139 Vermont opinions name it 2 courts 1923–2026 18 in the last five years
The cases below were cited by Vermont courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
State v. Bakergreen2 sentences2019Id. (“Once a defendant has satisfied the initial burden of production for the defense, the burden then shifts to the State to disprove self-defense beyond a reasonable doubt.” (quotation omitted)); see also State v. Baker, 154 Vt. 411, 414 , 579 A.2d 479, 480 (1990) (noting that “defendant carries the burden of production . . . and must establish a prima facie case on each of the elements of the affirmative defense”). 2019Id. (“Once a defendant has satisfied the initial burden of production for the defense, the burden then shifts to the State to disprove self-defense beyond a reasonable doubt.” (quotation omitted)); see also State v. Baker, 154 Vt. 411, 414 , 579 A.2d 479, 480 (1990) (noting that “defendant carries the burden of production . . . and must establish a prima facie case on each of the elements of the affirmative defense”). | 5 | 5 |
State v. Wilkinsgreen2 sentences2025See id. § 4801(b) (providing that “defendant shall have the burden of proof in establishing insanity as an affirmative defense by a preponderance of the evidence”); State v. Wilkins, 144 Vt. 22, 25 , 473 A.2d 295, 296 (1983) (explaining that “defendant has the burden of establishing the affirmative defense of entrapment only by a preponderance of the evidence”). 2025See id. § 4801(b) (providing that “defendant shall have the burden of proof in establishing insanity as an affirmative defense by a preponderance of the evidence”); State v. Wilkins, 144 Vt. 22, 25 , 473 A.2d 295, 296 (1983) (explaining that “defendant has the burden of establishing the affirmative defense of entrapment only by a preponderance of the evidence”). | 3 | 4 |
My Sister's Place v. City of Burlingtongreen2 sentences2019See My Sister's Place v. City of Burlington , 139 Vt. 602 , 608, 433 A.2d 275 , 279 (1981) (stating that "sovereign immunity is not considered an affirmative defense in Vermont"). 8 One notable difference is that the FTCA provides that the government is liable "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674 (emphasis added), while the VTCA makes the State liable "under the same circumstances, in the same manner, and to the same extent as a private person would be liable," 12 V.S.A. § 5601(a) (emphasis added). 2019See My Sister's Place v. City of Burlington , 139 Vt. 602 , 608, 433 A.2d 275 , 279 (1981) (stating that "sovereign immunity is not considered an affirmative defense in Vermont"). 8 One notable difference is that the FTCA provides that the government is liable "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674 (emphasis added), while the VTCA makes the State liable "under the same circumstances, in the same manner, and to the same extent as a private person would be liable," 12 V.S.A. § 5601(a) (emphasis added). | 3 | 3 |
Irby v. Bittickgreen2 sentences2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries 14 historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). 2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). | 3 | 3 |
Town of Shelburne v. Kaelingreen2 sentences2011See 24 V.S.A § 4303(15); cf. Town of Shelburne v. Kaelin, 136 Vt. 248 , 251–52 (1978) (indicating that the argument that a use is a preexisting nonconformity can be an affirmative defense to an allegation that the party’s property use violates an ordinance provision and concluding that the party asserting that defense bears the burden of establishing its elements); 4 E. 1980Town of Waterford v. Pike Industries, Inc., 135 Vt. 193, 195-96 , 373 A.2d 528, 530 (1977). ' As this Court stated in the prior appeal, Town of Shelburne v. Kaelin, supra, 136 Vt. at 252 , 388 A.2d at 400 , the burden of proving the elements of a nonconforming use, and, more specifically, that the appellant’s use complied with any regulations existing prior to the adoption of the new zoning regulations in 1974, was on the appellant who asserted this as an affirmative defense at trial. | 2 | 4 |
