It’s always good to have a set of tools (or filings) ready to defend yourself when you’re sued. A motion for extension of time, motion to dismiss, an answer, or even a counterclaim will do. However, a set of affirmative defenses is the biggest, “It wasn’t my fault!” tools you can have. If something was beyond your control, you might be able to assert the affirmative defenses of intervening acts, frustration of purpose, impossibility of performance, impracticability, or force majeure.
This article will present an overview of affirmative defenses and provide insights on intervening acts, frustration of purpose, impossibility of performance, impracticability, and force majeure.
Overview of Affirmative Defenses
Typically filed with the answer, affirmative defenses are a way to show that you have an excuse for the behavior or lack of behavior that caused harm to the plaintiff. If proven, an affirmative defense might defeat the claim against you or lessen its consequences. If you don’t raise affirmative defenses with your answer, you may lose the chance to argue them later.
When you get a complaint, you have time to respond. You may have ten days, but most often you’ll have twenty or thirty. At that point, you can move for an extension of time. Or, you can move to dismiss, answer the complaint or do all of these things. You can also work on your affirmative defenses while you’re doing all those other things.
To assert affirmative defenses, list every defense or legal reason why, even if the facts are true, you should not have to pay damages. Refer to statutes, appellate cases, and jury instructions to determine elements of each defense. If any facts match the elements, list the defense, even if the connection is loose. Number each affirmative defense.
Intervening or Superseding Act
A defendant might argue that the plaintiff’s injury was not due to the defendant’s negligence. He can assert that an unforeseeable act caused the injury. If the intervening act is extraordinary, not foreseeable, or independent of the defendant’s conduct, it may supersede defendant’s behavior.
Example: Bennie rented a car from Fast Auto Rental for his trip from Oakland, CA to San Diego, CA. Halfway to San Diego, a sensor on the car indicated that the hood was up. Bennie pulled the car to the side of the road and pushed on the hood of the car to close it. When he got back on the road, the sensor was off. An hour later though, it was back on. He pulled into a gas station and went around the car to close the hood. Suddenly, he felt a sting on his arm and saw two men running from the store to another car.
Bennie had been shot by a stray bullet from a robbery taking place at the gas station. If Bennie sued, Fast Auto might assert that his injury was caused by the robbery. They’ll say that the robbery was divorced from their negligence and not a foreseeable risk associated with giving Bennie a defective car.
Frustration of Purpose
Frustration of purpose is a situation in which an unexpected circumstance undermines the purpose of a contract.
Example: Halema contracted with Maximum Fleet to charter two buses to take attendees from Charlotte, NC to Atlanta, GA to the Peacock Festival. The total amount came to $3663. The contract didn’t specify what was to happen if the Peacock Festival didn’t take place. But Halema and Maximum Fleet knew that the attendees were making the trip to Atlanta specifically for the Peacock Festival and related events. The day before the event, there was a shooting where many of the festivities were to be held. Security concerns caused the city to cancel the Peacock Festival and close all public events.
If Maximum Fleet attempts to enforce the contract, Halema can assert frustration of purpose due to the cancellation of Peacock Festival events. In short, Halema’s reason for traveling was frustrated.
A defendant can also allege as an affirmative defense that performance of the contract was made impossible through no fault of his. Impossibility of performance excuses both parties from performing the contract.
Example: Berl contracted with restaurant owner Sheldon to serve beer at Sheldon’s restaurant on football Sundays. Two weeks before the contract was to start, the state legislature enacted a law prohibiting the sale of alcohol on Sundays in the entire state.
The job is impossible to perform. This affirmative defense excuses both Berl and Sheldon from performing the contract.
Similar to frustration of purpose and impossibility, impracticability gives the defendant an excuse for failure to perform a contractual duty. Performance of the contract is not impossible here, but it is burdensome, difficult or even dangerous. Like impossibility, the excuse must be due to an unforeseen event or occurrence that made the performance of the contract impractical.
Example: Anniah contracted with Ravenshead Townhomes to clean newly vacant AirBNB rentals and prepare them for the next occupant. As she was driving to Ravenshead one day, an unexpected rainstorm occurred. The streets were quickly flooded. It was dangerous for her to continue. Though it was not impossible for Anniah to continue, the risk of injury if she did made her performance of the contract impractical.
If Ravenshead sues her, Anniah can argue that her duty to clean the Townhomes was discharged because of impracticality. She can also assert that the contract assumes she would not take dangerous risks to clean the townhomes, and thus she is not liable to Ravenshead for breach of contract.
Frustration, impossibility, and impracticality defenses assume that the contract would not be performed if an event occurs. With force majeure, it’s the opposite. A force majeure clause is typically written into the contract. It allows a party to delay or terminate performance if events beyond their control make performance inadvisable, dangerous, impracticable, or impossible. Force majeure events include acts of God like, floods, earthquakes, and tornadoes, as well as riots and terrorist acts.
Example: Doris is a high school guidance counselor with the Columbia County, GA school district. As part of her job, she has to conduct a series of new teacher trainings in a neighboring county. Before leaving home one morning, she heard on the radio that the school she was heading to had an active shooter crisis and would be closed for the rest of the day.
Doris can assert that she was excused from performing the contract.
So, the next time you’re looking at a summons and complaint with your name on it, and someone is suing you for something that was beyond your control, consider the affirmative defenses of intervening acts, frustration of purpose, impossibility of performance, impracticability, or force majuere.
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