concurring specially.
I cannot agree with Division 3 of the majority opinion. I find absolutely no evidence whatsoever to authorize a finding that appellant-defendant Carter was noticeably intoxicated when she was served the' last drink at appellant-defendant Studebaker’s establishment. The only evidence of her intoxication relates to points in time which were after she had been served the last drink, and there is considerable doubt whether that evidence would be sufficient to show her noticeable intoxication even at those later times. Noticeable intoxication is obviously manifested by a person’s outward appearance. One may be intoxicated without being noticeably so and one may also appear to be noticeably intoxicated after involvement in a serious automobile collision without even being intoxicated at all.
However, even assuming that the evidence would authorize a finding of appellant Carter’s subsequent noticeable intoxication, I *149nevertheless cannot agree with the majority that that evidence would be sufficient to authorize a finding that she was noticeably intoxicated when she had previously been served the last drink. Certainly no presumption would arise that she was noticeably intoxicated at that earlier time. “[T]he doctrine of continuity does not include a ‘presumption that a present proven status existed in the past,’ but only that something which exists in the present will continue until there is proof of a change. [Cit.]” Professional Bldg. v. Reagen, 129 Ga. App. 183, 185 (199 SE2d 266) (1973). Noticeable intoxication “depends in part on a person’s tolerance to alcohol, which varies among individuals and even within individuals.” Jones v. Toyota Motor Co., 243 Cal. Rptr. 611, 613 (1) (Cal. App. 1988). Accordingly, the jurors’ personal experiences would have no evidentiary bearing on the question of whether appellant Carter’s purported subsequent noticeable intoxication was indicative of her earlier noticeable intoxication and there is no expert medical testimony that appellant Carter’s subsequent intoxication was such as to indicate that she would have been noticeably intoxicated at the time she was served the last drink. Thus, under my view of the record, her noticeable intoxication at that earlier time is mere rank speculation. Compare Whelchel v. Laing Properties, 190 Ga. App. 182, 184 (2) (378 SE2d 478) (1989).
I cannot, however, dissent to Division 3. In the prior appearance of this case, it was implicitly held that appellant Studebaker’s owed appellee-plaintiff not only the initial duty to stop serving alcohol to a noticeably intoxicated person, but also a subsequent duty to prevent a noticeably intoxicated person from leaving its premises and that the evidence would further authorize a finding that appellant Studebaker’s had breached this subsequent duty owed to her. Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, 644 (b) (362 SE2d 377) (1987). “The evidence introduced on the trial of the case was in every material substance identical to that which the court considered on motion for summary judgment. . . . Hence, the rule would be applicable that the rulings on a former review, whether right or wrong, are binding on this court where the evidence on the principal issues is substantially similar. [Cit.]” Srochi v. Kamensky, 121 Ga. App. 518, 519-520 (1) (174 SE2d 263) (1970). Since the law of the case rule would mandate a holding that the evidence in the instant case authorizes a finding of appellant Studebaker’s liability for the breach of a subsequent duty to prevent appellant Carter from driving away, it necessarily follows that what I perceive to be a lack of evidentiary support for a finding of appellant Studebaker’s liability for the breach of the initial duty to stop serving alcohol to appellant Carter is ultimately immaterial.
Although I am compelled to follow Tibbs as the established law of the case, I am not compelled to agree with its holding. In my opin*150ion, Tibbs is incorrect because there is no actionable duty on the part of the provider of alcohol to prevent his noticeably intoxicated guests from driving away from the premises. There is certainly no statute which imposes such a duty. The statutory duty is to withhold alcohol from “any person who is in a state of noticeable intoxication.” OCGA § 3-3-22. Likewise, I find no authority for imposing such a duty under common law. “The traditional formula setting forth the elements of negligence are: T. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. ... ‘3. A reasonable close causal connection between the conduct and the resulting injury. . . .’ [Cits.]” (Emphasis supplied.) Sutter v. Hutchings, 254 Ga. 194, 196-197 (1) (327 SE2d 716) (1985). Insofar as the conduct of the provider of alcohol is concerned, he can certainly choose whether or not to continue to serve a guest who is then noticeably intoxicated. If he chooses to do so, “it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone.” Sutter v. Hutchings, supra at 198 (1). Under Tibbs, however, the provider of alcohol can be found liable for damages which were not the foreseeable consequences of his own conduct. Tibbs holds that the provider of alcohol to a guest who was not then noticeably intoxicated nevertheless has the subsequent duty to determine whether his guest may have become noticeably intoxicated and, if so, to require that that guest’s conduct conform to the standard which proscribes driving in such a condition. This, in effect, requires that the provider of alcohol constantly monitor the exit to his premises and attempt to stop any of his formerly sober guests who might wish to leave after subsequently becoming noticeably intoxicated or the provider will risk being held vicariously liable for the consequences of that guest’s negligent act of choosing to drive while noticeably intoxicated. It is one thing to hold that the provider of alcohol is liable for the foreseeable consequences of his own act of serving an already noticeably intoxicated guest. It is quite another to hold that the provider of alcohol is vicariously liable for the foreseeable consequences of the act of his formerly sober guest who chooses to drive away only after he has become noticeably intoxicated.
