Johnson, Presiding Judge.
This is an appeal from the grant of summary judgment to defendants Michael Muldovan and Benjamin Graham. The plaintiffs are Marie McEachern and Paul Michael McEachern, the parents of the decedent Michael McEachern, individually, and Marie McEachern as temporary administratrix of the estate of the decedent. For the reasons discussed below, the grant of summary judgment as to intentional tort and wilful and wanton conduct counts in Case No. A98A0621 must be reversed. The grant of summary judgment in Case No. A98A0622 also must be reversed because there exists a genuine issue of material fact as to issues of foreseeability and remoteness. The grant of summary judgment to Muldovan as to the negligence counts in Case No. A98A0621 is affirmed.
Defendant Michael Muldovan and Michael McEachern (McEachern) were best friends. One evening, these two seventeen-year-olds and others gathered at the home of a friend. Muldovan and McEachern, along with other teenagers present, were drinking alcoholic beverages. During the evening, McEachern and others left the residence to obtain more alcoholic beverages and returned with still more friends.
McEachern possessed a handgun that evening which previously had been sold by Graham to Muldovan, a minor. He was showing it, pointing it, and operating its mechanism in the presence of the others. This conduct occurred before McEachern left the residence, while he was away from the residence, and again upon his. return to the residence. His conduct was apparently such that several teenagers became concerned about the manner in which he was handling the handgun.
During the trip for more alcohol, a temporary stop was made at another residence where McEachern showed the handgun to Stephanie Cronin. Cronin was initially frightened by the handgun but became reassured when McEachern told her it was not loaded and [153]*153that the bullets were in his pocket. After returning to the gathering, McEachern took out the handgun and started pulling the hammer back —pointing it at different people and objects and snapping the trigger. Cronin again expressed her concerns to McEachern, and he again told her there were no bullets in the handgun. Cronin grabbed the handgun and ran outside. McEachern followed and regained possession of the handgun. Both Cronin and Muldovan told McEachern to put the handgun away because he was scaring people.
Some time later, Cronin, Muldovan, McEachern and two other teenagers sat around a small kitchen table in the residence. McEachern again displayed the handgun. He and Muldovan began to pass it back and forth, pointing it at each other and snapping the trigger. McEachern would load and unload the handgun. Cronin again expressed concern about how the handgun was being handled, and Muldovan opened the chamber to show her that it was not loaded.
McEachern left the table with the handgun tucked in his waist and the bullets in his pocket. When he returned, he loaded the handgun, pointed it at Muldovan’s head and pulled the trigger. There is conflicting evidence whether Muldovan saw McEachern put a bullet in the chamber of the handgun. McEachern handed the handgun to Muldovan who pointed the handgun at him and pulled the trigger. McEachern told Muldovan to do it again. When Muldovan pulled the trigger again, the handgun fired, fatally wounding McEachern.
This action for damages arises from the death by gunshot wound of Michael McEachern. The amended complaint alleges that Muldovan fired the fatal shot and states claims against him based on negligence, the intentional tort of battery, and wanton and reckless conduct. Claims are asserted against Benjamin Graham based on negligence and wanton and reckless conduct by furnishing a pistol to a minor. These appeals are taken only from the grant of summary judgment to Muldovan, Case No. A98A0621, and Graham, Case No. A98A0622.
1. “Perhaps more than any other branch of the law, the law of torts is a battleground of social theory. Its primary purpose, of course, is to make a fair adjustment of the conflicting claims of the litigating parties. . . . The influence of public policy on tort law is apparent, and most likely to be controversial, when it comes to bear upon a proposed change that is accomplished by overruling an established precedent.” Prosser & Keeton, Law of Torts (5th ed.), Introduction, Policy & Process, pp. 15-16, § 3. Society has an interest in the outcome of cases: first, in having a single dispute between individuals resolved in a fair and timely manner; and secondly, because of the system of precedent on which the entire common law is based. Id. at p. 16. “Under this system, a rule once laid down is to be followed until the courts find good reason to depart from it.” Id. Accordingly, courts [154]*154should “make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future.” Id. With this sage and long-standing principle in mind, we address the relevant issues under consideration in this case.
