Unpled affirmative defenses may be heard for the first time on motion for summary judgment even though not asserted in the answer at least where both parties are aware of the defense.
A man was handcuffed to a piece of farm machinery, beaten and threatened with death, castration or other bodily injury by men wielding knives and clubs. He was intructed to run to his home, tear his telephone off the wall, pack his clothes and leave the State or be killed. The defendants, a husband and wife, did or conspired to have these things done to him because he, a man of over thirty years of age, had given drugs and alcohol to their seventeen-year-old daughter as well as engaging in sexual intercourse with her. The man then filed for money damages for the tort committed against him and conspiracy to commit a simple assault. The court, however, granted a summary judgment in favor of the couple on the basis that the claim had already prescribed. The victim argued that summary judgment was improper on procedural grounds because the statute of limitations had never been pled in answer as required by the rules of civil procedure. Moreover, he claimed that his complaint was filed more than one year from the time the tort was allegedly committed against him by defendants but within three years of that time. The three-year statute of limitations and not the one-year statute of limitations for assault and battery should be applied.
Did the claim prescribe?
The court held that the facts presented a case for assault and battery and not intentional infliction of emotional distress. Because there was a present threat of harmful and offensive contact to plaintiff, the claim was barred by the one-year statute of limitations of § 1-54(3).