concurring specially.
Case No. 77118 (Cross-Appeal)
I concur in the disposition but not in all that is said in Divisions 3 & 4, for reasons which will appear below.
Case No. 77117 (Main Appeal)
1. As to Division 3, in Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), the Supreme Court of Georgia coupled OCGA § 3-3-22 with OCGA § 51-1-6 to hold that in Georgia, a civil cause of action lies in certain circumstances to recover for a breach of the duty derived from the prohibition in OCGA § 3-3-22. (That case also held that the additional duty specified in OCGA § 3-3-23 relating to minors who also breached because the consumer was a minor.)
OCGA § 3-3-22 simply states: “No alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication.” It does not limit this prohibition to serving drivers of motor vehicles. It clearly states that serving anybody who is noticeably intoxicated is prohibited.
OCGA § 3-3-22 is a criminal law. Ga. L. 1980, pp. 1573, 1596, 1649. See Nunn v. Comidas Exquisitos, 166 Ga. App. 796 (305 SE2d 487) (1983); Riverside Enterprises v. Rahn, 171 Ga. App. 674 (320 SE2d 595) (1984). The Act provided, in former Code § 5A-509, that furnishing alcoholic beverages to intoxicated persons (and minors) is prohibited, and in Code § 5A-9901 it gave enforceability to prohibiting that forbidden activity by making it a misdemeanor if it is done “knowingly and intentionally.” The prohibition appeared in Chapter 5A-5, which set out regulatory provisions applicable to alcoholic beverages and began: “The businesses of manufacturing, distributing, selling, handling, and otherwise dealing in or possessing alcoholic beverages are declared to be privileges in this state and not rights.” Code § 5A-501 (OCGA § 3-3-1). The chapter then imposes controls, including licensing requirements, primarily on the commercial establishments described. The dissent in Southern Bell Telephone &c. Co. v. Altman, 183 Ga. App. 611, 613 (359 SE2d 385) (1987) noticed this and regarded the related OCGA § 3-3-23 to have been “enacted by the Legislature to apply to commercial purveyors of alcoholic beverages,” as demonstrated by OCGA § 3-3-1. See also Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, 643 (a) (362 SE2d 377) (1987).
Although the section regarding intoxicated persons appears in this business context, the Court in Sutter both declared it a civil as well as a criminal duty and extended it beyond businesses to private persons furnishing gratuitous alcoholic beverages, such as Mrs. *189Hutchings.
But the civil duty was not as broad as stated in the statute. Instead of matching the civil duty with the criminal duty insofar as who could be served is concerned, the Court limited it to motor vehicle drivers. This newly recognized actionable duty was founded on the Court’s taking judicial notice of 1) “risks involved” when an intoxicated person drives, and 2) “the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways, . . . .” Id. at 197. These two factors, then, are what gave rise to the articulation of a civil duty in OCGA § 3-3-22 (formerly Code § 5A-509) and to its limitation to drivers. That is, the statutory criminal duty of commercial establishments not to serve an intoxicated person was made the civil duty of purveyors and hosts alike, when it was known the drinker would drive. Breach by continuing to serve such a person who was noticeably intoxicated would constitute negligence per se. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985), discusses the negligence per se principle. See also Note, 9 Ga. L. Rev. 239, 258 (1974).
Thus the Supreme Court narrowed the civilly actionable duty even further. The criminal law, as stated, prohibits at least the businesses described in OCGA § 3-3-1 from “knowingly and intentionally” furnishing alcoholic beverages to intoxicated persons. Never mind what the liquor purveyor knows or does not know the intoxicated person will or might do afterwards; that is irrelevant. What matters is whether the purveyor knowingly and intentionally furnished an alcoholic beverage to a noticeably intoxicated person, period.
In addition to the statutorily required knowledge, that the person was intoxicated when another alcoholic beverage was about to be served, the Court required another knowledge before a civil duty arose: knowledge that the intoxicated person would soon be driving a motor vehicle. That, of course, would require a present knowledge of a future happening, a future fact. No human being has such a capacity, so the Supreme Court could not have meant actual knowledge in that sense. This is so also because when turning to the element of proximate cause, the Court concluded that proximate cause will exist if the provider could, when furnishing that beverage to an intoxicated person, reasonably foresee that the person would be driving and also that someone may be injured as a result. Id. at 198.
The legislature cannot be said to be concerned only with drunk drivers, either by this prohibition or even because of the existence of the drunk driving laws. Common sense and experience demonstrate that intoxicated persons often get into fights, are disorderly, hurt themselves, batter their spouses and partners, assault their children, and act in other ways injurious to members of the general public. The majority acknowledges this by stating: “The statutory duty recog*190nized by Sutter has been broadly construed to provide Georgia citizens with a modicum of protection from the varied reasonably foreseeable and life-threatening risks involved in continuing to serve alcoholic beverages to noticeably intoxicated persons. We believe this was the legislature’s intent in enacting OCGA § 3-3-22.”