In Georgia, the doctrine of contributory negligence developed from two century-old statutes, now codified as OCGA §§ 46-8-291 and 51-11-7. OCGA § 51-11-7 (formerly Ga. Code Ann. § 105-603; Orig. Code 1863 § 2914) provides: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” (Emphasis supplied.) OCGA § 51-11-7 historically has been interpreted as stating two different rules: one is the duty of a person to avoid injury to himself by the exercise of ordinary care, and the second provides for a recovery where the negligence of the plaintiff partially contributes to the injury. Editorial note to Ga. Code Ann. § 105-603. It is primarily from this statute that the doctrine of assumption of the risk evolved, after first being viewed as a special type of contributory negligence. See generally Roberts v. King, 102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960); 57B AmJur2d, Negligence, §§ 1377-1378. Georgia still follows the traditional view that assumption of risk is a separate defense from comparative negligence which, when applicable, exculpates the defendant. Id. at § 1380.
“The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.
“Knowledge of the risk is the watchword of assumption of risk and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” (Citations and punctuation omitted; emphasis in original and supplied.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). “Assumption of risk in its simplest and pri[155]*155mary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with the knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded for tacitly or impliedly agreeing to take his own chances. . . . [Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may co-exist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.” (Citation and punctuation omitted.) Roberts, supra at 521 (1).
While the doctrine of assumption of the risk was developing in this state, the totally separate concept of voluntary intoxication was being formulated based on entirely different legal and policy considerations. “The whole theory of negligence presupposes some uniform standard of behavior.” Prosser & Keeton, supra at p. 173, § 32. In forging the requisite standard of conduct in negligence cases, mental capacity of the actor generally was an external consideration. “ ‘The law,’ says Mr. Justice Holmes . . . , ‘takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men.’ ” Id. at p. 176, § 32. Thus, the law recognized very early that “[o]ne who becomes intoxicated is held thereafter to the same standard as if he were a sober person.” Id. at p. 178, § 32. Two major public policy considerations supporting this rule are: (1) an excuse based on intoxication would be far too common and too easy to assert; and (2) drunkenness is so antisocial that one who indulges in it ought to be held to the consequences. Id. Thus, this Court has held: “If ordinary care under certain circumstances would require that a certain thing should be done, the requirement is binding on a man whether sober or drunk; and getting drunk will not relieve the person from that duty. To hold otherwise would be to put a premium upon drunkenness. [Cit.] A similar rule has been applied in holding that voluntary drunkenness furnishes no excuse for crime. If ordinary care is not the measure of diligence required in the particular case, what is said above is equally applicable to the degree of diligence which is required.” Powell v. Berry, 145 Ga. 696, 699 (1) (89 SE 753) (1916).
These long-standing legal and policy considerations form the basis from which we must address the primary issues in this case.
[156]*1562. The trial court erred in granting defendant Muldovan’s motion for summary judgment as to the averred intentional tort of battery and as to averred claims based on Muldovan’s wilful, wanton, and reckless conduct.
(a) We first address the question of whether the conduct of Michael McEachern may be deemed to have established the defense of contributory negligence as a matter of law to the asserted wilful and wanton and intentional torts. The answer is no. Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 126 (460 SE2d 824) (1995) (contributory negligence is not a bar to an intentional tort); Intl. Assn. of &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 436 (11) (254 SE2d 438) (1979) (contributory negligence is not a defense to a wilful tort); see Garrett v. NationsBank &c., 228 Ga. App. 114, 118 (491 SE2d 158) (1997).
