affirmative defense in Iowa

2026But as the State asserts “justification is an affirmative defense rather than an element.” See State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982) (emphasis added); see also White v. Harkrider, 990 N.W.2d 647 , 656 (Iowa 2023) (listing cases describing justification as an affirmative defense).

2025It is not.”); see also Thompson, 836 N.W.2d at 477-78 (defendant bears burden of establishing factual basis to submit voluntary manslaughter jury instruction); State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982) (“There is no burden on the State to negate an affirmative defense unless the defendant meets his initial burden by producing sufficient evidence that the defense applies.”).

2026A statute of limitations defense “is primarily an affirmative defense to be specially asserted in a separate division of the responsive pleading to the claim for relief.” Pride v. Peterson, 173 N.W.2d 549, 554 (Iowa 1970).

2016A statute of limitations defense “is primarily an affirmative defense to be specially asserted in a separate division of the responsive pleading to the claim for relief.” Pride v. Peterson, 173 N.W.2d 549, 554 (Iowa 1970).

2025“Failure to plead an affirmative defense normally results in waiver of the defense, unless the issue is tried with the consent of the parties.” Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996).

2019“Failure to plead an affirmative defense 2 Written authorizations filed by the officers were uploaded but may not have been formally admitted. 7 normally results in waiver of the defense, unless the issue is tried with the consent of the parties.” Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996).

2025Bank v. Baird, 346 N.W.2d 1, 4 (Iowa 1984) (“In determining what matters must be pleaded as affirmative defenses, we have previously defined an affirmative defense as ‘one resting on facts not necessary to support plaintiffs’ case.’ ” (quoting Baker v. Beal, 225 N.W.2d 106, 114 (Iowa 1975))). 9 candidates.

1990In discussing this rule we have defined an affirmative defense as “one resting on facts not necessary to support plaintiffs’ case.” Foods, Inc. v. Leffler, 240 N.W.2d 914, 920 (Iowa 1976) (quoting Baker v. Beal, 225 N.W.2d 106, 114 (Iowa 1975) and Henschel v. Hawkeye-Security Ins.

2024Id.; accord Ziel v. Energy Panel Structures, Inc., No. 19-0508, 2020 WL 4498064 , at *7 (Iowa Ct. App. Aug. 5, 2020) (relying on Erickson to conclude that a “contractual provision waiving liability for negligence and limiting an injured party’s remedies is not an affirmative defense” the defendant had to plead in its answer); Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994) (determining that the defendant’s civil immunity for exercising a First Amendment 7 right to petition for governmental action “is not an affirmative defense,” but rather an issue for “the plaintiffs to r

2015If not taken advantage of by demurrer or answer, it will be deemed waived.”); see generally Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994) (“We have defined an affirmative defense as ‘one resting on facts not necessary to support plaintiff’s case.’ Under Iowa rule of civil procedure 101 these matters must be specially pleaded, and a motion for directed verdict or a motion for judgment notwithstanding the verdict do not qualify as special pleadings.

2026That said, our supreme court has required only that the defense “must be affirmatively asserted by a responsive pleading.” Davis v. State, 443 N.W.2d 707, 708 (Iowa 1989); see also Iowa R.

2016Davis v. State, 443 N.W.2d 707, 708 (Iowa 1989).

2024See State v. Bailey, 2 N.W.3d 429 , 435 (Iowa 2024) (requiring a criminal defendant to present sufficient facts to invoke an affirmative defense to extortion); State v. Wilt, 333 N.W.2d 457, 463 (Iowa 1983) (requiring a criminal defendant to present sufficient facts to invoke a statutory exception to criminal gambling).

2024State v. Bailey, 2 N.W.3d 429 , 435 (Iowa 2024) (requiring a criminal defendant to present sufficient facts to invoke an affirmative defense to extortion); State v. Wilt, 333 N.W.2d 457, 463 (Iowa 1983) (requiring a criminal defendant to present sufficient facts to invoke a statutory exception to criminal gambling).

2002An affirmative defense is “ ‘one resting on facts not necessary to support plaintiffs case.’ ” Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994) (quoting Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992)).

2002An affirmative defense is "`one resting on facts not necessary to support plaintiff's case.'" Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994) (quoting Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992)).

1998Johnson v. Ward, 265 N.W.2d 746, 749 (Iowa 1978) (citing Bickford v. American Interinsurance Exchange, 224 N.W.2d 450, 453-54 (Iowa 1974)).

