concurring specially.
I concur in Divisions 2, 3 and 4, and in the judgment. I write separately because I disagree with the majority’s conclusion in Division 1.
OCGA § 16-5-60 is a criminal provision. “The violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who claims to have been injured thereby.” (Citations *821and punctuation omitted.) Rolleston v. Huie, 198 Ga. App. 49, 50 (400 SE2d 349) (1990). I find no instance where this Code section has been used to create a private cause of action in tort in favor of an alleged victim. Moreover, there is nothing within the provisions of this section which affords a basis for a civil action by an alleged victim. See Rolleston, supra.
Decided July 6, 1999. H. Lehman Franklin, Jr., for appellants. Brown & Livingston, Charles H. Brown, Becky D. Livingston, for appellee.In addition, the crime of reckless conduct is, in essence an instance of criminal negligence, which
implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to be affected thereby. Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result.
(Citation and punctuation omitted.) Bohannon v. State, 230 Ga. App. 829, 830-831 (498 SE2d 316) (1998).
A review of the transcript in this case shows there is no evidence that Grant was criminally negligent. There was no testimony that Lewis had a propensity for violence, that Lewis had ever threatened to shoot or harm Key, or that Lewis had ever shot or harmed, or threatened to shoot or harm, anyone. Therefore, there is nothing in the record tending to prove that Grant should have known that the probable consequence of his handing the gun to Lewis was that Lewis would kill Key. Thus, there was no evidence that Key’s death was a reasonably foreseeable result of Grant’s action. Accordingly, the trial court correctly granted Grant’s motion in limine prohibiting any reference to a violation of OCGA § 16-5-60 (b).