BCL Enters., Inc. v. Ohio Dep't of Liquor Control, 675 N.E.2d 1, 4 (Ohio 1997); see also McGee v. McGee, 936 S.W.2d 360, 369 (Tex.App. 1996) ("Parental immunity is an affirmative defense that ordinarily must be pled to avoid waiver."); Elkington v. Foust, 618 P.2d 37, 40 (Utah 1980) (parental immunity is an affirmative defense that must be pleaded). But see Faul v. Dennis, 118 N.J.Super. 338, 287 A.2d 470, 472 (N.J.Super. Ct. Law Div. 1972) (Parental immunity is not an affirmative defense because "surprise is fundamental to the requirement to plead certain defenses affirmatively and it is difficult to imagine a situation where a party could claim surprise to the defense of parental immunity."). IV. Conclusion.
For this reason, it believed that as long as the doctrine was viable, plaintiff's cause of action could not arise. In reaching this conclusion, the lower court focused upon the consequences of the failure to plead or otherwise assert immunity as an affirmative defense to a timely-filed tort action, citing Faul v. Dennis, 118 N.J. Super. 338, 343-344 (Law Div. 1972). But compare Holmes v. Russ, 113 N.J. Super. 445 (Law Div. 1971). Cf. O'Connor v. Abraham Altus, 67 N.J. 106, 116 (1975); Rappeport v. Flitcroft, 90 N.J. Super. 578 (App.Div. 196 6).
Defendants asserted the statute of limitations defense, and although they did not identify those facts upon which it was based, plaintiff certainly cannot claim surprise as certain supporting facts were alleged on the face of the amended complaint and others based on plaintiff's testimony at the proof hearing. See Jackson v. Hankinson, 94 N.J.Super. 505, 514 (App. Div. 1967) (noting that the "spirit of the rule" is to "avoid surprise"); Faul v. Dennis, 118 N.J.Super. 338, 342 (Law. Div. 1972) (stating that an "affirmative defense generally involves the introduction of new matter which is not shown by the plaintiff's own proof or pleading" and "the omission to plead them specifically might occasion surprise"). If plaintiff was in any way uncertain regarding the basis for that defense, he certainly could have moved for a more definite statement.
Div. 2013) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:5-4 (2013)); see also Faul v. Dennis, 118 N.J.Super. 338, 342 (Law Div. 1972) ("An affirmative defense generally involves the introduction of new matter which is not shown by the plaintiff's own proof or pleading."). Thus, a plaintiff may sufficiently plead a cause of action in his or her complaint even if "an affirmative defense might [be] evident from the face of the complaint itself."
Div. 2013) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:5-4 (2013)); see also Faul v. Dennis, 118 N.J. Super. 338, 342 (Law Div. 1972) ("An affirmative defense generally involves the introduction of new matter which is not shown by the plaintiff's own proof or pleading."). An affirmative defense asserts "a matter of avoidance of liability for culpable conduct for which [a] defendant would have been answerable but for the particular facts of the transactional relationship between the parties."
It has also been held that a viable status-immunity defense, although in some respects an affirmative defense directly affecting the remedy rather than the right, is nevertheless one which is so elemental to the maintainability of the action that its existence will defeat the action even if not properly pleaded. See, e.g., Faul v. Dennis, 118 N.J. Super. 338, 343-344 (Law Div. 1972). And see the discussion generally of the class of defenses affecting the maintainability of actions in Montag v. Bergen Bluestone Co., 145 N.J. Super. 140, 148-149 (Law Div. 1976).
Under New Jersey law any right which Justice might have against defendant Zweifel is a derivative one arising through the wife. See Kennedy v. Camp, 14 N.J. 390 (1954); Surnack v. Surnack, 116 N.J. Super. 294, 296 (Law Div. 1971); Faul v. Dennis, 118 N.J. Super. 338, 344 (Law Div. 1972). If her claim against her husband were decided under New Jersey law, it would not be barred and Justice would have a claim against her husband for contribution.
This is a "defense" which is characterized as "going to the cause of action" and hence is expressly preserved pursuant to R. 4:6-7, which saves from waiver the R. 4:6-2(e) defense of failure to state a claim upon which relief can be granted. See, e.g., Faul v. Dennis, 118 N.J. Super. 338, 343-344 (Law Div. 1972) (so holding in respect of the parent-child immunity); O'Connor v. Altus, 67 N.J. 106, 116 (1975), and Rappeport v. Flitcroft, 90 N.J. Super. 578, 580-581 (App.Div. 1966) (so holding in respect of the statute of limitations) Failure to meet the monetary threshold is clearly within this category of hybrid legal fact.
The purpose in R. 4:5-4 of requiring that certain defenses be pleaded affirmatively is to avoid surprise. Faul v. Dennis, 118 N.J. Super. 338, 342 (Law Div. 1972). This same rationale would seem applicable to the requirement of specificity in the pleadings, particularly in view of the expression in 110-112 Van Wagenen Ave. Co. v. Julian, 101 N.J. Super. 230, 239 (App.Div. 1968), that the "intent and spirit of the rules" is to put adverse parties on notice of claims to be met. It cannot be said that the third, fourth, fifth and sixth separate defenses as asserted in the answer caused plaintiffs unfair surprise or failed to apprise them of the claims asserted by defendant.