However, the Supreme Court found the only declared public policy involving drinking and harm to third persons to be in the D.U.I. laws. It did not say a person harmed by an intoxicated person in a non-motor vehicle confrontation would likewise have a cause of action. In any event, such a question is not before us in the circumstances of this case, because a driver is involved, and since the Supreme Court has limited the civil duty, so that it does not arise unless the provider at that time has some knowledge that the intoxicated person will drive, we must do the same.
I do not agree with the majority that this knowledge of a future fact must be actual. It involves instead the prediction of conduct, as Keaton v. Kroger Co., 143 Ga. App. 23, 28 (237 SE2d 443) (1977) recognized. In applying the principles inherent in Sutter, the duty must be found to arise when, under all the circumstances, a person in the shoes of the provider would reasonably foresee that the intoxicated person to whom he is about to furnish an alcoholic beverage will drive while intoxicated to the degree that harm is reasonably foreseeable (or “that the intoxicated driver may injure someone,” in the words of Sutter, supra at 198.) Circumstantial, and not only direct, evidence would suffice.
As quoted in the dissent in Southern Bell, supra at 617, issues of “ ‘lack of ordinary care in failing to foresee or observe the negligence of another, are ordinarily not susceptible of summary adjudication [Cit.] and unless only one conclusion is permissible [Cits.], the issue should be resolved by the jury . . . , and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ ”
As in Brumbelow v. Shoney’s Big Boy, 174 Ga. App. 160, 161 (329 SE2d 319) (1985), there is a genuine dispute as to the defendants’ knowledge “that [Warren] would be driving.”
Just because in the cases following Sutter the intoxicated person’s imminent driving was fairly foreseeable does not mean that it has to be an absolute certainty. (In Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, supra at 644, e.g., it was uncontroverted that defendant, “through its agents, knew [the patron] would be driving a vehicle.”) While the duty may only devolve on one who actually knows the person he is furnishing the beverage to is then intoxicated in the sense that it is, in the words of the statute, “noticeable,” at that point in time the most that the host or purveyor would know with respect to driving is that it was reasonably foreseeable that the *191person would drive. For the actionable duty to arise, the potential defendant must be on present notice that the drinker would soon drive. To say that the purveyor must actually know this fact before it is fact eliminates the duty, for all practical purposes. The same demise would result from saying that only direct evidence of knowledge would raise the duty.
Here, of course, there is evidence that E & G’s vice-president knew Warren would be driving when she was served drinks, as this is a reasonable inference from the circumstances, including the fact that arrangements were made for her to drive his wife to the second party in Warren’s own car. So I agree that E & G, as host, was not entitled to summary judgment.
As to the purveyor Laing, it would appear that if the statute as such is viewed as raising the civil duty, it would not matter whether the purveyor had knowledge that the intoxicated person would drive, and whether that knowledge was actual or constructive, direct or indirect, or even reasonably foreseeable. The duty would be founded solely on the presentation to a business, as described in OCGA § 3-1-1, (referred to as a “commercial establishment” in Tibbs, supra, 643-644), of a noticeably intoxicated person who sought another drink. The duty will have arisen from the desire to protect the general public from whatever that intoxicated person would do if he had another drink. But since the Supreme Court limited the civilly actionable duty itself, to one where there is knowledge of imminent driving, the knowledge element also applies to Laing. Thus, whether it was reasonably foreseeable to Laing that Warren would drive must be determined by the jury from the circumstances known by the employee who served Warren.
It is to be noted that, by the 1988 enactment of OCGA § 51-1-40, which was not yet in effect when the death here occurred, the General Assembly expressly created a civil duty with respect to those intoxicated persons whom the purveyor or host knows “will soon be driving a motor vehicle.” The breach, followed by proximate cause and damage, will give a statutory cause of action in tort. Under this enactment, as under Sutter but not under OCGA § 3-3-22 itself, knowledge of imminent driving is made a prerequisite before a provider has a duty to stop serving.
2. As to Division 4, I cannot go so far as to say that, as a matter of law, the circumstances shown establish that Warren was not in the scope of her employment while at the E & G party at the hotel. See Divecchio v. Mead Corp., 184 Ga. App. 447, 448 (361 SE2d 850) (1987). Whether she was or not is not material, however, because as the majority states, it is her status at the time the injury is inflicted that is determinative.
*192Decided January 23, 1989 Rehearings denied February 7, 1989 Hylton B. Dupree, Jr., Mark A. Johnson, for appellants (case no. 77117). Malcolm P. Smith, G. Melton Mobley, for appellees. Neely & Player, Taylor Tapley Daly, Richard K. Hines V, for appellants (case no. 77118). Hylton B. Dupree, Jr., Mark A. Johnson, for appellees.