affirmative defense in Nebraska

2003In Millman v. County of Butler, 235 Neb. 915, 932 , 458 N.W.2d 207, 217 (1990), we held that a general denial included in the answer filed by a political subdivision did not raise the issue of noncompliance with the notice provision of the act which, we said, “must be raised as an affirmative defense specifically expressing the plaintiff’s noncompliance with the notice requirement of § 13-905.” Applying the same reasoning, we conclude that the general admissions and denial set forth in the *756 City’s answer in this case do not expressly raise an affirmative defense based upon noncompliance wi

2003In Millman v. County of Butler, 235 Neb. 915, 932 , 458 N.W.2d 207, 217 (1990), we held that a general denial included in the answer filed by a political subdivision did not raise the issue of noncompliance with the notice provision of the act which, we said, “must be raised as an affirmative defense specifically expressing the plaintiff’s noncompliance with the notice requirement of § 13-905.” Applying the same reasoning, we conclude that the general admissions and denial set forth in the *756 City’s answer in this case do not expressly raise an affirmative defense based upon noncompliance wi

1991STATUTE OF LIMITATIONS “ ‘A defendant alleging the statute of limitations as an affirmative defense has the burden to prove such defense.’ ” Millman v. County of Butler, 235 Neb. 915, 935 , 458 N.W.2d 207, 219 (1990) (quoting from League v. Vanice, 221 Neb. 34 , 374 N.W.2d 849 (1985)).

1991STATUTE OF LIMITATIONS “ ‘A defendant alleging the statute of limitations as an affirmative defense has the burden to prove such defense.’ ” Millman v. County of Butler, 235 Neb. 915, 935 , 458 N.W.2d 207, 219 (1990) (quoting from League v. Vanice, 221 Neb. 34 , 374 N.W.2d 849 (1985)).

2020Supp. 2018). 2 See § 81-8,212. 3 Komar v. State, 299 Neb. 301 , 908 N.W.2d 610 (2018). 4 See, § 81-8,227(1); Komar, supra note 3 . 5 § 81-8,213; Komar, supra note 3 . 6 Komar, supra note 3 . 7 See Cole v. Isherwood, 264 Neb. 985 , 653 N.W.2d 821 (2002) (superseded by rule on other grounds as stated in Weeder v. Central Comm. College, 269 Neb. 114 , 691 N.W.2d 508 (2005)). - 150 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 conditions precedent is considered an affirmative defense to be raised by the State. 8 We apply the same rules to the pre

2020Supp. 2018). 2 See § 81-8,212. 3 Komar v. State, 299 Neb. 301 , 908 N.W.2d 610 (2018). 4 See, § 81-8,227(1); Komar, supra note 3 . 5 § 81-8,213; Komar, supra note 3 . 6 Komar, supra note 3 . 7 See Cole v. Isherwood, 264 Neb. 985 , 653 N.W.2d 821 (2002) (superseded by rule on other grounds as stated in Weeder v. Central Comm. College, 269 Neb. 114 , 691 N.W.2d 508 (2005)). - 150 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 conditions precedent is considered an affirmative defense to be raised by the State. 8 We apply the same rules to the pre

2019See Maricle v. Spiegel , 213 Neb. 223 , 329 N.W.2d 80 (1983).

2019See Maricle v. Spiegel , 213 Neb. 223 , 329 N.W.2d 80 (1983).

1997Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1 , 459 N.W.2d 178 (1990); Kaspar, supra. Generally, the defense of contributory negligence has been recognized in a medical malpractice action when the patient has (1) failed to follow a medical instruction, (2) refused or neglected prescribed treatment, or (3) intentionally given erroneous, incomplete, or misleading information which is the basis for medical care or treatment of the patient.

1997Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1 , 459 N.W.2d 178 (1990); Kaspar, supra. Generally, the defense of contributory negligence has been recognized in a medical malpractice action when the patient has (1) failed to follow a medical instruction, (2) refused or neglected prescribed treatment, or (3) intentionally given erroneous, incomplete, or misleading information which is the basis for medical care or treatment of the patient.

1992“The burden of proving an affirmative defense rests upon the defendant.” Spittler v. Nicola, 239 Neb. 972, 977 , 479 N.W.2d 803, 807 (1992).

1992“The burden of proving an affirmative defense rests upon the defendant.” Spittler v. Nicola, 239 Neb. 972, 977 , 479 N.W.2d 803, 807 (1992).

1994Lynn v. Metropolitan Utilities Dist., 225 Neb. 121 , 403 N.W.2d 335 (1987); Foland v. Malander, 222 Neb. 1 , 381 N.W.2d 914 *82 (1986).

1994Lynn v. Metropolitan Utilities Dist., 225 Neb. 121 , 403 N.W.2d 335 (1987); Foland v. Malander, 222 Neb. 1 , 381 N.W.2d 914 *82 (1986).

2026See, e.g., Schuemann v. Timperley, 314 Neb. 298 , 989 N.W.2d 921 (2023); Bonness v. Armitage, 305 Neb. 747 , 942 N.W.2d 238 (2020); Strode v. City of Ashland, 295 Neb. 44 , 886 N.W.2d 293 (2016); McGill v. Lion Place Condo.

2026See, e.g., Schuemann v. Timperley, 314 Neb. 298 , 989 N.W.2d 921 (2023); Bonness v. Armitage, 305 Neb. 747 , 942 N.W.2d 238 (2020); Strode v. City of Ashland, 295 Neb. 44 , 886 N.W.2d 293 (2016); McGill v. Lion Place Condo.

2019In its responsive brief, the State “submit[ted] that [the intent to restore clause] appears to be an element of the offense rather than an affirmative defense.”17 Noting the similarity of 11 Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804 , 853 N.W.2d 1 (2014). 12 Id. 13 Hinrichsen, supra note 2 . 14 Id. 15 Patterson v. New York, 432 U.S. 197, 210 , 97 S. Ct. 2319 , 53 L.

