On Aрril 11, 2002, Gayle Pittman sued United Toll Systems, LLC ("United Toll"), State Farm Mutual Automobile Insurance Company ("State Farm"), and certain fictitiously named defendants, seeking to recover damages for injuries she sustained in an automobile accident that occurred on the approach to a toll bridge operated by United Toll. The accident was caused by a chain reaction set in motion by icy conditions on the bridge. Pittman alleged negligence and wantonness against United Toll and alleged breach of contract as to both State Farm1 and United Toll. United Toll moved for a summary judgment on all pending claims against it on the sole basis of the defense of assumption of the risk. Pittman responded and the trial court, after hearing oral arguments on the motion, entered a summary judgment for United Toll on all сlaims without stating its rationale. Pittman filed a motion to alter, amend, or vacate the trial court's judgment; the court denied that motion. Pittman appealed.
On appeal, Pittman argues that the trial court erred in entering a summary judgment for United Toll because, she says, in response to its summary-judgment motion she presented substantial evidence creating genuine issues of material fact (1) as to whether she had actual knowledge and appreciation of the danger of ice on the bridge and (2) as to whether she voluntarily рroceeded onto the approach to the bridge with an understanding that there was ice on the bridge.
This Court's review of a summary judgment is de novo.
Hobson v. American Cast Iron Pipe Co.,"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co.,
, 531 So.2d 860 862 (Ala. 1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright,(Ala. 1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 654 So.2d 542 , 538 So.2d 794 797-98 (Ala. 1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright,654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida,, 547 So.2d 870 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc.,(Ala. 1993) [overruled on other grounds, Bruce v. Cole, 613 So.2d 359 (Ala. 2003)]; Hanners v. Balfour Guthrie, Inc., 854 So.2d 47 , 564 So.2d 412 413 (Ala. 1990)."
The accident occurred on one of the approaches to the Alabama River Parkway Toll Bridge, which is owned and oрerated *845 by United Toll. The bridge, which crosses the Alabama River separating Elmore County and Montgomery County, is used frequently by motorists traveling between the two counties.
The record reveals the following facts. Pittman, a resident of Elmore County, commonly used this route to trаvel to and from her job in Montgomery. On December 21, 2000, the day the accident occurred, the weather was cold and there was precipitation in the from of a wintry mix of rain and ice. Although Pittman's employer told her the day before that her employer could pick her up that morning because of the wintry conditions, Pittman decided to drive herself to work. Pittman left her home early that morning because of the wintry conditions. While she was on the way to work, Pittman heard over the radio that there were a number of accidents on Interstate 65, the other route she could use, and that traffic was being directed to the bridge. In her deposition, Pittman testified that, operating with the general knowledge that "ice usually freezes on bridges first," and in order to avoid crossing multiple bridges on Interstate 65, she dеcided to take the toll bridge. Because of the wintry weather and the possibility of ice on the road, Pittman drove more slowly than usual and kept a lookout for other vehicles. At approximately 7:00 a.m., Pittman arrived at the north end of the bridge in her vehicle trаveling south toward Montgomery. Pittman stopped at the tollbooth, paid the toll, and exited the tollbooth plaza. The bridge is constructed so that the five lanes emerging from the five tollbooths merge into a two-lane road. It is this two-lane road that constitutes the аctual bridge. Before reaching the point where the five lanes merge into two, Pittman saw a black truck in the lane immediately to her right. Pittman slowed and allowed the truck to merge in front of her. The truck did not make any erratic movements as it continued toward the bridgе, but once it was on the actual bridge, Pittman saw it beginning to slide into the opposing, northbound lane. Pittman stopped her vehicle in an area between the tollbooth plaza and the bridge to avoid the same fate. When she had been stopped for only а few seconds, Pittman saw a vehicle, driven by Johnetta Johnson, cross the bridge in the northbound lane and swerve to avoid the black truck. Johnson lost control of the vehicle, and it slid across the northbound lanes, crashing into Pittman's stationary vehicle, causing Pittman's air bag to inflate. Pittman alleges that, not immediately, but as a result of the accident, she suffered injuries to her arm and spine.
Ex parte Barran,"A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Vines v. Beloit Corp.,
, 631 So.2d 1003 1004 (Ala. 1994). A defendant relying on the affirmative defense of assumption of the risk bears the burden of presenting substantial evidence indicating that the plaintiff assumed the risk that gave rise to the injury. Superskate, Inc. v. Nolen,, 641 So.2d 231 237 (Ala. 1994)."
This Court has stated: *846
"The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger. Gulf Shores Marine Indus., Inc. v. Eastburn,Ex parte Potmesil,, 719 So.2d 238 240 (Ala.Civ.App. 1998). Assumption of the risk is describеd as `a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk.' Cooper v. Bishop Freeman Co.,, 495 So.2d 559 563 (Ala. 1986), overruled on other grounds, Burlington Northern R.R. v. Whitt,(Ala. 1990)." 575 So.2d 1011
United Toll argues that Pittman knew and appreciated the risks invоlved with using the bridge on December 21, 2000, citing seven factors it says prove that Pittman assumed the risk, as a matter of law:
"Prior to the accident, [Pittman] was aware of the following: (1) it was icy and cold, (2) the forecast was for winter weather, (3) she had observed the icy weathеr, (4) she knew to be cautious, to maintain a reasonable speed and to maintain a reasonable distance from other vehicles due to the ice; (5) she was aware that other drivers may not be operating their vehicles properly, (6) she was awаre that bridges can freeze and be icy, (7) was aware she did not have to drive to work that day, could have contacted her employer to come pick her up, and could have taken a different route to get to work."
