affirmative defense in Wyoming

2025Accordingly, an affirmative defense “must be pleaded and raised in the lower court.” Texas Gulf Sulphur Co. v. Robles, 511 P.2d 963, 965 (Wyo. 1973). [¶81] Chesapeake pled fourteen affirmative defenses in its Answer to Morton’s first Amended Complaint.

2025Texas Gulf Sulphur Co., 511 P.2d at 965 (stating “[t]he failure to raise [an affirmative] defense was a waiver and results in its removal from the case, and further cannot be raised on appeal[.]”) (citation omitted); see also Loftus v. Romsa Const., Inc., 913 P.2d 856, 862 (Wyo. 1996) (stating “the assertion of an affirmative defense in a motion for summary judgment is not only appropriate, but is just.”).

2001Pickle v. Board of County Comm'rs of County of Platte, 764 P.2d 262, 264 (Wyo.1988) (immunity under the Wyoming Governmental Claims Act is an affirmative defense and not jurisdictional, and must be raised by answer or it is waived.).

2001Pickle, 764 P.2d at 264 (finding no prejudice in raising the affirmative defense by summary judgment).

2001Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 246, 248 , 238 P. 542, 544 (1925).

2001Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 246, 248 , 238 P. 542, 544 (1925).

2025Bank of Morrill v. Ford, 216 P. 691, 697 (Wyo. 1923) (stating “an affirmative defense must be proved by the defendant”); Younglove v. Graham and Hill, 526 P.2d 689, 693 (Wyo. 1974) (stating “the burden of proof is upon the one asserting an affirmative defense); see also Gonzales v. Pers.

1988See, e.g., Younglove v. Graham and Hill, Wyo., 526 P.2d 689, 693 (1974) (burden of proof is on one asserting an affirmative defense); Hawkeye-Security Insurance Company v. Apodaca, Wyo., 524 P.2d 874, 879 (1974) (burden of showing an exception to statute of limitations is on the one claiming the exception).

2020If the court denies the motion to dismiss and the case proceeds to trial, the accused may raise self-defense as an affirmative defense at trial. 7 See, e.g., Widdison v. State, 2018 WY 18 , ¶ 37, 410 P.3d 1205, 1217 (Wyo. 2018) (citing Drennen v. State, 2013 WY 118, ¶ 39 , 311 P.3d 116, 129 (Wyo. 2013)); Johns, ¶ 14, 409 P.3d at 1265 (citing Schmuck v. State, 2017 WY 140, ¶ 69 , 406 P.3d 286, 308 (Wyo. 2017); Haire v. State, 2017 WY 48, ¶ 25 , 393 P.3d 1304, 1311 (Wyo. 2017)). [¶41] Though the district court applied a different burden and standard of proof, 8 remand is unnecessary.

2020If the court denies the motion to dismiss and the case proceeds to trial, the accused may raise self-defense as an affirmative defense at trial. 7 See, e.g., Widdison v. State, 2018 WY 18 , ¶ 37, 410 P.3d 1205, 1217 (Wyo. 2018) (citing Drennen v. State, 2013 WY 118, ¶ 39 , 311 P.3d 116, 129 (Wyo. 2013)); Johns, ¶ 14, 409 P.3d at 1265 (citing Schmuck v. State, 2017 WY 140, ¶ 69 , 406 P.3d 286, 308 (Wyo. 2017); Haire v. State, 2017 WY 48, ¶ 25 , 393 P.3d 1304, 1311 (Wyo. 2017)). [¶41] Though the district court applied a different burden and standard of proof, 8 remand is unnecessary.

1993"Qualified or `good faith' immunity is an affirmative defense that must be pleaded by a defendant official." Harlow v. Fitzgerald, 457 U.S. 800, 815 , 102 S.Ct. 2727, 2736 , 73 L.Ed.2d 396, 408 (1982) (citing Gomez v. Toledo, 446 U.S. 635 , 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980)).

1993"Qualified or `good faith' immunity is an affirmative defense that must be pleaded by a defendant official." Harlow v. Fitzgerald, 457 U.S. 800, 815 , 102 S.Ct. 2727, 2736 , 73 L.Ed.2d 396, 408 (1982) (citing Gomez v. Toledo, 446 U.S. 635 , 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980)).

2025Texas Gulf Sulphur Co., 511 P.2d at 965 (stating “[t]he failure to raise [an affirmative] defense was a waiver and results in its removal from the case, and further cannot be raised on appeal[.]”) (citation omitted); see also Loftus v. Romsa Const., Inc., 913 P.2d 856, 862 (Wyo. 1996) (stating “the assertion of an affirmative defense in a motion for summary judgment is not only appropriate, but is just.”).

