Inc. v. Arthur Kaufman Sales Co., 615 A.2d 122, 124 (R.I.1992) (World-Wide) (citing LaBounty v. LaBounty, 497 A.2d 302, 305 (R.I.1985); Duquette v. Godbout, 416 A.2d 669, 670 (R.I.1980)).

2015Although the statute of limitations was not raised in the answer, we have “unequivocally held that the expiration of a statute of limitations is an affirmative defense that must be raised at. or before trial or it is waived.” Brown v. State, 32 A.3d 901, 913 (R.I.2011) (citing State v. Lambrechts, 585 A.2d 645, 648 (R.I.1991) (emphasis added)); see also Industrial National Bank v. Peloso, 121 R.I. 305, 308 , 397 A.2d 1312, 1313-14 (1979) (allowing an affirmative defense to be raised by way of summary judgment).

2007As the provision in the present case is nearly identical to those quoted in Waradzin and Grady , the Court construes the Appraisal Provision to be an arbitration clause subject to § 10-3-4 . 7 "For many years [courts] were divided on the issue of whether a . . . limitations [period] was a jurisdictional bar to prosecution or an affirmative defense." State v. Lambrechts , 585 A.2d 645 , 646-647 (R.I. 1991) (internal citations omitted).

2017Rule 8(c) of the Superior Court Rules of Civil Procedure provides that, “[i]n pleading to a preceding pleading, a party shall set forth affirmatively * * * arbitration and award * * * and any other matter constituting an avoidance or affirmative defense.” It has been our consistent holding that arbitration is an affirmative defense and that “a defending party seeking arbitration must specifically plead the right to arbitrate in its answer or the defense will be deemed waived.” Soprano v. American Hardware Mutual Insurance Co., 491 A.2d 1008, 1010 (R.I. 1985); see also Associated Bonded Constru

2017Moreover, we have stated that “a defending party who fails to plead an affirmative defense, thereby waiving it, may not later move to dismiss the opponent’s complaint under [Rule 12 of the Superior Court Rules of Civil Procedure], using that waived affirmative defense as a basis for dismissal.” Associated Bonded Construction Co., 438 A.2d at 1091 .

2002The Court has stated "the doctrine of assumption of risk is an affirmative defense, which, when applicable, operates to absolve a defendant of liability for having created an unreasonable risk." See Walker v. Johnson, 723 A.2d 1115 , 1117 (R.I. 1999) (quoting Ricky v. Boden, 421 A.2d 539 , 543 (R.I. 1980)).

2001However, “[t]he doctrine of assumption of * * * risk is an affirmative defense [that, if proven,] absolve[s] a defendant of liability for having created an unreasonable risk.” Walker v. Jackson, 723 A.2d 1115, 1117 (R.I.1999) (quoting Rickey v. Boden, 421 A.2d 539, 543 (R.I.1980)).

2023See CACH, LLC v. Potter, 154 A.3d 939, 942 (R.I. 2017) (noting that “[i]t has been our consistent holding that arbitration is an affirmative defense and that ‘a defending party seeking arbitration must specifically plead the right to arbitrate in its answer or the defense will be deemed waived’” (quoting Soprano v. American Hardware Mutual Insurance Co., 491 A.2d 1008, 1010 (R.I. 1985))).

2019"It has been our consistent holding that arbitration is an affirmative defense and that 'a defending party seeking arbitration must specifically plead the right to arbitrate in its answer or the defense will be deemed waived.' " CACH, LLC v. Potter , 154 A.3d 939 , 942 (R.I. 2017) (quoting Soprano , 491 A.2d at 1010 ). *177 The defendants set forth four affirmative defenses in their answer to plaintiff's amended complaint: (1) failure to state a claim upon which relief can be granted; (2) accord and satisfaction; (3) estoppel; and (4) insufficiency of process.

2012In Kent , decided more than six decades ago, we announced that “rarely under [§ 31-33-7] can it be ruled as a matter of law that an affirmative defense has been made out or that a prima facie case under the statute has been overcome.” Kent, 75 R.I. at 37 , 63 A.2d at 575 .

2012In Kent , decided more than six decades ago, we announced that “rarely under [§ 31-33-7] can it be ruled as a matter of law that an affirmative defense has been made out or that a prima facie case under the statute has been overcome.” Kent, 75 R.I. at 37 , 63 A.2d at 575 .