State v. Onix Fonseca-Cintrongreen2 sentences2025See State v. 9 Fonseca-Citron, 2019 VT 80, ¶ 10 , 213 Vt. 11 , 238 A.3d 594 (explaining defendant’s burden of production for affirmative defense). 2024The trial court’s “obligation to charge on a defendant’s theory is limited to situations in which there is evidence supporting the theory.” State v. Nunez, 162 Vt. 615, 617 (1994); see also State v. Fonseca-Cintron, 2019 VT 80, ¶ 10 (“A trial court must provide the jury with an instruction on an affirmative defense when the evidence supports that defense.”). | 2 | 2 |
Wursthaus, Inc. v. Cerretagreen2 sentences2025Wursthaus, Inc. v. Cerreta, 149 Vt. 54, 57 (1987). 1994Wursthaus, Inc. v. Cerreta, 149 Vt. 54, 57 , 539 A.2d 534, 536 (1987); see V.R.C.P. 8(c). | 2 | 2 |
State v. Nunezgreen2 sentences2024The trial court’s “obligation to charge on a defendant’s theory is limited to situations in which there is evidence supporting the theory.” State v. Nunez, 162 Vt. 615, 617 (1994); see also State v. Fonseca-Cintron, 2019 VT 80, ¶ 10 (“A trial court must provide the jury with an instruction on an affirmative defense when the evidence supports that defense.”). 2019State v. Nunez, 162 Vt. 615, 617 , 647 A.2d 1007, 1009 (1994) (mem.) (“A court’s obligation to charge on a defendant’s theory is limited to situations in 4 which there is evidence supporting the theory.”); State v. Drown, 148 Vt. 311, 312 , 532 A.2d 575, 576 (1987) (per curiam) (“A defendant is entitled to have the court present a defense based on the evidence to the jury squarely, that they might confront it, consider it, and resolve its truth or falsity by their verdict.” (quotation omitted)). | 2 | 2 |
Preston v. Chabotgreen2 sentences2022Unreasonable delay is an affirmative defense, “and the burden is on the party relying on it.” Preston v. Chabot, 138 Vt. 170, 172 , 412 A.2d 930, 931 (1980). 2022Unreasonable delay is an affirmative defense, “and the burden is on the party relying on it.” Preston v. Chabot, 138 Vt. 170, 172 , 412 A.2d 930, 931 (1980). | 2 | 2 |
State v. Woodgreen2 sentences2021State v. Buckley, 2016 VT 59, ¶ 13 , 202 Vt. 371 , 149 A.3d 928 ; see also State v. Wood, 53 Vt. 560, 561 (1881) (quoting charge to jury relating to self-defense). 2021State v. Buckley, 2016 VT 59, ¶ 13 , 202 Vt. 371 , 149 A.3d 928 ; see also State v. Wood, 53 Vt. 560, 561 (1881) (quoting charge to jury relating to self-defense). | 2 | 2 |
John R. Sand & Gravel Co. v. United Statesgreen2 sentences2018Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (“[T]he law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver.”). 2018Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (“[T]he law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver.”). | 2 | 2 |
Coty v. Ramsey Associates, Inc.green2 sentences2018See Coty v. Ramsey Assocs., Inc. , 149 Vt. 451 , 469, 546 A.2d 196 , 208 (1988) (declining to consider argument that party lacked standing to sue in name of business because business was not registered pursuant to § 1621 because "it constitutes an affirmative defense which was not raised specifically and in a timely manner"); Senesac v. Duclos , 128 Vt. 601 , 603, 270 A.2d 156 , 158 (1970) (noting that challenge to standing based on failure to register is affirmative defense that should have been pleaded or else it was waived); V.R.C.P. 12(b) (requiring affirmative defenses to be pled in answe 2018See Coty v. Ramsey Assocs., Inc. , 149 Vt. 451 , 469, 546 A.2d 196 , 208 (1988) (declining to consider argument that party lacked standing to sue in name of business because business was not registered pursuant to § 1621 because "it constitutes an affirmative defense which was not raised specifically and in a timely manner"); Senesac v. Duclos , 128 Vt. 601 , 603, 270 A.2d 156 , 158 (1970) (noting that challenge to standing based on failure to register is affirmative defense that should have been pleaded or else it was waived); V.R.C.P. 12(b) (requiring affirmative defenses to be pled in answe | 2 | 2 |
Gilbert v. Town of Brookfieldgreen2 sentences2018See Gilbert v. Town of Brookfield, 134 Vt. 251, 254 (1976); Gardner v. Gauthier, 101 Vt. 147 (1928). 1985Gilbert v. Town of Brookfield, 134 Vt. 251, 254 , 356 A.2d 524, 526 (1976); Abbadessa v. Tegu, 122 Vt. 345, 349 , 173 A.2d 581, 584 (1961). | 2 | 2 |
Palmisano v. Townsendgreen2 sentences2018Moreover, “comparative negligence is an affirmative defense which must be pleaded under V.R.C.P. 8(c).” Palmisano v. Townsend, 136 Vt. 372, 374 (1978); see also Reporter’s Notes, V.R.C.P. 8(c). 1985Moreover, unless an affirmative defense is specifically raised, in the:pleadings, it is not generally available at trial or on appeal. *453 Palmisano v. Townsend, 136 Vt. 372, 374 , 392 A.2d 393, 394-95 (1978). | 2 | 2 |