I simply cannot agree with Tibbs that the common law would authorize a recovery against the provider of alcohol in the latter situation. The provider of alcohol “is not liable to third persons for injuries caused by the negligence of the consumer where the consumer was not intoxicated at the time the alcohol was furnished. [Cit.] A person who [provides] alcohol to one who is not intoxicated is not charged with foreseeing that the [consumer] will consume an excessive amount of such alcohol and will drive a vehicle while under the *151influence of such alcohol.” (Emphasis supplied.) Sutter v. Hutchings, supra at 201 (Appendix.) Moreover, even if Tibbs were correct and liability could attach for simply allowing a formerly sober guest who has subsequently become intoxicated to drive away, I would still be compelled to find that Tibbs was erroneously decided insofar as it found sufficient evidence to authorize a finding of appellant Studebaker’s liability under that theory. As discussed above, I do not believe that the evidence as to appellant Carter’s subsequent intoxication was sufficient to show that she was noticeably intoxicated at any earlier time, including the time that she left appellant Studebaker’s premises. Compare Whelchel v. Laing Properties, supra.
I also cannot agree with Division 2 of the majority opinion and believe that the charge on appellant Studebaker’s gratuitous undertaking of the duty to prevent its guests from leaving the premises while noticeably intoxicated was erroneously given. Although appellant Studebaker’s owed non-patrons the duty not to serve alcohol to its guests if they were then noticeably intoxicated, the duty not to endanger non-patrons by driving away from the premises only after subsequently becoming intoxicated was owed by the guests themselves. There is no evidence that it was standard procedure for appellant Studebaker’s to require its guests to relinquish control over their cars or their persons, but only for it to undertake to persuade them not to drive while intoxicated. Appellant Studebaker’s cannot, therefore, be found to have gratuitously undertaken performance of the actual duty owed by its guests to refrain from driving while intoxicated. “An actor is liable for his negligent performance if he has undertaken to perform a legal duty owed by the other to the third person on behalf of and in lieu of that other. Liability does not arise in the situation when ‘one undertakes to perform functions coordinate to — or even duplicative of — activities imposed on another by a legal duty, but rather [liability does arise in] the situation in which one actually undertakes to perform for the other the legal duty itself.’ [Cit.]” (Emphasis in original.) Lather v. Berg, 519 NE2d 755, 766 (8) (Ind. App. 1988). “Because [appellant Studebaker’s] had no right to prevent [appellant Carter] from driving and never took control [of her car, appellant Studebaker’s] cannot be held liable for failing to prevent [her] from driving.” Lather v. Berg, supra at 767 (10). Any gratuitous undertaking merely to reinforce rather than actually to perform the duty that was owed by its intoxicated guests to non-patrons would not give rise to liability against appellant Studebaker’s and, in my opinion, the contested charge was erroneously given.
Again, however, I cannot dissent to Division 2 because the law of the case rule prevents it. Under Tibbs, it is of no consequence whether appellant Studebaker’s gratuitously assumed the duty to prevent its guests from leaving the premises while noticeably intoxicated *152because such a duty was nevertheless owed as a matter of common law. If the duty was owed as a matter of common law, it necessarily follows that an erroneous charge which predicates appellant Studebaker’s liability on the gratuitous assumption of that duty would constitute harmless error. Accordingly, I am in the anomalous position of concluding that that which I perceive to be reversible error in the instant case must be considered to be harmless as the result of the previous decision of this court, which constitutes the law of the case.
Decided March 16, 1990 Rehearings denied March 28, 1990 Dana F. Braun, for Studebaker’s. Marshall R. Wood, for Tibbs. Leesa A. Bohler, for Carter.I am “in sympathy with [appellant Studebaker’s] arguments] [as to Divisions 2 and 3] but find [myself], through application of the law of the case rule, without the authority to [find reversible error] in the context of this appeal. . . . The [Tibbs] decision, [which I consider to be] wrong, being the law of the case, binds this court in the instant appeal. [Cit.] ‘While the holding in [Tibbs] on its previous appearance before this court may be reviewed and overruled [by this court] in another case, as between these parties it must stand. [Cit.]’ [Cit.]” Redmond v. Blau, 153 Ga. App. 395, 396 (265 SE2d 329) (1980). Since only the Supreme Court would be authorized to overrule Tibbs and find reversible error in the instant case, I must reluctantly concur in the majority’s judgment of affirmance.