Baldwin County Hospital Authority v. Coney

Carley, Judge,

concurring specially.

I concur with Presiding Judge Banke’s well reasoned special concurrence with the exception of the last paragraph thereof. I totally agree with the conclusion that Bright v. Food Giant, 177 Ga. App. 641 *344(340 SE2d 272) (1986) and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) should be overruled for the reasons so clearly set forth by Presiding Judge Banke. My problem with the last paragraph of the special concurrence is that this summary of the preceding excellent analysis conditions claimant’s responsibility to produce additional evidence upon his “being furnished a full and fair opportunity to do so. . . .” That phrase is really meaningless in the procedural context of a motion for summary judgment. The real triggering event is the production by the movant-defendant of sufficient evidence to negate an essential element of plaintiff’s cause of action. Then, and only then, will the burden shift to the claimant-respondent. See generally Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988).

Decided September 9, 1988. C. Ashley Royal, Jerry A. Lumley, for appellant. Richard B. Thornton, for appellee.