Sheila Ann Glenn, Patricia F. Johns, and Robbie Nugent v. General Motors Corporation, Saginaw Steering Gear Divisiongreen2 sentences2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries 14 historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). 2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). | 2 | 2 |
Sharon L.R. MAXWELL, Plaintiff-Appellee, v. CITY OF TUCSON, Defendant-Appellantgreen2 sentences2015An employee may rebut the employer’s affirmative defense “with evidence that the employer intended to discriminate, and that the affirmative defense claimed is merely a pretext for discrimination.” Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986). 2015An employee may rebut the employer’s affirmative defense “with evidence that the employer intended to discriminate, and that the affirmative defense claimed is merely a pretext for discrimination.” Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986). | 2 | 2 |
Brenda Buntin, Plaintiff-Appellant/cross-Appellee v. Breathitt County Board of Education, Defendants-Appellees/cross-Appellantsgreen2 sentences2015Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998). 2015Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998). | 2 | 2 |
State v. Westgreen2 sentences2007Many other jurisdictions similarly hold that "when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant's burden to claim it as an affirmative defense." People v. Reed, 932 P.2d 842, 844 (Colo. Ct. App. 1996) (collecting cases); see also, e.g., State v. West, 929 S.W.2d 239, 242 (Mo. Ct. App. 1996) ("where the exception is found in a separate clause or part of the statute disconnected from the definition of the offense, the exception is not for the prosecution to negate, but for the defendant to claim as a matter of affir 2007Many other jurisdictions similarly hold that “when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant’s burden to claim it as an affirmative defense.” People v. Reed, 932 P.2d 842, 844 (Colo. Ct. App. 1996) (collecting cases); see also, e.g., State v. West, 929 S.W.2d 239, 242 (Mo. Ct. App. 1996) (“where the exception is found in a separate clause or part of the statute disconnected from the definition of the offense, the exception is not for the prosecution to negate, but for the defendant to claim as a matter of affir | 2 | 2 |
People v. Reedgreen2 sentences2007Many other jurisdictions similarly hold that "when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant's burden to claim it as an affirmative defense." People v. Reed, 932 P.2d 842, 844 (Colo. Ct. App. 1996) (collecting cases); see also, e.g., State v. West, 929 S.W.2d 239, 242 (Mo. Ct. App. 1996) ("where the exception is found in a separate clause or part of the statute disconnected from the definition of the offense, the exception is not for the prosecution to negate, but for the defendant to claim as a matter of affir 2007Many other jurisdictions similarly hold that “when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant’s burden to claim it as an affirmative defense.” People v. Reed, 932 P.2d 842, 844 (Colo. Ct. App. 1996) (collecting cases); see also, e.g., State v. West, 929 S.W.2d 239, 242 (Mo. Ct. App. 1996) (“where the exception is found in a separate clause or part of the statute disconnected from the definition of the offense, the exception is not for the prosecution to negate, but for the defendant to claim as a matter of affir | 2 | 2 |
White Current v. State, Agency of Transp.green2 sentences1996As support for this proposition, plaintiff cites White Current Corp. v. State, 140 Vt. 290, 292 , 438 A.2d 393, 394 (1981), which states, “The affirmative defenses of estoppel and statute of limitations . . . are unavailable for consideration on a motion to dismiss pursuant to V.R.C.P 12(b)(6).” Regarding the statute of limitations defense, the quoted portion of White Current is dicta because that case involved only the affirmative defense of estoppel. 1996As support for this proposition, plaintiff cites White Current Corp. v. State, 140 Vt. 290, 292 , 438 A.2d 393, 394 (1981), which states, “The affirmative defenses of estoppel and statute of limitations . . . are unavailable for consideration on a motion to dismiss pursuant to V.R.C.P 12(b)(6).” Regarding the statute of limitations defense, the quoted portion of White Current is dicta because that case involved only the affirmative defense of estoppel. | 2 | 2 |
