dissenting.
While appellants’ case, if tried before a jury, would probably result in a defendant’s verdict, that is not the standard for a grant of summary judgment. Plaintiffs are constitutionally entitled to have their case decided by a jury rather than by the trial court and by this Court. Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a); OCGA § 9-11-56; Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974); Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393) (1969); Butterworth v. Pettitt, 223 Ga. 355 (155 SE2d 20) (1967). Because appellee failed in its burden of proof on summary judgment, appellants are entitled to a jury trial; therefore, I must respectfully dissent.
1. Many slip and fall cases, by the facts and circumstances of the case, are appropriate for summary adjudication, because the plaintiff lacks proof of the cause of the fall, or the owner/occupier lacks actual or constructive knowledge of the dangerous condition caused by the presence of a foreign substance. However, since Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), this Court has followed dicta in the opinion to create an extensive body of decisions that radically departs from the jurisprudence of tort law and creates a unique ability for trial courts to summarily dispose of slip and fall cases by summary judgment. This body of case law has culminated in the unlikely proposition that if the plaintiff fails to continuously look where each step is placed and slips and falls, then such failure to look, in and of itself, constitutes contributory negligence without further proof of recognition or appreciation of the danger; of opportunity to avoid upon discovery and appreciation of the danger; of proximate causation; or of consideration of the doctrine of comparative negligence. Unfortunately, Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996), is but the logical progression of such method of analysis.
Further, this problem of analysis has been compounded by a misapplication of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) *687(1991), because in many recent slip and fall cases, unlike in Lau’s Corp., the respondent is either not given the benefit of all reasonable, favorable inferences, or the converse situation exists, i.e., no unfavorable inferences of fact are made against the respondent. Moreover, under this misapplication of Lau’s Corp., there is no burden placed upon the movant, even as to issues such as contributory negligence or assumption of the risk, upon which issues the defendant does have the burden of proof at trial. Lau’s Corp. held that a movant could show the absence of an essential element of respondent’s case, not only by presenting evidence which negates or disproves such alleged element, but also by showing that there was no evidence that respondent could produce to demonstrate the existence of such element.
Much of the majority’s analysis is based upon another misapplication of dicta; this time from Summer-Minter v. Giordano, supra at 604, which states, “It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present his entire case in full [as a mini-trial].” However, the context of such statement was under OCGA § 9-11-56 (e), after the movant had carried its burden of proof and had successfully pierced the respondent’s pleadings on an essential element of the case. The respondent has no burden of proof unless and until the movant has first discharged its burden of proof and, then, only as to issues upon which the respondent would have the burden of proof at trial. Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995).
In slip and fall cases, the majority would deem that proof of contributory negligence has been fully satisfied for summary judgment purposes with only the plaintiff’s failure to look where the step was made; the majority would not require the additional, factually supported elements of: (1) opportunity to avoid the danger, (2) appreciation of the danger, and (3) proximate cause, which elements must be proven by the movant defendant on summary judgment, as it must be proven by the defense at trial. Under tort law, if proof of such elements of contributory negligence is required, then the trial court, as well as this Court, has found the necessary elements on summary judgment in the case sub judice by making negative inferences against the plaintiff and in favor of the defendant from evidence of plaintiff’s failure to look, alone. Clearly, evidence of failure to look, alone, is insufficient to establish prima facie all the elements of contributory negligence.
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 the 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 *688(c); Lau’s Corp., supra; Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996); Crosson v. Lancaster, 207 Ga. App. 404 (427 SE2d 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 the 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 any essential element. Lau’s Corp., supra at 491, 495; see, e.g., Caven v. Warehouse Home Furnishings &c., 209 Ga. App. 706, 707 (434 SE2d 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 SE2d 531) (1996); Svc. Merchandise v. Jackson, 221 Ga. App. 897 (473 SE2d 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 a motion for summary judgment.1 See Lau’s Corp., supra; Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (475 SE2d 188) (1996); Svc. Merchandise v. Jackson, supra; Harvey v. McLaughlin, 198 Ga. App. 105 (400 SE2d 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 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 on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented.2 See Stuckey Diamonds v. Jones, 195 Ga. App. 351 (393 SE2d 706) (1990); Mealer v. Gen. Cinema Beverages &c., 190 Ga. App. 419 (379 SE2d 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 [his] entire case on all allegations in the com*689plaint.” Hodge v. SADA Enterprises, supra at 690. 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 a defendant is unable 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, as all inferences must be drawn in favor of the plaintiff, as the nonmoving party. Once the defendant satisfies its burden by presenting evidence to support each element of the affirmative defense, the burden of production shifts to the plaintiff, who will survive summary judgment 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 SE2d 485) (1994); Lau’s Corp., supra; Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198 (477 SE2d 348) (1996) (McMurray, P. J., dissenting); J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (1995); Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). However, if the plaintiff is unable to meet this burden, the defendant is entitled to summary judgment as a matter of law.
