concurring specially.
I concur with the majority that the grant of summary judgment in Case No. A98A0622 must be reversed because there exists a genuine issue of material fact as to the issue of foreseeability. And, I agree with the majority insofar as it reverses the grant of summary judgment which was entered based upon a theory of assumption of the risk in Case No. A98A0621, albeit my concurrence is based upon a different analysis from that applied by the majority.
“When one assumes the risk of the wilful and wanton misconduct of another a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in.” Roberts v. King, 102 Ga. App. 518, 523 (116 SE2d 885). While the majority declines to follow this holding and concludes that the better view is found in authorities holding that assumption of the risk is not a valid defense and is not a bar in claims arising from wilful and wanton conduct, I note that there is no acknowledgment by the majority of the distinction upon which this holding is based. Roberts, like the case sub judice, involves a plaintiff who ostensibly consents not simply to negligent conduct on the part of defendant but consents to wilful and wanton conduct on the part of defendant. None of the authority relied upon by the majority involves such a plaintiff, who has consented to wilful and wanton conduct on the part of the defendant, and in my view those cases cited by the majority should be distinguished on this basis.
Instead, I would look to recent decisions of this Court and of the Supreme Court of Georgia which carefully define the appropriate analysis which is appropriate in review of cases involving the defenses of assumption of risk and contributory negligence. In Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524), this Court returned to a bedrock principle by noting that the knowledge of risk at issue with regard to the defense of assumption of risk is subjective knowledge. “ ‘The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary *167prudence who appears in contributory negligence.’” (Emphasis in original.) Id. at 824 (4). This principle is acknowledged by the Supreme Court of Georgia, which states that knowledge of the risk “means both actual and subjective knowledge on the plaintiff’s part.” (Punctuation omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866).
In the case sub judice, the evidence establishes that at the time of the incident, Michael McEachern was noticeably intoxicated, and plaintiffs argue that this evidence was sufficient to create a jury question as to what he understood and appreciated. The same argument in substance was addressed by this Court in Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244), and rejected on the basis of a rule that the acts and conduct of one voluntarily intoxicated will be measured by the same rules as those applying to a sober person. See also Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 667 (88 SE2d 6). However, and with all due respect to the analysis of this issue on the part of the majority, this objective standard cannot be reconciled with the requirement of Vaughn and Beringause, that, for purposes of an assumption of risk defense, knowledge of the risk be examined under a subjective standard which considers the actual circumstances of a plaintiff. We are bound to follow the controlling authority of the Supreme Court of Georgia’s decision in Vaughn v. Pleasent, 266 Ga. 862, 864 (1), supra, tacitly overruling Lawrence in part, as well as such conflicting portions of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 667, supra, as may have remained viable following the decision in Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788). Consequently, Division 3 of the Lawrence decision should no longer be followed.
“ ‘In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. (Vaughn v. Pleasent, 266 Ga. 862, 864[, supra]); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824[, supra]. A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824.’ Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486).” Desai v. Silver Dollar City, 229 Ga. App. 160, 164 (3), 165 (493 SE2d 540).
Applying a subjective standard in assessing what Michael McEachern knew, understood, and appreciated, it is clear that the evidence as to the length of the period of time he had been drinking, the description of the beverages that were being consumed, and the testimony concerning his demeanor, including that regarding state*168ments he made with respect to the subject of suicide and otherwise expressing a depressed state of mind, were sufficient to create a question of fact concerning whether he was so intoxicated or depressed as to be unable to understand and appreciate the risks associated with defendant Muldovan’s actions. Thus, I would hold that a grant of summary judgment based on a theory that Michael McEachern had assumed the risk of being shot is not authorized by the evidence.
Neither should the conduct of Michael McEachern be deemed to have established the defense of contributory negligence as a matter of law. There is evidence that defendant Muldovan was aware that the gun was loaded and thus engaged in wilful and wanton conduct in pointing the gun at Michael McEachern and pulling the trigger. Such wilful and wanton conduct should preclude a defendant from relying upon the defense of contributory negligence. Williams v. Knight, 211 Ga. App. 420 (1) (439 SE2d 507); Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 111 (2) (a) (387 SE2d 144); Terrell v. Hester, 182 Ga. App. 160 (2) (355 SE2d 97); Intl. Assn. of &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 436 (11) (254 SE2d 438).
Also, in Case No. A98A0621,1 concur with the affirmance of the grant of summary judgment on behalf of Muldovan as to claims based on allegations of negligent conduct. Again, although I do not embrace the reasoning of the majority, I believe that this portion of the judgment below is correct under a right for any reason analysis and application of the objective standard of the contributory negligence defense.