2018Nevertheless, an affirmative defense need not "be explicitly labeled as such, and the defense may be pleaded in general terms so long as it gives the [plaintiff] fair notice of the defense." Catelli , 842 A.2d at 1081 (quoting Tucker v. Mammoth Mart Inc. , 446 A.2d 760 , 762 (R.I. 1982) ).

2010P. 8(c), our Supreme Court has affirmed that "[t]here is no requirement that an affirmative defense be specifically labeled as such, and the defense `may be pleaded in general so long as it gives the plaintiff fair notice of the defense.'" Tucker v. Mammoth Mart, Inc. , 446 A.2d 760 , 762 (R.I. 1982) (quoting 1 Kent, R.I.

2009The law in Rhode Island is well settled that a party claiming injury "has a duty to exercise reasonable diligence and ordinary care in attempting to minimize its damages." Id. (citing Bibby's Refrigeration , *Page 8 Heating Air Conditioning, Inc. v. Salisbury , 603 A.2d 726 , 729 (R.I. 1992)).

2001The law in Rhode Island is well settled that a party claiming injury “has a duty to exercise reasonable diligence and ordinary care in attempting to minimize its damages.” Id. (citing Bibby’s Refrigeration, Heating & Air Conditioning, Inc. v. Salisbury, 603 A.2d 726, 729 (R.I.1992)).

2002The Court has stated "the doctrine of assumption of risk is an affirmative defense, which, when applicable, operates to absolve a defendant of liability for having created an unreasonable risk." See Walker v. Johnson, 723 A.2d 1115 , 1117 (R.I. 1999) (quoting Ricky v. Boden, 421 A.2d 539 , 543 (R.I. 1980)).

2001However, “[t]he doctrine of assumption of * * * risk is an affirmative defense [that, if proven,] absolve[s] a defendant of liability for having created an unreasonable risk.” Walker v. Jackson, 723 A.2d 1115, 1117 (R.I.1999) (quoting Rickey v. Boden, 421 A.2d 539, 543 (R.I.1980)).

1986Young v. Park , 116 R.I. 568, 573 , 359 A.2d 697, 700 (1976).

1986Young v. Park , 116 R.I. 568, 573 , 359 A.2d 697, 700 (1976).

2016Laches An action for postconviction relief is a civil proceeding, Campbell v. State, 56 A.3d 448, 454 (R.I.2012), subject to the same rules and statutes applicable in civil proceedings and affirmative defenses available in the civil context, see § 10-9.1-7, including the affirmative defense of laches, see Santos v. State, 91 A.3d 341, 344 (R.I.2014); Raso v. Wall, 884 A.2d 391, 394 (R.I.2005). “[Ljaches is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on his or her rights to the detriment of a defendant.” Santos, 91 A.3d at 344 (quoting School Committee o

2014See Heon v. State, 19 A.3d 1225, 1225 (R.I.2010) (mem.) (citing Raso v. Wall 884 A.2d 391, 394 (R.I.2005)).

2016Indeed, we have explicitly said that “where there is evidence in the record ‘in support of any defense offered by an accused, which raises an issue of fact favorable’ to the accused, he or she is entitled to an affirmative instruction which fully and fairly states' the law applicable thereto; that principle applies regardless of how ‘slight and tenuous the evidence may be * * *.’ ” Larngar v. Wall, 918 A.2d 850, 857 (R.I.2007) (quoting State v. DiChristofaro, 848 A.2d 1127, 1129-30 (R.I.2004)).

2016Indeed, we have explicitly said that “where there is evidence in the record ‘in support of any defense offered by an accused, which raises an issue of fact favorable’ to the accused, he or she is entitled to an affirmative instruction which fully and fairly states the law applicable thereto; that principle applies regardless of how ‘slight and tenuous the evidence may be * * *.’” Larngar v. Wall, 918 A.2d 850, 857 (R.I. 2007) (quoting State v. DiChristofaro, 848 A.2d 1127, 1129-30 (R.I. 2004)).

2016Laches An action for postconviction relief is a civil proceeding, Campbell v. State, 56 A.3d 448, 454 (R.I.2012), subject to the same rules and statutes applicable in civil proceedings and affirmative defenses available in the civil context, see § 10-9.1-7, including the affirmative defense of laches, see Santos v. State, 91 A.3d 341, 344 (R.I.2014); Raso v. Wall, 884 A.2d 391, 394 (R.I.2005). “[Ljaches is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on his or her rights to the detriment of a defendant.” Santos, 91 A.3d at 344 (quoting School Committee o

2014See Heon v. State, 19 A.3d 1225, 1225 (R.I.2010) (mem.) (citing Raso v. Wall 884 A.2d 391, 394 (R.I.2005)).

