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 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

JEFFREY TODD KNUDSON, 

 

 Plaintiff, 

 Case No. 14-CV-14854 

vs. 

 HON. GEORGE CARAM STEEH 

M/V AMERICAN SPIRIT, et al., 

 Defendants. 

_____________________________/ 

ORDER GRANTING PLAINTIFF’S SECOND MOTION 

TO DISMISS DEFENDANTS’ REASSERTED AFFIRMATIVE 

DEFENSE OF COMPARATIVE NEGLIGENCE [ECF NO. 211] 

This matter comes before the court on plaintiff’s motion to dismiss 

defendants’ reasserted affirmative defense of comparative negligence. In 

their answer to plaintiff’s second amended complaint, defendants asserted 

several affirmative defenses, including comparative negligence. The 

parties filed competing dispositive motions with plaintiff challenging a 

number of defendants’ affirmative defenses in his motion for summary 

judgment [ECF No. 58]. In response to plaintiff’s motion, defendants 

agreed to withdraw certain defenses, including the defense of comparative 

negligence [ECF No. 66]. On August 30, 2017, the court ruled on the 

remaining issues in the parties’ competing motions. 
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On October 9, 2018, plaintiff filed a third amended complaint wherein 

he alleged that American Steamship Company was the employer of First 

Mate Jon Olney. Plaintiff asserted negligence against American 

Steamship Company under the doctrine of respondeat superior for the 

actions of Mr. Olney in connection with plaintiff’s injuries. Defendants 

answered the third amended complaint and re-asserted the affirmative 

defense of comparative negligence [ECF No. 137]. 

The parties are now preparing for trial and defendants’ proposed jury 

instructions include an instruction on comparative negligence. In 

response, plaintiff filed this motion to dismiss the affirmative defense 

because it is not supported by any evidence, or in the alternative because it 

is barred by judicial estoppel. 

Defendants do not dispute that they have failed to identify any 

evidence in discovery to support the affirmative defense of comparable 

fault. Nevertheless, defendants explain their concern that evidence could 

be adduced at trial in “an unexpected way that would merit the jury’s 

consideration of the comparative fault defense.” (ECF No. 250, PageID 

5099). After briefing the issue, the parties agree that the affirmative 

defense of comparative fault should be dismissed for lack of evidence, 

disagreeing only on whether such dismissal should be with or without 
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prejudice. 

The court has the discretion to permit amendment of pleadings to 

conform to evidence presented at trial, as provided by Fed. R. Civ. P. 

15(b). Therefore, the court, in dismissing defendants’ affirmative defense 

of comparative fault for lack of evidentiary support, notes that such 

dismissal is without prejudice. Now, therefore, 

IT IS HEREBY ORDERED that plaintiff’s second motion to dismiss 

defendants’ reasserted affirmative defense of comparative negligence is 

GRANTED without prejudice. 

Dated: March 26, 2020 

s/George Caram Steeh 

GEORGE CARAM STEEH 

UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

March 26, 2020, by electronic and/or ordinary mail. 

s/Brianna Sauve 

Deputy Clerk