2019In its responsive brief, the State “submit[ted] that [the intent to restore clause] appears to be an element of the offense rather than an affirmative defense.”17 Noting the similarity of 11 Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804 , 853 N.W.2d 1 (2014). 12 Id. 13 Hinrichsen, supra note 2 . 14 Id. 15 Patterson v. New York, 432 U.S. 197, 210 , 97 S. Ct. 2319 , 53 L.

1949It is also the rule that: “If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appeal in the evidence adduced for the plaintiff.” Roberts v. Carlson, 142 Neb. 851 , 8 N. W. 2d 175 .

1949It is also the rule that: “If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except in so far as the same may appeal in the evidence adduced for the plaintiff.” Roberts v. Carlson, 142 Neb. 851 , 8 N. W. 2d 175 .

2026Because it is a material element of a justification claim under § 28-1410 that the defendant would be justified under § 28-1409 in “using such force to protect himself against the injury he believes to be threatened” 19 against the one he seeks to protect, our analysis will focus primarily on whether Lopez produced sufficient evidence to raise a legally cogniza- ble claim of self-defense involving the use of deadly force under § 28-1409(4). (b) Burden of Proof and Duty to Instruct [10-12] Since justification is an affirmative defense, the defendant bears the initial burden to produce evidence

2026Because it is a material element of a justification claim under § 28-1410 that the defendant would be justified under § 28-1409 in “using such force to protect himself against the injury he believes to be threatened” 19 against the one he seeks to protect, our analysis will focus primarily on whether Lopez produced sufficient evidence to raise a legally cogniza- ble claim of self-defense involving the use of deadly force under § 28-1409(4). (b) Burden of Proof and Duty to Instruct [10-12] Since justification is an affirmative defense, the defendant bears the initial burden to produce evidence

2000Haag v. Bongers, 256 Neb. 170 , 589 N.W.2d 318 (1999); Rosberg v. Lingenfelter, 246 Neb. 85 , 516 N.W.2d 625 (1994).

2000Haag v. Bongers, 256 Neb. 170 , 589 N.W.2d 318 (1999); Rosberg v. Lingenfelter, 246 Neb. 85 , 516 N.W.2d 625 (1994).

1982Entrapment is a defense “which is in the nature of an affirmative defense . . . .” State v. Ransburg, 181 Neb. 352, 354 , 148 N.W.2d 324, 326 (1967).

1982Entrapment is a defense “which is in the nature of an affirmative defense . . . .” State v. Ransburg, 181 Neb. 352, 354 , 148 N.W.2d 324, 326 (1967).

1959"If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as the same may appear in evidence adduced for plaintiff." Meyer v. Platte Valley Const. Co., 147 Neb. 860 , 25 N.W.2d 412, 413 .

1959"If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as the same may appear in evidence adduced for plaintiff." Meyer v. Platte Valley Const. Co., 147 Neb. 860 , 25 N.W.2d 412, 413 .

1951The defendant having alleged in his answer that the proximate cause of the accident was negligence on the part of the plaintiff, the burden is upon the defendant to establish by a preponderance of the evidence any such negligence of the plaintiff and that the same was the proximate cause of, or proximately a contributing cause to, the accident." We have recently stated: "When contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as

1951The defendant having alleged in his answer that the proximate cause of the accident was negligence on the part of the plaintiff, the burden is upon the defendant to establish by a preponderance of the evidence any such negligence of the plaintiff and that the same was the proximate cause of, or proximately a contributing cause to, the accident." We have recently stated: "When contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as

2026See, e.g., Schuemann v. Timperley, 314 Neb. 298 , 989 N.W.2d 921 (2023); Bonness v. Armitage, 305 Neb. 747 , 942 N.W.2d 238 (2020); Strode v. City of Ashland, 295 Neb. 44 , 886 N.W.2d 293 (2016); McGill v. Lion Place Condo.

2020According to Bonness, the district court erred by dismissing the suit, (1) because Armitage waived the statute of limitations defense and (2) because Bonness did not discover his claims until his cancer recurred in June 2016. - 753 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports BONNESS v. ARMITAGE Cite as 305 Neb. 747 STANDARD OF REVIEW [1] When a question concerning the waiver of an affirmative defense involves the interpretation of rules of pleading, it is a question of law reviewed de novo.

1984The general demurrer admits all facts and reasonable inferences to be drawn from facts properly pleaded. *882 Also, in an action on contract, the absence of consideration is an affirmative defense to be set out in the answer, see Erftmier v. Eickhoff, 210 Neb. 726 , 316 N.W.2d 754 (1982), and the issue of consideration should not be the subject of a demurrer.

1984The general demurrer admits all facts and reasonable inferences to be drawn from facts properly pleaded. *882 Also, in an action on contract, the absence of consideration is an affirmative defense to be set out in the answer, see Erftmier v. Eickhoff, 210 Neb. 726 , 316 N.W.2d 754 (1982), and the issue of consideration should not be the subject of a demurrer.

2025Stated differently, which party in an action alleging a violation of § 48-1114(1)(d) bears the burden of proving, or disproving, the applicability of the exception in § 48-1114(2)(e)? [10-12] Statutory interpretation begins with the text, and the text is to be given its plain and ordinary meaning. 15 The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature’s intent. 16 Legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the

2025Stated differently, which party in an action alleging a violation of § 48-1114(1)(d) bears the burden of proving, or disproving, the applicability of the exception in § 48-1114(2)(e)? [10-12] Statutory interpretation begins with the text, and the text is to be given its plain and ordinary meaning. 15 The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature’s intent. 16 Legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the