Clearly, a defendant has the burden of proof at trial of , the defenses of assumption of the risk or of contributory negligence. It follows that, on summary judgment, the defendant can satisfy such burden of proof only by producing evidence as to each such element of the defense, and even then, such burden of proof does not shift: after the defendant makes a prima facie showing, the burden of production shifts to the plaintiff, which is an entirely different issue, and which burden may be satisfied by favorable inferences from the evidence, as well as issues of weight and credibility.3 Therefore, once the movant makes out a prima facie affirmative defense, then under OCGA § 9-11-56 (e), the respondent must put up evidence to create an issue of fact or risk losing at summary judgment. When an affirmative defense is the basis for summary judgment, the burden does not shift under OCGA § 9-11-56 (e) until the defendant proves all elements of the affirmative defense, because such evidence does not pierce the complaint but instead establishes an affirmative defense as asserted in the answer.
2. I agree with the majority’s opinion that Hartley’s legal status *690on Precision Tune’s premises was that of a licensee. “A landowner is not an insurer of the safety of those who venture upon his land whether they are in trespasser, licensee or even invitee status. [Cit.]” Wade v. Mitchell, 206 Ga. App. 265, 267 (2) (c) (424 SE2d 810) (1992). However, different duties are owed by the landowner to individuals, depending on their legal status. “In comparing the status of the licensee with that of a mere trespasser this court has held [that in] the case of a licensee there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done. Barry v. Cantrell, 150 Ga. App. 439, 440 (258 SE2d 61) [(1979)]. An owner owes to a licensee no duty as to the condition of the premises[,] save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm. Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968). An owner or occupier is subject to liability to a licensee for injury caused by a condition on the property if the owner (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not realize the danger; and (b) fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and risk involved, and (c) the licensee does not know or have reason to know of the condition and the risk. Robinson v. Turner, 164 Ga. App. 515, 516 (297 SE2d 522) [(1982)]. Of course, this rule is but a restatement of Restatement, Torts, 2d § 342. See Sims v. Willoughby, 179 Ga. App. 2, 3 (345 SE2d 626) [(1986)]. This Restatement rule is the basis for the legal liability of an owner or occupier because of his superior knowledge of the risk or danger, i.e.: The basis of the proprietor’s liability is his superior knowledge and if his licensee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the licensee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.) It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Bunch v. Stanton, 174 Ga. App. 233, 235 (329 SE2d 538) [(1985), overruled on other grounds, Moon v. Homeowners’ Assn. of *691Sibley Forest, 202 Ga. App. 821 (415 SE2d 654) (1992)].” (Punctuation omitted.) Savage v. Flagler Co., 185 Ga. App. 334, 337-338 (2) (364 SE2d 52) (1987), reVd on other grounds, 258 Ga. 335 (368 SE2d 504) (1988) (passive negligence without knowledge of licensee’s presence). “An owner/occupier of premises has a duty to keep those premises safe for its invitees. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry.” (Citations and punctuation omitted.) Jackson v. Camilla Trading Post, 218 Ga. App. 164, 166 (460 SE2d 849) (1995).
There is no distinction between the duty owed to an invitee and a licensee by an owner or occupier of land when the licensee’s presence is known to the owner/occupier of the premises and the owner/ occupier’s alleged negligence involves active negligence. Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994); Wade v. Mitchell, supra. Under such circumstances and the facts of this case, Hartley would be owed the same duties as those owed to an invitee on the premises.
3. The majority’s opinion urges that where the injury of which a plaintiff complains is caused by a condition of the premises that predates the plaintiff’s arrival on the premises, such acts could not support a claim of active negligence and cites Lipham, supra, and Trammell v. Baird, 262 Ga. 124 (413 SE2d 445) (1992), for such proposition. However, Trammell v. Baird stands only for the proposition that the owner/occupier of the premises owes no duty to warn a trespasser of the existence of a dangerous activity on the premises or of a hidden peril. “[W]here the alleged negligence arises from static or passive conditions, the landowner owes the anticipated trespasser a duty not to injure him wilfully or wantonly. [Cits.]” (Emphasis supplied.) Id. at 126. Trammell v. Baird clearly deals with the existence of a static condition that was not a mantrap; the owner/occupier of the premises has no duty to warn a trespasser of such condition. Lipham deals with the active negligence of an employee which is directed at a licensee on the premises. Lipham does not stand for the proposition that all negligence with respect to the premises or approaches referred to in OCGA § 51-3-1 is passive negligence.