2000We resolved that question and established our precedent by saying "the assertion of an affirmative defense in a motion for summary judgment is not only appropriate, but is just." Id. at 862 .

2025If the officer is entitled to the affirmative defense of qualified immunity, the conduct of the officer is not tortious, and no vicarious liability exists on the part of the governmental entity.”) (citing DeWald v. State, 719 P.2d 643, 655 (Wyo. 1986) (Thomas, C.J., specially concurring)); see also Pennington, 2012 WY 129, ¶ 27, 286 P.3d at 146 (“Based on our holding that Sheriff Napoli is entitled to qualified immunity, the ruling against the County and the Board must also be reversed.”). [¶22] Qualified immunity “is appropriate for disposition early in a case, prior to adjudication on the me

2025If the officer is entitled to the affirmative defense of qualified immunity, the conduct of the officer is not tortious, and no vicarious liability exists on the part of the governmental entity.”) (citing DeWald v. State, 719 P.2d 643, 655 (Wyo. 1986) (Thomas, C.J., specially concurring)); see also Pennington, 2012 WY 129, ¶ 27 , 286 P.3d at 146 (“Based on our holding that Sheriff Napoli is entitled to qualified immunity, the ruling against the County and the Board must also be reversed.”). [¶22] Qualified immunity “is appropriate for disposition early in a case, prior to adjudication on the m

2024Brooks v. State, 706 P.2d 664, 667 (Wyo. 1985).

2013Because this is an affirmative defense, the defendant has the burden of producing evi-denee to support it, and the prosecution then generally has the "burden to negate this defense beyond a reasonable doubt." Olsen v. State, 2008 WY 46 , ¶ 44 n. 12, 67 P.3d 536 , 589 n. 12 (Wyo.2003), Duckett v. State, 966 P.2d 941, 948 (Wyo.1998); Brooks v. State, 706 P.2d 664, 667 (Wyo.1985).

2015Drennen, ¶24, 311 P.3d at 125 -26 (quoting State v. Flory, 40 Wyo. 184 , 276 P. 458, 462 (1929)). [¶ 83] While it is true that the State carries the burden of proving that the defendant did not act in self-defense, we have also held: A defendant must first present a prima facie case of each element of the affirmative defense before the jury is instructed on the theory, including that the victim acted as the aggressor.

2015Drennen, ¶24, 311 P.3d at 125 -26 (quoting State v. Flory, 40 Wyo. 184 , 276 P. 458, 462 (1929)). [¶ 83] While it is true that the State carries the burden of proving that the defendant did not act in self-defense, we have also held: A defendant must first present a prima facie case of each element of the affirmative defense before the jury is instructed on the theory, including that the victim acted as the aggressor.

2014See eg., Harris v. Grizzle, 599 P.2d 580, 583 (Wyo.1979); Romero v. Schulze, 974 P.2d 959, 964 (Wy.1999). [[Image here]] In response to Mr. Lavatai's equitable estoppel arguments, the State claims it had no duty to provide legal advice to an opponent and, absent an affirmative misrepresentation or concealment of facts of which it had superior knowledge, it did nothing wrong.

2005See e.g., Harris v. Grizzle, 599 P.2d 580, 583 (Wyo. 1979); Romero v. Schulze, 974 P.2d 959, 964 (Wyo. 1999). [¶16] However, the State's obligation to respond to Mr. Lavatai's interrogatories is a different matter altogether.

2014See eg., Harris v. Grizzle, 599 P.2d 580, 583 (Wyo.1979); Romero v. Schulze, 974 P.2d 959, 964 (Wy.1999). [[Image here]] In response to Mr. Lavatai's equitable estoppel arguments, the State claims it had no duty to provide legal advice to an opponent and, absent an affirmative misrepresentation or concealment of facts of which it had superior knowledge, it did nothing wrong.

2005See e.g., Harris v. Grizzle, 599 P.2d 580, 583 (Wyo. 1979); Romero v. Schulze, 974 P.2d 959, 964 (Wyo. 1999). [¶16] However, the State's obligation to respond to Mr. Lavatai's interrogatories is a different matter altogether.

2006See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (C.A.7 1984) (“It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received”).

2004See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (C.A.7 1984) (“It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually x-eceived”).

1991Co., 56 Cal.2d 202, 206-07 , 14 Cal.Rptr. 294, 296 , 363 P.2d 310, 312 (1961)).

1991Co., 56 Cal.2d 202, 206-07 , 14 Cal.Rptr. 294, 296 , 363 P.2d 310, 312 (1961)).