1975In Bickford v. American Interinsurance Exchange, 224 N.W.2d 450, 454 (Iowa 1974) we said: “[RJesearch discloses a great number of state jurisdictions where * * * appellate courts of those jurisdictions have held that unless the fact and nature of the prior adjudication affirmatively ap *532 pear on the face of the complaint or petition res judicata is an affirmative defense to be asserted by answer and cannot be raised by motion to dismiss.

1994In the belief that the doctrine is an affirmative defense, the plaintiffs contend CRTV did not preserve error on the question in accordance with Iowa rule of civil procedure 101. 1 We have defined an affirmative defense as “one resting on facts not necessary to support plaintiffs ease.” Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992); Foods, Inc. v. Leffler, 240 N.W.2d 914, 920 (Iowa 1976).

1990In discussing this rule we have defined an affirmative defense as “one resting on facts not necessary to support plaintiffs’ case.” Foods, Inc. v. Leffler, 240 N.W.2d 914, 920 (Iowa 1976) (quoting Baker v. Beal, 225 N.W.2d 106, 114 (Iowa 1975) and Henschel v. Hawkeye-Security Ins.

1984An affirmative defense is “ ‘one resting on facts not necessary to support plaintiffs case.’ ” Henschel v. Hawkeye-Security Insurance Co., 178 N.W.2d 409, 420 (Iowa 1970).

1976We define an affirmative defense as “one resting on facts not necessary to support plaintiffs’ case.” Baker v. Beal, 225 N.W.2d 106, 114 (Iowa 1975); Henschel v. Hawkeye-Security Insurance Company, 178 N.W.2d 409, 420 (Iowa 1970).

2020See, e.g., Baldwin v. City of Estherville, 915 N.W.2d 259, 280 (Iowa 2018) (“Because the question is one of immunity, the burden of proof should be on the defendant.

2019Id. at 281 .

2020See State v. Gibbs, 239 N.W.2d 866, 869 (Iowa 1976) (stating that unless a defendant introduces evidence to show a valid prescription exists, the State need not assume the burden of negating the exception).

1981If it was an affirmative defense, however, the State was not required to go forward with evidence to negate the alternative method of instruction until defendants introduced sufficient evidence to show that the defense *63 was applicable. 1 Id. at 868 ; State v. Morris, 227 N.W.2d 150, 154 (Iowa 1975).

2024See State v. Bailey, 2 N.W.3d 429 , 435 (Iowa 2024) (requiring a criminal defendant to present sufficient facts to invoke an affirmative defense to extortion); State v. Wilt, 333 N.W.2d 457, 463 (Iowa 1983) (requiring a criminal defendant to present sufficient facts to invoke a statutory exception to criminal gambling).

2024State v. Bailey, 2 N.W.3d 429 , 435 (Iowa 2024) (requiring a criminal defendant to present sufficient facts to invoke an affirmative defense to extortion); State v. Wilt, 333 N.W.2d 457, 463 (Iowa 1983) (requiring a criminal defendant to present sufficient facts to invoke a statutory exception to criminal gambling).

2021Thus, we will not consider either claim on appeal.” (internal footnote and citation omitted)); see also Heartland Co- op Co. v. Murphy, No. 15-0446, 2016 WL 5408302 , at *5 (Iowa Ct. App. Sept. 28, 2016) (noting “[t]he vague and solitary invocation that the contracts were ‘contrary to law’ is not enough to preserve error on a claim for lack of consideration” and “the district court never ruled upon this affirmative defense” (citing Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))).

2016See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”).

2020P. 1.419 (requiring affirmative defenses to be “specially pleaded”); Earl v. Clark, 219 N.W.2d 487, 491 (Iowa 1974) (holding the statute of limitations is an affirmative defense and the burden of proving the defense is on the pleader).

2019See Earl v. Clark, 219 N.W.2d 487, 491 (Iowa 1974) (“This court has held the statute of limitations is an affirmative defense and the burden of proof is upon the pleader.”).

2018“We consistently have ruled, on common-law grounds, that an affirmative defense places the burden of going forward with evidence, or production, on the defendant, but leaves the burden of persuasion on the prosecution.” State v. Wilt, 333 N.W.2d 457, 462 (Iowa 1983); accord State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997).

2018“We consistently have ruled, on common-law grounds, that an affirmative defense places the burden of going forward with evidence, or production, on the defendant, but leaves the burden of persuasion on the prosecution.” State v. Wilt, 333 N.W.2d 457, 462 (Iowa 1983); accord State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997).