(b) “Assumption of the risk is a defense to a negligence claim, not a defense to a claim that is predicated upon an intentional tort such as battery.” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (2) (387 SE2d 593) (1989); Terrell v. Hester, 182 Ga. App. 160 (2) (355 SE2d 97) (1987) (tort of battery was an intentional one to which an application of OCGA § 51-11-7 and an assumption of risk charge were not appropriate); see Intl. Assn. of &c. Iron Workers, supra at 436 (11) (assault and battery claim; trial court did not err in refusing to give assumption of risk charge as contributory negligence is not a defense to an alleged wilful tort); Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704, 715 (11) (120 SE2d 636) (1961), overruled in part on other grounds, OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 667 (386 SE2d 146) (1989); compare Williams v. Knight, 211 Ga. App. 420 (1) (439 SE2d 507) (1993) and Hopkins v. First Union Bank &c., 193 Ga. App. 109, 111 (2) (a) (387 SE2d 144) (1989) holding that assumption of risk is not a valid defense “to intentional, wilful, or wanton and reckless torts”; see also Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989) (Court of Appeals erred in holding assumption of risk statute had no bearing in the case because defendant owner was being negligent, although the manager and her husband were being sued for allegedly committing intentional torts).
There is some authority supporting a conclusion that plaintiff’s assumption of the risk is a valid defense and will bar his or her cause of action even when there exists wilful and wanton misconduct on the part of the defendant. Sewell v. Dixie Region Sports Car &c., 215 Ga. App. 611, 612 (1) (451 SE2d 489) (1994); Newman v. Collins, 186 Ga. App. 595, 596 (1) (a) (367 SE2d 866) (1988) (physical precedent only); Roberts, supra at 520 (1) and hn. In Adams & Adams, Ga. Law of Torts (1997 ed.), § 19-1, the authors likewise conclude that plaintiff’s assumption of the risk will serve to bar his or her cause of action if [157]*157predicated upon acts of wilful and wanton misconduct but recognize that an assumption of risk defense is unavailable to bar a tort claim predicated upon an intentional act. The better view, however, is found in those 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. See generally Williams v. Knight, supra at 420 (1), and Hopkins v. First Union Bank, supra at 111 (2) (a), holding that assumption of risk is not a valid defense “to intentional, wilful, or wanton and reckless torts.”
In our view, the holdings in Williams, supra, and Hopkins, supra, are more persuasive. First, it has long been recognized that wilful and wanton conduct is not a form of negligent conduct but is a separate and distinct degree of conduct that more closely equates to intentional conduct. “There is an element of intent, actual or imputed, in wilful and wanton conduct which removes such conduct from the range of conduct which may be termed negligent.” (Punctuation omitted.) Martin v. Gaither, 219 Ga. App. 646, 652 (466 SE2d 621) (1995). Thus, reason dictates that the assumption of the risk doctrine would not be a valid defense and would not bar claims arising from wilful and wanton conduct. The result would, instead, be such as occurs when a claim arises from an intentional tort. Second, OCGA § 51-11-7 pertinently provides that a plaintiff is not entitled to recover when, by exercise of ordinary care, he could have avoided the consequences of the defendant’s “negligence.” If the legislature had intended plaintiff’s assumption of the risk to preclude recovery when the defendant was engaged in the commission of an intentional tort or one involving wilful and wanton conduct, it could easily have so provided.
To the extent the trial court granted summary judgment to Muldovan as to the intentional tort claim of battery and as to claims based on Muldovan’s averred wilful and wanton conduct, on the grounds that McEachern had assumed the risk, it erred, and that ruling must be reversed.
(c) In granting summary judgment in favor of Muldovan, the trial court concluded that McEachern “had actual knowledge of the danger presented by Muldovan pointing the [loaded] pistol at him and pulling the trigger, he understood and appreciated the risk and voluntarily exposed himself to that risk.” In reaching this conclusion, the trial court, citing Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244) (1973), further determined that “[a]lthough the evidence establishes McEachern, at the time of the incident, was noticeably intoxicated ‘the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person.’ ” Id.
It has been contended that Lawrence, supra, and the seminal case of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (88 SE2d [158]*1586) (1955) have been implicitly overruled by the holding in Vaughn v. Pleasent, supra at 864 (1); Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788) (1984) and Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524) (1991). We disagree.