1991The rule generally followed is: “Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances including the nature of the actor’s conduct and the relationship between the parties. * * * Justification is an affirmative defense and may not be considered as supporting the trial court’s action in sustaining a demurrer unless it appears on the face of the complaint. * * * )) Winn v. McCulloch Corp.,

1991The rule generally followed is: “Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances including the nature of the actor’s conduct and the relationship between the parties. * * * Justification is an affirmative defense and may not be considered as supporting the trial court’s action in sustaining a demurrer unless it appears on the face of the complaint. * * * )) Winn v. McCulloch Corp.,

2026John, ¶ 40, 460 P.3d at 1134 . [¶15] In reviewing the district court’s denial of Mr. McCalla’s motion to dismiss, we view the record in the light most favorable to the district court’s decision.

2026John, ¶ 40, 460 P.3d at 1134 . [¶15] In reviewing the district court’s denial of Mr. McCalla’s motion to dismiss, we view the record in the light most favorable to the district court’s decision.

2025Three Way, Inc., ¶ 18, 177 P.3d at 225 (citing Brown v. State, 2005 WY 37, ¶ 12 , 109 P.3d 52, 56 (Wyo. 2005)). [¶76] In Harmon v. Star Valley Medical Center, we held “the presentation of a notice of claim is a condition precedent to suing a governmental entity and is not jurisdictional, [and] an assertion that a plaintiff did not comply with the WGCA and Wyoming Constitution is an affirmative defense subject to waiver.” 2014 WY 90, ¶ 51 , 331 P.3d 1174, 1188 (Wyo. 2014).

2025Three Way, Inc., ¶ 18, 177 P.3d at 225 (citing Brown v. State, 2005 WY 37, ¶ 12 , 109 P.3d 52, 56 (Wyo. 2005)). [¶76] In Harmon v. Star Valley Medical Center, we held “the presentation of a notice of claim is a condition precedent to suing a governmental entity and is not jurisdictional, [and] an assertion that a plaintiff did not comply with the WGCA and Wyoming Constitution is an affirmative defense subject to waiver.” 2014 WY 90, ¶ 51 , 331 P.3d 1174, 1188 (Wyo. 2014).

2022Sunshine Custom Paints & Body, Inc. v. South Douglas Highway Water & Sewer Dist., 2007 WY 206, ¶ 23 , 173 P.3d 398, 404 (Wyo. 2007) (quoting Restatement (Second) of Torts, § 773 (1979)) (emphasis added). [¶35] “This defense of protecting an economic interest is, in substance, an affirmative defense as to which [the HOA] has the burden of proof.” Carlson v. Carlson, 775 P.2d 478, 484 (Wyo. 1989) (citing Miller v. Badgley, 753 P.2d 530 (Wash. App. 1988)).

1989See Miller v. Badgley, 51 Wash.App. 285 , 753 P.2d 530 (1988).

2017The distinction was further explained in Smith v. United States, 568 U.S. 106, 110 , 133 S.Ct. 714, 719 , 184 L.Ed.2d 570 (2013), where the Court said: The State is foreclosed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime,” Martin v. Ohio, 480 U.S. 228, 237 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987) (Powell, J., dissenting).

2017The distinction was further explained in Smith v. United States, 568 U.S. 106, 110 , 133 S.Ct. 714, 719 , 184 L.Ed.2d 570 (2013), where the Court said: The State is foreclosed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime,” Martin v. Ohio, 480 U.S. 228, 237 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987) (Powell, J., dissenting).

2013Because this is an affirmative defense, the defendant has the burden of producing evi-denee to support it, and the prosecution then generally has the "burden to negate this defense beyond a reasonable doubt." Olsen v. State, 2008 WY 46 , ¶ 44 n. 12, 67 P.3d 536 , 589 n. 12 (Wyo.2003), Duckett v. State, 966 P.2d 941, 948 (Wyo.1998); Brooks v. State, 706 P.2d 664, 667 (Wyo.1985).

2005Id. at ¶ 56, 67 P.3d at 559 . [¶ 37] On appeal, Olsen argued that his “counsel conceded his guilt without pursuing the affirmative defense [of not guilty by reason of mental illness or deficiency].” Id. at ¶ 70, 67 P.3d at 564 .

2012See Hal[p]ern v. Wheeldon, 890 P.2d 562 (Wyo.1995) (suggesting that the WRSA embodies the principle of primary assumption of risk, which limits duty, rather than secondary assumption of risk, which is an affirmative defense to breach of duty and was abolished in Wyoming by the comparative negligence statute, W.S. § 1-1-109).

1998Halpem, 890 P.2d at 565 .

2002In those proceedings the following rules apply to the burden of production: In Evans [v. State, 655 P.2d 1214 (Wyo.1982)], we indicated that a defendant has the burden of proof when asserting an affirmative defense (such as invalidity of an underlying conviction) in an habitual criminal proceeding.

1992Evans , at 1222.