| Brouha v. Postmangreen | 2 | 2 |
| In Re Leegreen | 2 | 2 |
United States v. McArthurgreen2 sentences2007Id. at 1356 . 2005See United States v. McArthur, 108 F.3d 1350, 1353 (11th Cir. 1997) (“a narrow proviso to a more general statutory offense is more likely to be an affirmative defense than an element of the offense.”). | 1 | 3 |
Merrilees v. TREASURER, State of Vermontgreen2 sentences2003See Merrilees, 159 Vt. at 623 , 618 A.2d at 1315 (this Court may raise the affirmative defense of res judicata sua sponte and for the first time on appeal, so long as the parties are given an opportunity to fully brief the issue); City of Burlington v. Mountain Cable Co., 151 Vt. 161, 163 , 559 A.2d 153, 154 (1988) (this Court will recognize unraised affirmative defense of illegality and deny relief if the illegality is “of a serious nature”). 2003See Merrilees, 159 Vt. at 623 , 618 A.2d at 1315 (this Court may raise the affirmative defense of res judicata sua sponte and for the first time on appeal, so long as the parties are given an opportunity to fully brief the issue); City of Burlington v. Mountain Cable Co., 151 Vt. 161, 163 , 559 A.2d 153, 154 (1988) (this Court will recognize unraised affirmative defense of illegality and deny relief if the illegality is “of a serious nature”). | 1 | 2 |
Senesac v. Duclosgreen2 sentences2018See Coty v. Ramsey Assocs., Inc. , 149 Vt. 451 , 469, 546 A.2d 196 , 208 (1988) (declining to consider argument that party lacked standing to sue in name of business because business was not registered pursuant to § 1621 because "it constitutes an affirmative defense which was not raised specifically and in a timely manner"); Senesac v. Duclos , 128 Vt. 601 , 603, 270 A.2d 156 , 158 (1970) (noting that challenge to standing based on failure to register is affirmative defense that should have been pleaded or else it was waived); V.R.C.P. 12(b) (requiring affirmative defenses to be pled in answe 2018See Coty v. Ramsey Assocs., Inc. , 149 Vt. 451 , 469, 546 A.2d 196 , 208 (1988) (declining to consider argument that party lacked standing to sue in name of business because business was not registered pursuant to § 1621 because "it constitutes an affirmative defense which was not raised specifically and in a timely manner"); Senesac v. Duclos , 128 Vt. 601 , 603, 270 A.2d 156 , 158 (1970) (noting that challenge to standing based on failure to register is affirmative defense that should have been pleaded or else it was waived); V.R.C.P. 12(b) (requiring affirmative defenses to be pled in answe | 1 | 2 |
Lillicrap v. Martingreen2 sentences2017Otherwise, the defense is waived.” Lillicrap v. Martin, 156 Vt. 165, 170 (1989) (citation omitted). 2003Lillicrap, 156 Vt. at 170-71 , 591 A.2d at 44 . | 1 | 2 |
State v. Messiergreen2 sentences1996In State v. Messier, 145 Vt. 622 , 497 A.2d 740 (1985), we responded to a similar argument regarding the affirmative defense of insanity. 1996In State v. Messier, 145 Vt. 622 , 497 A.2d 740 (1985), we responded to a similar argument regarding the affirmative defense of insanity. | 1 | 2 |
| Patterson v. New Yorkgreen | 1 | 2 |
| Mitchell v. Aldrichgreen | 1 | 2 |
| Couture v. Lowerygreen | 1 | 2 |
| Frigon v. Whipplegreen | 1 | 2 |
| State v. Ben-Mont Corporationgreen | 1 | 1 |
| Jane Doe v. Victoria Camachogreen | 1 | 1 |
| Melody Home Manufacturing Co. v. Barnesgreen | 1 | 1 |
| Jordan v. Nissan North America, Inc.green | 1 | 1 |
| James W. Adair v. Michael L. Sherman and Sherman & Shermangreen | 1 | 1 |
| State v. Ovittgreen | 1 | 1 |
| Vineyard Brands, Inc. v. Oak Knoll Cellargreen | 1 | 1 |
| Ricci v. Teamsters Union Local 456green | 1 | 1 |
| Resnik v. Morgansterngreen | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Vermont. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
State v. David G. Buckley
green
2 sentences2021State v. Buckley, 2016 VT 59, ¶ 13 , 202 Vt. 371 , 149 A.3d 928 ; see also State v. Wood, 53 Vt. 560, 561 (1881) (quoting charge to jury relating to self-defense). 2021State v. Buckley, 2016 VT 59, ¶ 13 , 202 Vt. 371 , 149 A.3d 928 ; see also State v. Wood, 53 Vt. 560, 561 (1881) (quoting charge to jury relating to self-defense). | 2 | 2021–2021 |
Gardner v. Gauthier Et Ux.
