(A) Defense of contributory negligence or assumed risk. In all claims alleging negligence, the burden of pleading and proving contributory negligence, assumption of risk, or incurred risk shall be upon the defendant who may plead such by denial of the allegation.
Rule 9.1.Pleading and proof of contributory negligence, assumed risk, res ipsa loquitur, consideration, bona fide purchaser, matters of judicial notice—Answer of distraint
Current through July 1, 2026 · Last verified July 13, 2026
In one sentenceTrial Rule 9.1 sets special pleading and proof rules for six recurring situations — contributory negligence and assumed risk, res ipsa loquitur, lack of consideration, bona fide purchaser status, judicial notice, and answers in distraint actions — so parties do not have to plead them in unnecessary detail.
Full Text of Rule 9.1
(B) Res ipsa loquitur. Res ipsa loquitur or a similar doctrine may be pleaded by alleging generally that the facts con- nected with the action are unknown to the pleader and are within the knowledge of the opposing party.
(C) Consideration. When an action or defense is founded upon a written contract or release, lack of con- sideration for the promise or release is an affirmative defense, and the party asserting lack of it carries the burden of proof.
(D) Bona fide purchaser. When the rights of a person depend upon his status as a bona fide purchaser for value or upon similar requirements, such status must be pleaded and proved by the person asserting it, but it may be pleaded in general terms. Once it is established that the person has given any required value, unless such value is commercially unreasonable, and that he has met any requirements of recordation, filing, possession, or perfection, the trier of fact must find that such value was given or such perfection was made in accordance with any requirements of good faith, lack of knowledge, or lack of notice unless and until evidence is introduced which would support a finding of its non-existence.
(E) Presumption--Matters of judicial notice. Neither presumptions of law nor matters of which judicial notice may be taken need be stated in a pleading.
(F) Property distrained--Sufficient answer. In an action to recover the possession of property distrained while doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good without setting forth the title of such real prop- erty.
Amendment History
This rule’s current text took effect January 1, 1970. For the full history of earlier amendments and adoption orders, see the Indiana Office of Court Services.
Plain-English Summary
Most defenses in Indiana have to be spelled out in an answer. Rule 9.1 carves out six defenses and proof problems that come up often enough, and cause enough pleading trouble, that the rule gives each one its own shortcut.
Section (A) covers contributory negligence, assumption of risk, and incurred risk in a negligence case. A defendant does not need to plead any of these as a separate affirmative defense. A plain denial of the plaintiff’s negligence allegations is enough to put the issue in the case, though the defendant still carries the burden of proving it. Section (B) does the same for res ipsa loquitur: a plaintiff can raise it by alleging, in general terms, that the facts behind the injury are not known to the plaintiff and are known to the other side, without spelling out the underlying evidence.
Section (C) flips the usual assumption about consideration. If a claim or defense rests on a written contract or release, the party who says there was no consideration for it — not the party relying on the writing — has to plead that lack of consideration as an affirmative defense and prove it. Section (D) does something similar for a party claiming to be a bona fide purchaser: that status can be pleaded in general terms, and once the person shows they gave value (unless the value given was commercially unreasonable) and met any recording, filing, possession, or perfection requirements, the rule presumes good faith and lack of notice of competing claims unless the other side comes forward with evidence to the contrary.
Section (E) says presumptions of law and matters a court can take judicial notice of never need to appear in a pleading at all. Section (F) deals with an old and narrow situation: a suit to recover livestock or other property that was seized (distrained) while damaging land. The person who seized it can answer by stating they lawfully possessed the land and the property was doing damage on it at the time — without having to prove up full legal title to that land.
Frequently Asked Questions
Do I have to plead contributory negligence or assumed risk as an affirmative defense in my answer?
No. Under Rule 9.1(A), a defendant does not need to plead these defenses separately. Denying the plaintiff’s negligence allegations in the answer is enough to preserve the issue, though the defendant still has the burden of proving the defense at trial.
If a defendant proves contributory negligence, does that automatically end my case?
Rule 9.1 only governs how the defense gets into the case and who has to prove it — it does not decide what proving contributory fault does to a claim. That question is answered by Indiana’s separate law on apportioning fault among the parties, not by this pleading rule.
How do I plead res ipsa loquitur under this rule?
You can allege, in general terms, that the facts surrounding how the injury happened are not known to you and are known to the opposing party. You do not need to lay out detailed evidentiary facts to invoke the doctrine.
Who has to prove there was no consideration for a contract?
The party claiming lack of consideration. Rule 9.1(C) treats lack of consideration as an affirmative defense, so the party raising it must plead and prove it — not the party relying on the contract.
What do I need to plead to establish that I am a bona fide purchaser?
You can plead your status in general terms. Once you show you gave value that was not commercially unreasonable and satisfied any recording, filing, possession, or perfection requirements, the rule presumes you acted in good faith without notice of competing claims, unless the other side introduces evidence to rebut that presumption.
Do I need to plead that a court can take judicial notice of something?
No. Rule 9.1(E) says matters subject to judicial notice, and presumptions of law, never need to be stated in a pleading.
What is the “answer of distraint” in Rule 9.1(F) about?
It applies to old-style claims to recover property that was seized because it was damaging land. Under Rule 9.1(F), the person who seized it can answer by stating they lawfully possessed the land and the property was doing damage there at the time, without proving full title to the land.
Source & verification. The rule text is reproduced verbatim from the
official Indiana Rules of Trial Procedure (T.R. 9.1). Prescribed by the Supreme Court of Indiana, under its inherent constitutional rulemaking power (reaffirmed by Ind. Code 34-8-1-1 and 34-8-2-1); originally enacted by the Indiana General Assembly in 1969. The plain-English summary is original and written by us. Last verified July 13, 2026. ·
Official source
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