On January 8, 1996, appellant Lisa Garrett drove through the drive-through teller booth of appellee NationsBank, N.A. (South) at the Southway Branch, Jonesboro, Clayton County, Georgia. The teller, Dana Elizabeth Blair, saw appellant and extended the deposit drawer for appellant to make her deposit. Appellant placed her deposit slip and currency into the drawer, but a gust of wind blew the deposit slip and currency out of the drawer, through the drive-through area, and into the parking lot. Blair saw the money blow out and instructed appellant that she was not to leave her car and that Blair would get the deposit slip and currency. Never acknowledging that she heard Blair, appellant jumped out of the car and ran after the blowing currency. Appellant did not remember what Blair said to her when the currency blew away. By the time Blair exited the door to the drive-through teller booth to collect the money for appellant, appellant had already exited her car and had started to run to catch the money. To Blair, appellant appeared to be in a panic from her conduct in running after the money blowing in the parking lot. Blair saw appellant fall while she was running.
The day was windy, and snow and ice had accumulated during the prior night. Appellant was aware of the weather and had seen a weather report on the news. After appellant’s fall, Blair saw white ice around the edges of the driveway; where the ice was melting “was more like black ice, but it was white. You could see it. It was visible.” Appellant appeared to step on the ice when she slipped and fell. Appellant stated that she did not see any ice on the driveway or bank parking area when she drove in, but that she was not looking at the ground either when she drove in or when she was running prior to her fall, because she was looking at the money. Appellant admitted seeing snow on the ground and it was melting, although the sun was out as she drove to the bank at noon and the snow was starting to melt. Appellant, even after her fall, could not see any ice, but she knew that it was there, because the ground was slippery, cold, and wet.
Appellee moved for summary judgment. After hearing oral argument, the trial court granted summary judgment. Herein, appellant sets forth five different enumerations of error that all contend the trial court erred in granting appellee’s summary judgment. We do not *115 agree and affirm.
Appellee’s answer set out the affirmative defense of contributory negligence, and appellee’s motion for summary judgment was predicated upon such affirmative defense.
On a motion for summary judgment under OCGA § 9-11-56, the defendant, as the moving party, may prevail by “piercing the plaintiff’s pleadings,” i.e., demonstrating that plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case. OCGA § 9-11-56 (c);
Lau’s Corp. v. Haskins,
However, even if the defendant is unable or does not attempt to pierce the plaintiff’s pleadings, it may still prevail at summary judgment by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, because: (1) the defendant would have such burden of proof at trial; and (2) the allocation of favorable inferences between the parties is a jury question. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting
any
evidence which creates a jury issue on an element of the affirmative defense. See
Barentine v. Kroger Co.,
Contributory negligence is an affirmative defense, and the defendant has the burden of proof thereon, either at trial or summary judgment.
Stewart v. Mynatt,
Dicta in
Alterman Foods v. Ligon,
At common law, any negligence on the part of the plaintiff which concurred in proximately causing his or her injury, no matter the degree, acted as an absolute bar to plaintiff’s recovery. See
Macon & Western R. Co. v. Johnson,
Contributory negligence is comprised of two separate and distinct defenses. See
Savannah Elec. Co. v. Jackson,
If the form of contributory negligence in the case sub judice is that in which both parties were negligent, then plaintiff had a duty to avoid the effect of appellee’s negligence after it became apparent to her or in the exercise of ordinary care she should have become aware of it. See
Freeman v. Oak Grove Animal Clinic, P.C.,
In the case sub judice, assuming arguendo that the appellee was negligent in failing to inspect for and remove ice, snow, or water, in failing to warn, and in failing to have in the extended drawer a clip to hold money from blowing away, such negligence would have been nonfeasance or passive negligence; further, the absence of the clip was open and obvious, and the condition of the driveway was equally observable by both parties. Plaintiff’s act of jumping out of her car and chasing after the money without looking where she was running was active negligence, misfeasance.
The sole proximate cause of appellant’s fall was her running after her money while looking only at her money, when she was aware of the bad weather conditions with some snow, ice, and water on the ground; as a reasonably intelligent and prudent person, she should have known of the risk of the pavement being slick and dangerous to someone running. This is a clear and palpable case of contributory negligence. Where appellant’s failure to exercise reasonable care for her own safety is the direct and immediate cause of her fall, which danger could have been avoided by her exercise of due care, the sole proximate cause of her injury was her contributory negligence.
City of Winder v. Girone,
supra at 724;
Driver v. Leicht,
Judgment affirmed.
Notes
Favorable inferences may be drawn by the court on behalf of the plaintiff, since the granting of a motion for summary judgment deprives the non-moving party of his constitutional right to trial by jury. Summary judgment “cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact.”
Holland v. Sanfax Corp.,
However, “ ‘[a]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’. . . [Cit.]”
Edwards v. Campbell Taggart Baking Co.,