(United Toll's brief, 10-11.) This Court has explained that "[a]ssumption of the risk proceeds from the injured person'sactual awareness of the risk." McIsaac v. Monte Carlo Club,Inc.,
The first two factors cited by United Toll do not even address the conditions on the bridge at the time of the accident. General knowledge of weather conditions is unconvincing as indicating an actual awareness of the condition of a particular bridge. The third factor — that Pittman "observed" icy weather — does not support an inference that Pittman actually observed the icy weather on the bridge when she was approaching it. Indeed, according to Pittman's deposition testimony, that was not the case:
"Q [Cоunsel for United Toll]: As you headed out from your home, were any of the roads that you traveled on before *847 you got to the toll bridge icy or slick in any way?
"A [Pittman]: No. Just wet.
"Q: All right. Any incidents where you felt your car was sliding or anything like that?
"A: No.
". . . .
"Q: When you approached the tollbooth, did [the tollbooth attendant] say anything to you and did you say аnything to him?
"A: No.
"Q: Did [the tollbooth attendant] say anything to you about the weather conditions?
"A: No.
". . . .
"Q: . . . — up to this position, are you slipping and sliding in any way?
"A: Not at that point, no.
"Q: Do you see any ice or patches of ice?
"A: None right there, no.
". . . .
"Q: Did you see any ice or any conditions that caused you concern over here in this plaza area, that being from where you left the tollbooth before you got on the bridge?
"A: No.
"Q: So no problem driving as you get to this spot?
"A: Right.
". . . .
"Q: . . . Could you physically, you being where you are in your position, see any ice on the bridge?
"A: Huh-uh (Negative response).
". . . .
"Q: In other words, when you're here and this truck is sliding — and I know you are putting two and two together going it's icy. It's a bridge. The bridge is probably icy. That's probably what he's going on. But my question is, when you're sitting here as he's sliding, can you see any ice on the bridge?
"A: No.
"Q: Did you see any patches anywhere?
"A: No."
The fourth, fifth, sixth, and seventh factors cited by United Toll as evidence that Pittman had assumed the risk are very general and suggest that Pittman should have known the bridge could be icy, but do not аddress her actual knowledge. According to the record before us, no evidence was presented to indicate Pittman's "actual awareness" that there was ice on the bridge before the driver of the truck lost control of it. Therefore, there exist gеnuine issues of material fact to be resolved by the fact-finder.
"The assumption of the risk defense is not based on the plaintiff's fault or negligent conduct. See Kelton v. Gulf States Steel, Inc.,, 575 So.2d 1054 1055 (Ala. 1991); Kemp v. Jackson,, *848 274 Ala. 29 (1962). The plaintiff must know that a risk is present and must understand its nature. See Kelton, 145 So.2d 187 575 So.2d at 1055 ; Employers Casualty Co. v. Hagendorfer,(Ala. 1981). His choice to incur the risk must be freе and voluntary. See Kelton, 393 So.2d 999 575 So.2d at 1055 ; Kemp,, 274 Ala. 29 , 194-95." 145 So.2d 187
After leaving the tollbooth plaza, Pittman saw the black truck hit a patch of ice and slide. Upon seeing that, Pittman stopped her vehicle before she actually reached the bridge. It was while Pittman was stopped that the chain of events leading to the accident transpired. In order to avoid hitting the black truck, Johnson swerved her car, hit a patch of ice, and then hit Pittman's vehicle while Pittman was still stationary. Pittman never guided her car into harm's way. Pittman never personally encountered any iсe on the bridge, nor did she ever drive onto the bridge. Included in Pittman's deposition is the following testimony:
"Q [Counsel for United Toll]: And you stayed exclusively in this one position here [off the bridge]?
"A [Pittman]: Absolutely.
"Q: And why do you stay here?
"A: Because I saw [the black truck] — I was creeping along, and when I saw [the black truck] hit the iсe and started sliding, I completely stopped.
". . . .
"Q: All right. How long a period of time would you say it was from the time [Johnson] started into the skid until the time that she hit you?
"A: I have no idea. Seconds. It all happened so fast."
As indicated by the record, Pittman never entered the zone of danger once she saw the black truck start sliding. Pittman was not the catalyst for the chain of events resulting in the collision, nor did she position herself as to be affected by that chain. Based on our review of the record, we conclude that Pittman did not voluntarily proceed with knowledge of the danger posed by ice on the bridge. As a result, the second prong of assumption of the risk has not been satisfied.
As to whether the summary judgment was proper as to the breach-of-contract claim, this Court has stated:
"[I]t has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal. An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. Humane Society of Marshall County v. Adams,Ex parte Riley,(Ala. 1983); Boshell v. Keith, 439 So.2d 150 (Ala. 1982); McNeill v. McNeill, 418 So.2d 89 (Ala.Civ.App. 1976); Melton v. Jackson, 332 So.2d 387 , 284 Ala. 253 (1969); Pappas v. Alabama Power Company, 224 So.2d 611 , 270 Ala. 472 (1960); Schneider v. Southern Cotton Oil Co., 119 So.2d 899 , 204 Ala. 614 (1920)." 87 So. 97
For the foregoing reasons, the trial court's summary judgment in favor of United Toll on Pittman's negligence and wantonness claims is due to be reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED. *849
HOUSTON, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.
SEE, J., dissents.