green
2 sentences1933An election of remedies is an affirmative defense which must be pleaded and proved by the defendant, Gardner v. Gauthier et ux., 101 Vt. 147 , 141 Atl. 682 , unless such requirements are waived. 1933An election of remedies is an affirmative defense which must be pleaded and proved by the defendant, Gardner v. Gauthier et ux., 101 Vt. 147 , 141 Atl. 682 , unless such requirements are waived. | 2 | 1933–2018 |
cluster 410224
green
2 sentences2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries 14 historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). 2015Other courts have recognized that the use of a prior salary as part of an employer’s affirmative defense can be problematic in that it “can easily be used to capitalize on the unfairly low salaries historically paid to women.” Kouba, 691 F.2d at 876 ; see Irby, 44 F.3d at 955 (explaining that use of prior salary as exception can perpetuate inequality of pay among genders and refusing to rely solely on prior salary as justification for pay disparity); Glenn, 841 F.2d at 1571 (rejecting assertion that prior salary can be “factor other than sex” under federal equal pay act). | 2 | 2015–2015 |
State v. McCaffrey
green
2 sentences2007We came to a similar conclusion in State v. McCaffrey, 69 Vt. 85 , 37 A. 234 (1896). 2007We came to a similar conclusion in State v. McCaffrey, 69 Vt. 85 , 37 A. 234 (1896). | 2 | 2007–2007 |
Price Waterhouse v. Hopkins
red
2 sentences1994The plurality also held that the employer’s burden “is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to prevail, must persuade it on another.” Id. at 246 ; see also NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983) (when employee has proved that his union activity was substantial or motivating factor in his discharge, employer’s proof that it would have discharged employee in absence of union activity and for valid reasons “amounted to an affirmative defense on which the employer ca 1992Id. at 246 . | 2 | 1992–1994 |
| McAllister v. Benjamin green | 2 | 1923–1923 |
| Rainforest Chocolate, LLC v. Sentinel Insurance Company, Ltd. green | 1 | 2025–2025 |
| State v. James Menize green | 1 | 2025–2025 |
| State of Vermont Agency of Natural Resources v. Parkway Cleaners green | 1 | 2025–2025 |
| Barber v. LaFromboise green | 1 | 2025–2025 |
| Skaskiw and Vermont Volunteer Services for Animals Humane Society green | 1 | 2024–2024 |
| cluster 3165524 green | 1 | 2021–2021 |
| Vermont Human Rights Commission v. State, Department of Corrections & Department of Human Services green | 1 | 2021–2021 |
| In Re Moulton green | 1 | 2020–2020 |
| United States v. Olson green | 1 | 2019–2019 |
| County of Tioga v. Solid Waste Industries Inc. green | 1 | 2019–2019 |
| Brown v. State green | 1 | 2019–2019 |
| State v. Cameron Albarelli green | 1 | 2019–2019 |
| Brown v. State neutral | 1 | 2019–2019 |
| Begin v. Richmond green | 1 | 2014–2014 |
| California Maryland Funding, Inc. v. Lowe green | 1 | 2014–2014 |
| State v. DeLaBruere green | 1 | 2013–2013 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.