Acts of an owner/occupier of the premises can create a dangerous condition on the premises. Such acts would constitute active negligence and do not become static just because the condition exists prior to the arrival of the invitee or licensee. Where the acts or omissions of the owner/occupier work positive injury to others, such acts or omissions áre active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). Where the owner/occupier of *692the premises either through malfeasance (commission of an act wrongful in itself), misfeasance (improper performance of an act), or non-feasance (the failure to perform an act) creates a reasonable, foreseeable danger to an invitee, then knowledge is presumed or imputed to the owner/occupier, because it is the tortfeasor’s act or omission that created the danger or allowed the danger to continue unabated or without warning. Lipham, supra at 865; Wade v. Mitchell, supra at 266-267; American Nat. Bank &c. v. Howard, 117 Ga. App. 834 (161 SE2d 838) (1968).
In the case sub judice, Hartley testified that he slipped in new oil on the floor; new oil is not a “foreign” substance but is indigenous to a garage as part of the product, as well as waste by-product. Davidson and Moss testified that there was no oil on the floor, only rain water, which is a foreign substance brought into the premises. Neither Moss nor Davidson saw the substance on which Hartley slipped prior to his fall. The alleged presence of new oil on the repair bay floor is circumstantial evidence that the oil got there by the acts or omissions of appellee’s employees as active negligence, because only they had possession and control over the area and the new oil. See Foster v. Jones, 64 Ga. App. 66, 67 (12 SE2d 141) (1940); see also Wiley v. Winn Dixie Stores, 204 Ga. App. 570, 572 (420 SE2d 20) (1992); Mazur v. Food Giant, 183 Ga. App. 453, 454 (359 SE2d 178) (1987); Miscally v. Colonial Stores, 68 Ga. App. 729, 732-733 (23 SE2d 860) (1943); see generally Angel v. The Varsity, 113 Ga. App. 507, 509 (148 SE2d 451) (1966).
In the case sub judice, appellee does not present any evidence to contradict the reasonable inference that the presence of the new oil was caused by appellee’s employees. Instead, appellee presents evidence to dispute the presence of new oil; that, instead of new oil, the substance was merely rain water that had been tracked inside or had dripped off the car. This causes a material issue of fact for jury determination, i.e., was it new oil on the floor or was it merely a foreign substance, rain water? If the cause of the slip and fall was, in fact, a foreign substance, rain water, then appellant would be barred from recovery on the basis of equal knowledge with the owner/occupier. See Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (332 SE2d 304) (1985).
Alterman Foods, supra at 623, is distinguishable on the law and facts from the case sub judice. In the case sub judice, there exists a factual issue as to active negligence, i.e., new oil on the floor, which is an indigenous substance under the appellee’s control; in Alterman Foods, the alleged negligence was passive negligence in failing to discover and warn that the floor was slick or had been made slick by tracking rain water, a foreign substance, on the floor. In Alterman Foods, the holding was that the plaintiff did not know the cause of *693her fall, which barred recovery, unlike the case sub judice, where the appellant unequivocally testified that new oil caused him to slip and fall. In the case sub judice, appellee’s employee was aware of the appellant’s actual presence, waved Marsh and appellant into the area of the alleged danger without making prior immediate inspection, and was in the immediate area of the alleged danger. Furthermore, the Alterman Foods two-pronged test has application only in foreign substance cases or negligent maintenance cases, which application is asserted only by appellee and not by appellant. Further, the two-pronged test was unnecessary for the holding in. Alterman Foods; the Supreme Court held that the store owner was entitled to summary judgment as a matter of law where there has been no showing of negligence, because the plaintiff did not and could not point to the cause of her fall; therefore, the second prong is dicta, which was unnecessary to the Court’s holding. Id. at 623-624.4
To recover, a plaintiff must show that he or she was without knowledge of the presence of the dangerous condition. See Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136, 138 (207 SE2d 532) (1974). “A finding that the plaintiff is precluded from recovering in a slip and fall case because of [his] own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff’s own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, [supra at 623]. ‘The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.’ Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (II) (227 SE2d 336) (1976).” Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991).
