dissenting.
The motion for reconsideration filed by Sugarloaf Café, Inc. d/b/a Buffalo’s Café (“Buffalo’s”) compels me to revisit the facts of this case. I respectfully dissent from the majority’s determination that a jury issue remains on whether Buffalo’s knew that, when Phillips left the bar, she would soon drive a motor vehicle.
OCGA § 51-1-40 (b) provides that
a person . . . who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage.
For purposes of its motion for summary judgment, Buffalo’s conceded the first prong of OCGA § 51-1-40 (b). As to the second prong, the majority finds that “the only way that [Phillips] could leave the remote location was for her or some other visibly intoxicated person in her group to drive,” thus creating a jury issue as to whether Buffalo’s knew, or should have known, that Phillips would soon drive.
This reasoning is flawed. The record contains no evidence in that Buffalo’s was in a “remote” location, accessible only by car.8 The co-worker who drove Phillips to Buffalo’s, Heidi Sámese, testified that it was located in a shopping center immediately adjacent to their office building, and that it would take “about two minutes” to walk there. Other co-workers who joined Phillips at Buffalo’s gave similar testimony. The shopping center also was home to Kroger, Frontera’s Mexican Restaurant, and Wendy’s. Todd Dickens testified that he *431was sure other co-workers had walked to Buffalo’s.
The majority relies on the affidavit of the plaintiffs’ expert witness, who noted that Buffalo’s is in a shopping center located at the intersection of Sugarloaf Parkway and Meadow Church Road; that those roads are not conducive to walking traffic; that the area is light industrial, surrounded by only office parks and businesses; that the closest housing areas are at least seven-tenths of a mile away; that these housing developments are upscale, and their residents would not walk to nearby businesses; and that the area is not served by public transportation. The expert thus concluded that “the [Buffalo’s] managers, servers and bartenders knew all their customers arrived at and left the bar by automobile.”
The expert’s testimony does not support an inference, sufficient to survive summary judgment, that Buffalo’s had knowledge that Phillips would soon be driving a motor vehicle at the time that she was served alcohol.9 The defense presented uncontradicted evidence that Phillips did not drive a vehicle to or from Buffalo’s. The depositions of Phillips’s co-workers establish that Phillips arrived at Buffalo’s as a passenger in Sarnese’s vehicle and left as a passenger in Dickens’s vehicle. Dickens drove Phillips to her place of employment where she exited his vehicle and got behind the wheel of her own automobile. The expert’s opinion that Buffalo’s managers, servérs, and bartenders knew all their customers arrived at and left the bar by automobile is insufficient to contradict the direct, positive testimony that Phillips did not drive to or from the restaurant. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.”10
*432Decided January 23, 2004 Reconsideration denied March 23, 2004 Ralph E. Hughes, for appellants. Weinberg, Wheeler, Hudgins, Gunn & Dial, J. Kenneth Moorman, Rachel A. Fuerst, Cobb, Grabbe, Spillers & Irwin, Larry G. Cobb, for appellee.As the motion for reconsideration correctly points out, the majority opinion places an affirmative duty on providers of alcohol to determine the method by which a patron plans to depart the business establishment, and how that patron plans eventually to get home. That affirmative duty exceeds the duty established by the legislature.
Because the plaintiffs failed to come forward with evidence that Buffalo’s or its employees knew or reasonably should have known that Phillips would soon be driving after leaving the restaurant, the trial court did not err in granting summary judgment to Buffalo’s.
I am authorized to state that Presiding Judge Blackburn and Judge Ellington join in this dissent.
“Remote” is defined as “out of the way or secluded.” Webster’s New Collegiate Dictionary (1975), p. 978.
See, e.g., Riley v. H & H Operations, 263 Ga. 652, 656 (436 SE2d 659) (1993) (Clarke, C. J., dissenting); Hodges v. Erickson, 264 Ga.App. 516 (591 SE2d 360) (2003) (no evidence that party hosts knew or should have known that intoxicated party guest, who agreed to stay at hosts’ home and put his car keys back in his pocket, would soon be driving); Wright v. Pine Hills Country Club, 261 Ga.App. 748 (583 SE2d 569) (2003) (bartenders who served patron avferred that they did not see patron visibly intoxicated and did not know that she would be drivitig when she left, there was insufficient evidence to prove second prong). Compare Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 815 (2) (479 SE2d 401) (1996) (finding evidence that the defendant motel bar should have known that the patron would be driving: the patron arrived at the motel to pick up a second patron, who did not have a vehicle; the patron, while drinking with the motel manager, told the second patron several times “ ‘let’s go. Come on and let’s go’ ”; the motel’s bartender went out to the patron’s truck, awakened the patron, and asked him to help with a third patron, who had fallen; and the desk clerk observed the patron assist the third patron to the truck, get in the truck with the other passengers, and leave the motel).
(Citation and punctuation omitted.) Haley v. Regions Bank, 277 Ga. 85, 89 (1) (586 SE2d 633) (2003). See also Furlong v. Dyal, 246 Ga. App. 122, 123-124 (1) (539 SE2d 836) (2000); Page v. Atlanta Center Ltd., 219 Ga. App. 422, 424 (465 SE2d 456) (1995) (when a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to *432establish the conclusion sought, but must also render less probable all inconsistent conclusions); Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331) (1986) (an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility).