October 4, 20007 Nevada Supreme Court Decision
On October 4, 2007, the Nevada Supreme Court issued one published opinion:
In CCSD v. Richardson, the Nevada Supreme Court held that the statutory cap on the award of damages against a political subdivision of the state cannot be waived. The Court held the cap is not an affirmative defense that must be pleaded.
The Court further held that where, as a sanction, affirmative defenses have been stricken, the district court may not preclude evidence relevant to the defense against the other parties prima facie case. Here, the trial did not abuse its discretion in the imposition of a discovery abuse sanction upon CCSD by striking its affirmative defenses. However, the district court did abuse its discretion in the implmentation of that sanction, because it essentially prevented CCSD from presented any evidence, even evidence to rebut the elements of Richardson's claims. The Court noted that not all of CCSD’s listed affirmative defenses actually were affirmative defenses.
The Court adopted a test to determine whether a defense is an affirmative defense: an affirmative defense raises “‘new facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all allegations in the complaint are true.’” Thus, for example, “[i]n tort actions, a defendant’s allegations that a party other than the defendant caused the plaintiff’s damages need not be set forth affirmatively because such allegations negate an essential element of the plaintiff’s claim—proximate cause.”
As someone who has practiced elsewhere, I have been surprised by what I often see listed as “affirmative” defenses, included defenses that merely challenge the factual elements of a party's claim. Presumably this is done from caution, lest a defense be deemed waived if not pleaded. Perhaps with this opinion, this practice will halt.