2016In State v. Fetzik, 577 A.2d 990, 993 (R.I.1990), this Court considered whether an objection was raised with sufficient specificity and held that the objection and proffered supplemental instruction concerning. an affirmative defense, -that was not timely filed, was nevertheless preserved.

2015Pursuant to Rule 30 of the Superior Court Rules of Criminal Procedure, “when a defendant relies upon an affirmative defense or justification or a matter in mitigation he or she must advise the court no later than the close of evidence.” Fetzik, 577 A.2d at 992 (emphasis added).

2011See Connecticut Valley Homes of East Lyme, Inc. v. Bardsley, 867 A.2d 788, 794, 795 (R.I.2005) (judgment vacated because trial justice reopened case and then failed to exercise his “broad discretion” to consider merits of the defendant’s affirmative defense).

2007See Connecticut Valley Homes of East Lyme, Inc. v. Bardsley, 867 A.2d 788, 795 (R.I.2005) (holding that, after a trial justice sitting without a jury allowed additional evidence on defendant’s affirmative defense, but refused to allow the affirmative defense based on a perceived irregularity, the judgment was vacated and the case was remanded for a new judgment rendered in light of the affirmative defense).

2007As the state quite correctly acknowledges in its brief to this Court, where there is evidence in the record “in support of any defense offered by an accused, which raises an issue of fact favorable” to the accused, he or she is entitled to an affirmative instruction which fully and fairly states the law applicable thereto; that principle applies regardless of how “slight and tenuous the evidence may be * * State v. DiChristofaro, 848 A.2d 1127, 1129-30 (R.I.2004) (internal quotation marks omitted); see also State v. D'Amario, 568 A.2d 1383, 1385 (R.I.1990); State v. Butler, 107 R.I. 489, 496 ,

2007As the state quite correctly acknowledges in its brief to this Court, where there is evidence in the record “in support of any defense offered by an accused, which raises an issue of fact favorable” to the accused, he or she is entitled to an affirmative instruction which fully and fairly states the law applicable thereto; that principle applies regardless of how “slight and tenuous the evidence may be * * State v. DiChristofaro, 848 A.2d 1127, 1129-30 (R.I.2004) (internal quotation marks omitted); see also State v. D'Amario, 568 A.2d 1383, 1385 (R.I.1990); State v. Butler, 107 R.I. 489, 496 ,

2003The affirmative defense of assumption of the risk requires the defendants to "show that the party who is alleged to have assumed the risk [had] * * * actual knowledge of the precise risk before electing to encounter it.” Habib v. Empire Productions, Inc., 739 A.2d 662, 665 (R.I.1999) (per curiam).

2000This Court has stated previously: “ ‘The doctrine of assumption of [the] risk is an affirmative defense [that, if proven,] absolvefs] a defendant of liability for having created an unreasonable risk.’ * * * ‘A plaintiff assumes the risk of harm arising from the conduct of another when he or she knows of the existence of the risk and appreciates its unreasonable character.’ * * * ‘This is a subjective standard, keyed solely- on the observations and understandings of the plaintiff at the time of injury.’ * * * Consequently, ‘[t]he question of whether a plaintiff has assumed the risk of harm is u

2023See CACH, LLC v. Potter, 154 A.3d 939, 942 (R.I. 2017) (noting that “[i]t has been our consistent holding that arbitration is an affirmative defense and that ‘a defending party seeking arbitration must specifically plead the right to arbitrate in its answer or the defense will be deemed waived’” (quoting Soprano v. American Hardware Mutual Insurance Co., 491 A.2d 1008, 1010 (R.I. 1985))).

2019"It has been our consistent holding that arbitration is an affirmative defense and that 'a defending party seeking arbitration must specifically plead the right to arbitrate in its answer or the defense will be deemed waived.' " CACH, LLC v. Potter , 154 A.3d 939 , 942 (R.I. 2017) (quoting Soprano , 491 A.2d at 1010 ). *177 The defendants set forth four affirmative defenses in their answer to plaintiff's amended complaint: (1) failure to state a claim upon which relief can be granted; (2) accord and satisfaction; (3) estoppel; and (4) insufficiency of process.

