Wilson v. Muhanna

Blackburn, Judge,

concurring specially.

I recognize that Georgia law provides rebuttable presumptions are only rebutted when a jury so finds, and I am constrained to follow this precedent. However, just as the court may decide proximate cause issues in clear and indisputable cases, the court should also be allowed to find that a presumption has been rebutted, and therefore, not present the presumption to the jury. This case presents such a clear and indisputable basis for the court to find that the presumption has been rebutted. Both the plaintiffs’ and defendant’s experts agreed that the defendant’s conduct failed to meet the standard of care. In such a case, the presumption is undeniably rebutted.

Decided May 26, 1994 Reconsideration denied June 29, 1994. Bovis, Kyle & Burch, James E. Singer, Dana F. McBride, for appellants. Forrester & Brim, Weymon H. Forrester, Richard C. Bellows, for appellee.

I am authorized to state that Judge Cooper joins in this special concurrence.