Deck 5: Affirmative Defenses

Question 1

Consent is an affirmative defense to a claim based upon trespass to the plaintiff's real estate.

Answer 1

True

Question 2

Describe the basis for applying the res judicata doctrine as a bar to the plaintiff's lawsuit.

Answer 2

Res judicata applies to bar a claim that has already been litigated to a conclu- sion by the same parties. The doctrine also applies to claims that should have been asserted in the original action.

Question 3

DEFINE
insufficiency of process

Answer 3

A failure to follow the procedures prescribed by law for serving process on another party.

Question 4

An affirmative defense that is not raised in the defendant's answer or in a motion is waived.

Question 5

Contributory negligence is an affirmative defense to an action for battery to the plaintiff's person.

Question 6

The defense of contributory negligence has been abolished by those states that have adopted:

A) stricter requirements for proving negligence.
B) no-fault reform statutes.
C) assumption of risk as an affirmative defense.
D) the comparative fault doctrine.

Question 7

When does a cause of action accrue?

Question 8

Every cause of action is subject to a particular statute of limitations.

Question 9

Does Rule 8(c) contain a complete list of all affirmative defenses?

Question 10

DEFINE
release

Question 11

Most affirmative defenses must be proven:

A) by clear and convincing evidence.
B) beyond a reasonable doubt.
C) by a preponderance of the evidence.
D) by prima facie evidence.

Question 12

Does a release have to be in writing to be valid and enforceable and used as an affirmative defense?

Question 13

DEFINE
accord and satisfaction

Question 14

The injury caused by a civil assault for which damages are recoverable is based upon mental or emotional suffering.

Question 15

A statute of limitations ordinarily begins to run against a cause of action at the time the cause of action accrues.

Question 16

An affirmative defense overcomes the claim even though the claim is true and fully proven.

Question 17

If a bank brings an action against the defendant to enforce the repayment of a loan of money (action on a promissory note), may the defendant avoid the cause of action by showing that at the time he took the loan he was under an economic duress and the plaintiff bank took advantage of the situation?

Question 18

An award received through arbitration may be enforced through a court by having the award confirmed by the court.

Question 19

DEFINE
statute of limitations

Question 20

DEFINE
consent