2016Laches An action for postconviction relief is a civil proceeding, Campbell v. State, 56 A.3d 448, 454 (R.I.2012), subject to the same rules and statutes applicable in civil proceedings and affirmative defenses available in the civil context, see § 10-9.1-7, including the affirmative defense of laches, see Santos v. State, 91 A.3d 341, 344 (R.I.2014); Raso v. Wall, 884 A.2d 391, 394 (R.I.2005). “[Ljaches is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on his or her rights to the detriment of a defendant.” Santos, 91 A.3d at 344 (quoting School Committee o

2016Laches An action for postconviction relief is a civil proceeding, Campbell v. State, 56 A.3d 448, 454 (R.I.2012), subject to the same rules and statutes applicable in civil proceedings and affirmative defenses available in the civil context, see § 10-9.1-7, including the affirmative defense of laches, see Santos v. State, 91 A.3d 341, 344 (R.I.2014); Raso v. Wall, 884 A.2d 391, 394 (R.I.2005). “[Ljaches is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on his or her rights to the detriment of a defendant.” Santos, 91 A.3d at 344 (quoting School Committee o

2019Moreover, even assuming arguendo that the defense of lack of standing constitutes an affirmative defense under Rule 8(c) (even though it is not specifically mentioned therein), it is nonetheless our view that Homeland's raising said defense in its motion for summary judgment was sufficient in view of the totality of what transpired in the Superior Court. 5 See Industrial National Bank v. Peloso , 121 R.I. 305 , 309, 397 A.2d 1312 , 1314 (1979) (holding that an affirmative defense raised at summary judgment "could be interposed as a defense upon an amendment of defendant's pleadings, and we bel

2019Moreover, even assuming arguendo that the defense of lack of standing constitutes an affirmative defense under Rule 8(c) (even though it is not specifically mentioned therein), it is nonetheless our view that Homeland's raising said defense in its motion for summary judgment was sufficient in view of the totality of what transpired in the Superior Court. 5 See Industrial National Bank v. Peloso , 121 R.I. 305 , 309, 397 A.2d 1312 , 1314 (1979) (holding that an affirmative defense raised at summary judgment "could be interposed as a defense upon an amendment of defendant's pleadings, and we bel

2015Although the statute of limitations was not raised in the answer, we have “unequivocally held that the expiration of a statute of limitations is an affirmative defense that must be raised at. or before trial or it is waived.” Brown v. State, 32 A.3d 901, 913 (R.I.2011) (citing State v. Lambrechts, 585 A.2d 645, 648 (R.I.1991) (emphasis added)); see also Industrial National Bank v. Peloso, 121 R.I. 305, 308 , 397 A.2d 1312, 1313-14 (1979) (allowing an affirmative defense to be raised by way of summary judgment).

2012In response to Brown’s argument, this Court reiterated that it “has unequivocally held that the expiration of a statute of limitations is an affirmative defense that must be raised at or before trial or it is waived.” Id. at 913 .

2012See Marcotte v. Harrison, 443 A.2d 1225, 1230 (R.I.1982) (holding that, pursuant to Rule 9(c), the failure to specifically plead the non-fulfillment of a condition precedent constitutes a waiver of that defense).

2010As our high court stated "to raise the [condition precedent] issue they were first required to plead it specifically, according to Rule 9(c) of the Superior Court Rules of Civil Procedure . . . failure to specially plead the matter of conditions precedent would still constitute a waiver." Marcotte v. Harrison , 443 A.2d 1225 , 1230 (R.I. 1982). 2 As the affirmative defense was not pled as required, it was waived.

2009The Rhode Island Supreme Court discussed the concept of mitigation of damages at length: The affirmative defense of mitigation of damages is often referred to as the "doctrine of avoidable consequences." Tomaino v. Concord Oil of Newport, Inc. , 709 A.2d 1016 , 1026 (R.I. 1998).

2001The affirmative defense of mitigation of damages is often referred to as the “doctrine of avoidable consequences.” Tomaino v. Concord Oil of Newport, Inc., 709 A.2d 1016, 1026 (R.I.1998).

2003See also Hennessey v. Pyne, 694 A.2d 691, 699 (R.I.1997).

2002Thus, in the absence of an express agreement, "a defendant must prove that a plaintiff "knew of the existence of danger, and appreciated its unreasonable character and then voluntarily exposed himself [or herself] to it."' See Hennessey v. Pyne, 694 A.2d 691 , 699 (1997) (quoting Labrie v. Pace Membership Warehouse Inc., 678 A.2d 867 , 872 (R.I. 1996)).