                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE


RAY DEAN BURGESS,                                 )
                                                  )                          FILED
       Plaintiff/Appellant,                       )
                                                  )                             July 10, 1996
                                                  )      Putnam Circuit
VS.                                               )      No. J-4736          Cecil W. Crowson
                                                  )                         Appellate Court Clerk
                                                  )      Appeal No.
ANTHONY S. HARLEY,                                )      01-A-01-9502-CV-00045
                                                  )
       Defendant                                  )
                                                  )
and                                               )
                                                  )
PUTNAM COUNTY HIGHWAY                             )
DEPARTMENT and PUTNUM                             )
COUNTY, A BODY POLITIC,                           )
                                                  )
       Defendants/Appellees.                      )


                         SEPARATE CONCURRING OPINION


       Concurring in the result reached, I respectfully assert my conviction that, when a

Defendant moves for summary judgment the burden of producing evidence to support

evidence of every aspect of his case does not pass to the Plaintiff until Defendant has

produced or pointed out evidence to negative every aspect of the case. The burden shifts to

the Plaintiff only to contradict the evidence offered or pointed out by Defendant.



       Of course, evidence that Plaintiff cannot prove one or more aspects of his case does

shift the burden to Plaintiff to show how he can prove such aspects, but proof of such

inability must come from Plaintiff’s admissions or equally substantive evidence. As stated in

Byrd v. Hall, (Tenn.1995), 847 SW2d, 213, “a conclusory assertion that the non-moving

party has no evidence is clearly insufficient.”

                                                  Respectfully submitted,



                                                  ______________________________________
                                                  HENRY F. TODD
                                                  PRESIDING JUDGE, MIDDLE SECTION
