concurring specially.
I concur in the judgment but not in all that is written.
Plaintiff alleges that Studebaker’s was negligent in two respects, breaching two separate duties: serving alcoholic beverages to a noticeably intoxicated patron; allowing a noticeably intoxicated person to drive away from the premises. The fourth enumeration of error is: “Whether Sutter v. Hutchings should be extended to place a legal duty and responsibility upon Appellee to prevent the ‘noticeably intoxicated’ driver from driving away from its establishment, regardless of whether or not Appellee knowingly continued to serve alcoholic beverages to that ‘noticeably intoxicated’ person in violation of OCGA § 3-3-22.”
In section (a) of the opinion, which discusses whether a legal cause of action exists, we say that a cause does exist against one who serves a noticeably intoxicated person. We do not mention the other asserted duty.
*645Decided September 8, 1987 Rehearing denied October 26, 1987 Marshall R. Wood, for appellant. Dana F. Braun, Shari M. Sigman, Leesa A. Bohler, for appellee.In section (b) of the opinion, which discusses whether there are issues of fact as to the cause of action, we say there are, with respect to whether the patron was noticeably intoxicated at the time she left. This does not address whether she was noticeably intoxicated at the time she was served the last drink, which is what we recognize as constituting the cause of action because it involves the statutory duty not to provide alcoholic beverages to one who is noticeably intoxicated and intends to drive. A person may not be noticeably intoxicated when served the last drink but, after its consumption and the effects of its consumption occur, become noticeably intoxicated.
OCGA § 3-3-22 imposes a duty to refrain from providing alcoholic beverages to a noticeably intoxicated person, but no statute imposes a duty to prevent a noticeably intoxicated person from driving away from the provider’s place. I acknowledge that a jury could find that it arises from the circumstances, given the duties owed by a proprietor to an invitee and derivative duties owed to third persons, and in this regard also, the movant for summary judgment has not established its non-liability.