Garrett v. NationsBank, N.A. (South)

• Citation: 228 Ga.App. 114,491 S.E.2d 158
• Decision Date: 11 August 1997
• Docket Number: No. A97A1871,A97A1871
• Parties: , 97 FCDR 3088 GARRETT v. NATIONSBANK, N.A. (SOUTH).
• Court: United States Court of Appeals (Georgia)

Page 158

491 S.E.2d 158

228 Ga.App. 114, 97 FCDR 3088

GARRETT v. NATIONSBANK, N.A. (SOUTH).

No. A97A1871.

Court of Appeals of Georgia.

Aug. 11, 1997.

Carl H. Hodges, Jonesboro, for appellant.

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., Atlanta, for appellee.

ELDRIDGE, Judge.

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 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, 261 Ga. 491, 405 S.E.2d 474 (1991); Greenforest Baptist Church v. Shropshire, 221 Ga.App. 465, 471 S.E.2d 547 (1996); Crosson v. Lancaster, 207 Ga.App. 404, 427 S.E.2d 864 (1993). The defendant, who will not bear the burden of proof at trial, may accomplish this either (1) by presenting evidence which negates an essential element of plaintiff's claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the plaintiff to prove the element at trial, or (2) by showing "an absence of evidence to support the [plaintiff's] case" as to an essential element. Lau's Corp., supra at 491, 495, 405 S.E.2d 474; see, e.g., Caven v. Warehouse Home Furnishings Distrib., 209 Ga.App. 706, 707, 434 S.E.2d 532 (1993). However, a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution. Davis v. Piedmont Hosp., 222 Ga.App. 97, 473 S.E.2d 531 (1996); Service Merchandise v. Jackson, 221 Ga.App. 897, 473 S.E.2d 209 (1996). Further, all reasonable inferences from the evidence presented must be given in favor of the plaintiff, as the nonmoving party; a trial court is precluded from drawing negative inferences against the plaintiff from evidence presented by a defendant on motion for summary judgment. ¹ See Lau's Corp., supra; Millar Elevator Svc. Co. v. O'Shields, 222 Ga.App. 456, 475 S.E.2d 188 (1996); Service Merchandise, supra; Harvey v. McLaughlin, 198 Ga.App. 105, 400 S.E.2d 635 (1990); Holland v. Sanfax Corp., supra at 5. If the defendant is able to pierce the plaintiff's pleadings by showing that no jury issue exists as to an essential element of the plaintiff's claim, the burden of production of evidence shifts to the plaintiff, i.e., the plaintiff will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. See OCGA § 9-11-56(e); Lau's Corp., supra. Even slight evidence will be sufficient to satisfy the plaintiff's burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from evidence presented. ² See Stuckey Diamonds v. Jones, 195 Ga.App. 351, 393 S.E.2d 706 (1990); Mealer v. Gen. Cinema Beverages, etc., 190 Ga.App. 419, 379 S.E.2d 192 (1989). Further, the plaintiff is not required "to respond to issues which are not raised in the motion for summary judgment or to present [her] entire case on all allegations in the complaint." (Citations omitted.) Hodge v. SADA Enterprises, 217 Ga.App. 688, 690(1), 458 S.E.2d 876 (1995). Therefore, under Lau's Corp., supra, the defendant is entitled to summary judgment if it is able to pierce the plaintiff's pleadings as to any material element and the plaintiff is unable to respond with any evidence to create a jury issue as to that element.

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., 264 Ga. 224, 225, 443 S.E.2d 485 (1994); Lau's Corp., supra; Hornbuckle Wholesale Florist, etc. v. Castellaw, 223 Ga.App. 198, 200, 477 S.E.2d 348 (1996) (McMurray, P.J., dissenting); J.H. Harvey Co. v. Edwards, 219 Ga.App. 697, 698, 466 S.E.2d 246 (1995); Sheriff's Best Buy v. Davis, 215 Ga.App. 290, 291, 450 S.E.2d 319 (1994). However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.

Contributory negligence is an affirmative defense, and the defendant has the burden of proof thereon, either at trial or summary judgment. Stewart v. Mynatt, 135 Ga. 637, 70 S.E. 325 (1911); City Council of Augusta v. Hudson, 88 Ga. 599, 15 S.E. 678 (1891); Nelson & Budd, Inc. v. Brunson, 173 Ga.App. 856, 857(3), 328 S.E.2d 746 (1985); Blanton v. Doughty, 107 Ga.App. 91, 129 S.E.2d 376 (1962); Browning v. Kahle, 106 Ga.App. 353, 126 S.E.2d 892 (1962); Martin v. Henson, 95 Ga.App. 715, 99 S.E.2d 251 (1957); Western & Atlantic R. Co. v. Mathis, 63 Ga.App. 172, 10 S.E.2d 457 (1940); Pollard v. Cartwright, 60 Ga.App. 630, 4 S.E.2d 693 (1939); McFarland v. City of McCaysville, 39 Ga.App. 739, 148 S.E. 421 (1929).

Dicta in Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980), did not, either directly or sub silentio, overrule the principle that on an affirmative defense of contributory negligence the burden of proof is on the defendant, nor did it shift the burden of proof on contributory negligence from the defendant, as an affirmative defense set forth in the answer, to the plaintiff, as an element of his or her claim that ordinary care was exercised for the invitee's own safety. Such dicta merely restated, in order for plaintiff to recover, the plaintiff would have to survive the affirmative defense asserted by the defendant, which affirmative defense is present in most slip and fall cases and other premises liability cases.

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, 38 Ga. 409, 431-433(1, 2) (1868); Central R. & Banking Co. v. Dixon, 42 Ga. 327, 330-331 (1871); see also Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 669-670, 88 S.E.2d 6 (1955); Blankenship v. Howard, 98 Ga.App. 844, 852(2), 107 S.E.2d 324 (1959); Hines v. Evitt, 25 Ga.App. 606, 608(4), 103 S.E. 865 (1920). However, such harsh common law rule was changed by statute, which created the doctrine of comparative negligence. OCGA §§ 46-8-291; 51-11-7; Southland Butane Gas Co. v. Blackwell, supra at 666-667, 88 S.E.2d 6. "Under these sections of the Code it is clear that there can be no recovery of damages where the injured party has failed to use ordinary care to prevent...