Burden Shifts to Plaintiff-Opponent of Summary Judgment When Defendant-Movant Has Established an Affirmative Defense as a Matter of Law
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Discusses affirmative defenses and summary judgment. Traditionally, the defendant does not have the burden of disproving plaintiff’s defensive plea when summary judgment raises a fact issue with respect to the plea being using to avoid affirmative defense as a matter of law. The author observes that the current presumption is that any affirmative defense, once proved as a matter of law, would be efficient to shift burden.