2022As a result, “[i]nstructing on assumed risk elements as a separate affirmative defense results in duplicitous instructions on a single aspect of the case.” Rosenau, 199 N.W.2d at 132-33.

1989In this sense, assumption of risk is an affirmative defense to an established breach of duty. 199 N.W.2d 125, 131 (Iowa 1972).

2014See, e.g., Armstrong v. City of Des Moines, 232 Iowa 711, 715 , 6 N.W.2d 287, 289 (1942) (“The plea of the statute of limitations is an affirmative defense and the burden of proof is upon the pleader.”).

2014See, e.g., Armstrong v. City of Des Moines, 232 Iowa 711, 715 , 6 N.W.2d 287, 289 (1942) (“The plea of the statute of limitations is an affirmative defense and the burden of proof is upon the pleader.”).

1995Reeves v. Beekman, 256 Iowa 263, 270 , 127 N.W.2d 95, 99 (1964).

1995Reeves v. Beekman, 256 Iowa 263, 270 , 127 N.W.2d 95, 99 (1964).

2025In Barreca, our supreme court noted that its past cases “sometimes characterized [the] qualified privilege doctrine” as follows: A qualified privilege exists with respect to statements that are otherwise defamatory if the following elements exist: (1) the statement was made in good faith; (2) the defendant had an interest 13 to uphold; (3) the scope of the statement was limited to the identified interest; and (4) the statement was published on a proper occasion, in a proper manner, and to proper parties only. 683 N.W.2d at 118 (quoting Winckel v. Von Maur, Inc., 652 N.W.2d 453, 458 (Iowa 2002)

2021Qualified privilege is an affirmative defense against a defamation claim that requires the court to first “determine whether the occasion of [the] statement was qualifiedly privileged” and, if it was, to then “determine[] whether that privilege was abused.” Barreca, 683 N.W.2d at 118 .

2026See White v. Harkrider, 990 N.W.2d 647 , 656 (Iowa 2023) (characterizing justification for use of force under § 804.8 as “an affirmative defense to assault that the defendants must plead and prove”); see also Williams v. City of Burlington, 516 F. Supp. 3d 851 , 873 (S.D.

2026But as the State asserts “justification is an affirmative defense rather than an element.” See State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982) (emphasis added); see also White v. Harkrider, 990 N.W.2d 647 , 656 (Iowa 2023) (listing cases describing justification as an affirmative defense).

2025Bank, 952 N.W.2d 292 , 299 (Iowa 2020)). 17 The petition alleges that the State’s failure to maintain the area around the warning signs on the river was not a decision or considered choice but rather the result of inattention.

2023Benskin, 952 N.W.2d at 299 (“A defendant may raise the statute of limitations by a motion to dismiss if it is obvious from the uncontroverted facts contained in the petition that the applicable statute of limitations bars the plaintiff’s claim for relief.” (quoting Venckus v. City of Iowa City, 930 N.W.2d 792, 809 (Iowa 2019))); see also Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 575 (Iowa 2018) (“[A] plaintiff may plead himself out of court by alleging facts that provide the [defendant] with a bulletproof defense and foreclose application of equitable tolling,” which is generally a fact-

2020Lemartec asserts that res judicata is an affirmative defense “to be asserted by answer and cannot be raised by a motion to dismiss.” Bertran v. Glens Falls Ins., 232 N.W.2d 527, 532 (Iowa 1975) (quoting Bickford v. Am.

2020Lemartec asserts that res judicata is an affirmative defense “to be asserted by answer and cannot be raised by a motion to dismiss.” Bertran v. Glens Falls Ins., 232 N.W.2d 527, 532 (Iowa 1975) (quoting Bickford v. Am.

2018Id. at 164 (citing Shaw v. State , 861 P.2d 566 , 572 (Alaska 1993) ).

2016See Shaw, 861 P.2d at 572 .

2017The two opinions also hold an employer cannot assert the affirmative defense recognized for vicarious liability claims in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 , 118 S.Ct. 2275, 2292-93 , 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 , 118 S.Ct. 2257, 2270 , 141 L.Ed.2d 633 (1998), when defending a negligence action.

2017The two opinions also hold an employer cannot assert the affirmative defense recognized for vicarious liability claims in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 , 118 S.Ct. 2275, 2292-93 , 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 , 118 S.Ct. 2257, 2270 , 141 L.Ed.2d 633 (1998), when defending a negligence action.