¶1dissenting.
¶2I concur in Divisions 1 and 2 of the majority opinion. However, I must respectfully dissent to the majority’s holding in Division 3 and the judgment.
¶3In my opinion, the facts in this case neatly fit the holding in the case of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In that case, the court said:
A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
¶5With its motion for summary judgment, defendant H & H Operations produced the affidavit of Diane Mayes, the sales clerk that alleg*657edly sold the alcohol to McQuithy. Under oath, Ms. Mayes said that she was the only cashier working on the evening of September 24, 1988. She claims that she has never knowingly sold alcohol to a minor; that she did not remember selling alcohol to McQuithy; and that even if she did sell alcohol to McQuithy, she neither knew that he was a minor nor that he would soon be driving a motor vehicle. Appellants argue that because Ms. Mayes admits in her affidavit that she did not remember selling alcohol to McQuithy, she could not possibly remember if she knowingly sold the alcohol to a minor.
¶6The statute requires that the defendant have implied knowledge that the underaged drinker will be driving soon. In his deposition, McQuithy reveals only that he parked his car in the parking lot. Under our holding in Lau’s, the plaintiffs must come forward with some facts to support a claim that Ms. Mayes knew or should have known that McQuithy would be driving soon. Appellants point to no such evidence. The burden of implied notice does not impose upon the defendant the affirmative duty to inspect the parking lot to discover who is driving. An essential element of the plaintiff’s case, any knowledge that McQuithy would be driving soon, is missing.
¶7Because the plaintiffs failed to meet the burden imposed upon them by our holding in Lau’s, it is my opinion that the defendant is entitled to a summary judgment.
¶8I am authorized to state that Presiding Justice Hunt and Justice Fletcher join in this dissent.