Chapter 13-6 Inferential Rebuttal Defenses

• Jurisdiction: United States

13-6 Inferential Rebuttal Defenses

This subsection defines inferential rebuttal defenses and discusses the associated pleading requirements and proper submission of such defenses to the jury. The substance of inferential rebuttal defenses is discussed in Chapter 15.

13-6:1 Inferential Rebuttal Defenses Defined

An inferential rebuttal defense is a defense that negates an element or elements of the plaintiff's claim through proof of a separate set of facts.¹⁰⁰ It is, therefore, distinguishable from an affirmative defense in that it does not confess and avoid the truth of the plaintiff's allegations, but rather negates an essential element of the plaintiff's claim. "The basic characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory from the claim relied upon for recovery."¹⁰¹

13-6:2 Examples of Inferential Rebuttal Defenses

The following defenses have been held to be inferential rebuttal defenses:

• Partial Incapacity in Workmen's Compensation Case (where claimant claims only Total Incapacity)¹⁰²
• Unavoidable Accident¹⁰³
• New and Independent Cause¹⁰⁴
• Sole Proximate Cause¹⁰⁵
• Act of God¹⁰⁶
• Emergency
• Failure to Mitigate Damages¹⁰⁷

13-6:3 Charging the Jury on Inferential Rebuttal Defenses

An inferential rebuttal defense should not be submitted as a question to the jury¹⁰⁸ but instead, the charge should include an instruction on the inferential rebuttal defense when supported by the evidence and the pleadings.¹⁰⁹ An inferential rebuttal defense should not be submitted as an instruction to the jury, however, when the defense is nothing more than an alternate theory of liability that the plaintiff also wants submitted to the jury as a question. For example, partial incapacity may be submitted in a workmen's compensation case when the claimant's only theory of liability is total incapacity, but not when the claimant contends, in the alternative, that he is partially incapacitated.¹¹⁰

13-6:4 Pleading Requirements for Inferential Rebuttal Defenses

Generally, a defendant need not plead an inferential rebuttal defense in order to obtain an instruction in the charge on the defense.¹¹¹ The general denial may raise the issue from a pleading perspective, but the defendant still has the burden on production on any inferential rebuttal issue and must timely disclose the theory in response to Requests for Disclosure.

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Notes:

^[100] Dillard v. Tex. Elec. Co-Op, 157 S.W.3d 429 (Tex. 2005) ("An inferential rebuttal defense...