“The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him. McGrew v. S. S. Kresge Co., 140 Ga. App. 149, 151 (230 SE2d 119) (1976); King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954). See also, Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (129 SE2d 196) (1962).” (Punctuation omitted.) Alterman Foods v. Ligon, supra at 623.
“However, a store patron is not bound to the same degree of care in discovering or apprehending danger in moments of stress or *694excitement or when his attention has been diverted. Glover v. City Council of Augusta, 83 Ga. App. 314, 316 (63 SE2d 422) (1951). Where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in [stepping in] what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant. Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859 (201 SE2d 634) (1973); Gray v. Delta Air Lines, 127 Ga. App. 45, 52 (192 SE2d 521) (1972).” (Punctuation omitted.) Id. at 623.
Alterman Foods, with its two-pronged test, set forth what a plaintiff must prove at trial to prevail before a jury, assuming that the defendant presents evidence to prove a prima facie defense of contributory negligence. Neither Alterman Foods, nor Lau’s Corp., changed contributory negligence or assumption of the risk from affirmative defenses that the defendant had the burden of proving at trial into an essential element of plaintiff’s case. Further, Alterman Foods did not establish with its two-prong test a general new standard for all types of slip and fall cases on summary judgment. If on motion for summary judgment, the defendant attempts to prove an affirmative defense and demonstrates that the plaintiff failed to look and to see a danger that was open and obvious, then the defendant must go further and show that the plaintiff not only had the time, but also the opportunity, to avoid the danger in order to establish as a matter of law the bar of contributory negligence. To show that plaintiff should have seen the danger in the exercise of ordinary care raises merely the negative inference against the plaintiff that the plaintiff could have avoided the danger if the plaintiff had looked. While a jury may draw such negative inferences at trial, the trial court is not permitted to draw such negative inference against the plaintiff-respondent on motion for summary judgment. Under such circumstances, defendant has failed to carry the burden of proof of its affirmative defense and is not entitled to summary judgment unless it is able to pierce the allegations of plaintiff’s complaint. See Lau’s Corp., supra at 491.
4. In this case, there are also other material issues of fact which exist for jury determination. Hartley knew he was entering an area where vehicles were serviced and maintained. Hartley admitted it was raining on the day in question. The question of whether or not Hartley was exercising ordinary care for his own safety when he exited the vehicle in the bay area, where there was a likelihood that oil or other fluids used in maintaining and repairing vehicles might be on the floor, is a question for the jury, especially under the circumstances here, where rain water from the cars could mix with sub*695stances already dried on the floor, causing the surface to be even more slippery than normal. A jury could determine that, by such behavior, Hartley either assumed the risk for his injuries or was comparatively negligent. Further, a jury question exists as to whether Hartley was comparatively negligent due to his alleged state of intoxication. A jury could also conclude that the alleged hazard of oil, or some other fluid, on the floor was greater than the general hazard perceived by Hartley, and that Hartley’s knowledge of the hazard was not equal to that which the appellee had or should have had in the exercise of reasonable care. See Flood v. Camp Oil Co., supra at 452. Material issues of fact also exist as to whether or not Hartley’s view of the oil was blocked by the front of the car, and whether Hartley was distracted by an employee of appellee. While such material issues of fact exist, I must conclude that it was error for the trial court to grant appellee’s motion for summary judgment.
Decided July 11, 1997 Reconsideration denied July 29, 1997 Nelson & Lord, Ellis M. Nelson, for appellants. Katz, Flatau, Popson & Boyer, Barbara S. Boyer, for appellee.Favorable inferences may be drawn on behalf of the non-moving party, since the granting of summary judgment deprives the non-moving party of his right to trial by jury contrary to the Constitution of the State of Georgia and the United States; “The act cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact.” Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962); see also Ga. Const. of 1983, Art. I, Sec. I, Par. XI; U. S. Const., Amend. VII.
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 Cos., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996).
All the plaintiff must do is create a disputed issue of material fact as to the affirmative defense. There is no duty to present evidence disproving the affirmative defense. See Hodge v. SADA Enterprises, supra at 691.
See, e.g., Blake v. Kroger Co., 224 Ga. App. 140, 143 (480 SE2d 199) (1996), Birdsong, P. J., writing for the majority (five-year-old “rule” in Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (408 SE2d 443) (1991), requiring a demonstration of compliance with cleaning and inspection procedures, is “dictum”).