For more than a century, Georgia has followed the rule that one who becomes voluntarily intoxicated is held thereafter to the same standard as if he were a sober person. This rule has been applied in a variety of tort situations, particularly in incidents involving trains. See generally Rollestone v. Cassirer & Co., 3 Ga. App. 161, 174 (4) (59 SE 442) (1907) and cases cited therein. In adopting this special rule for voluntary intoxication cases, our courts long ago weighed the relevant legal and policy factors and concluded that voluntary intoxication should not relieve persons of their duty to use due care for their own safety or to discover and appreciate the nature of clear and apparent risk. See generally Southland Butane, supra; Shuman v. Mashburn, 137 Ga. App. 231, 232-237 (1)-(3) (223 SE2d 268) (1976). Thus, in Rollestone, supra, this Court observed: “That school of jurists who consider torts as akin to crimes apply to the case of a drunk man, as to his capacity both for negligence and for contributory negligence, the ancient maxim that drunkenness is no excuse for crime. The other school, although they do not base their theories of tort on the criminal law, just as uniformly hold the drunk man responsible for his conduct under a given state of circumstances as if he were sober. Irrespective of the various reasons given, all courts now hold that the drunk man, so far as his own conduct is concerned, is to be considered, in all matters of volition, judgment, caution, and general mental state, just as if he were sober. The state of mind produced by intoxication will be disregarded in viewing his actions, and he will be judged as if he possessed his normal capacities. . . .Wherever, [in] the transaction as it occurred, a sober man could not recover, on account of his contributory negligence in having acted imprudently or rashly or in failing to use [due] care to avoid injury, the drunk man will likewise be precluded. As against himself, the acts of a drunk man will afford the same concurrence with the negligence of the opposite party creating the juridic cause of his injury as if he were sober; and to the same extent, his acts may so intervene as to interpose a proximate cause between the defendant’s negligence and the injurious result, and this may make the defendant’s wrong juridically remote.” (Emphasis supplied.) Id. at 174-175 (4).
In Southland Butane, supra at 667, the Supreme Court stated: “The rule is so well established in this [sítate that the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person, that citation of the numerous decisions to that effect by both this court and by the Court of Appeals is deemed unnecessary.” The Supreme Court further held that the deceased vol[159]*159untarily got drunk, and while in that condition placed himself in a state of peril, and that such conduct evinced a total want of care which a man of common sense would take of himself and was nothing short of gross negligence. Id. at 668. In concluding that a verdict was demanded for the defendant, the Supreme Court opined: “ ‘One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned.’ ” Compare Lawrence, supra at 2 (3); see also Adams & Adams, supra at § 19-2. This Court in Lawrence, supra at 2 (3), followed the holding in Southland Butane, supra, that the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person and affirmed the grant of summary judgment in favor of the defendants. In so ruling, it was held that, under the existing facts, plaintiff’s son had assumed whatever risk might develop and an action for his death was barred. Lawrence, supra at 1 (1) (son was a passenger in an automobile engaged in a drag race at a speed of approximately 100 mph; he knew the driver intended to race and acquiesced in such conduct). Southland Butane, supra, and Lawrence, supra, are consistent with the principle that “the plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. There are some things . . . which are so far a matter of common knowledge in the community, that in the absence of some satisfactory explanation a denial of such knowledge simply is not to be believed.” Prosser & Keeton, supra at p. 488, § 68; compare Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343 (433 SE2d 344) (1993). McEachern was a primary actor in this “Russian Roulette” type of conduct; the results of such “a bizarre pastime with a lethal weapon” are “obvious and well-known.” See Thompson v. Prudential Ins. Co. &c., 84 Ga. App. 214, 220 (66 SE2d 119) (1951) (insured knew the handgun was loaded and deliberately did not determine whether the handgun would fire when he pulled the trigger).
Fountain, supra, is factually distinguishable from the facts of this case and is not controlling. The “question” in Fountain concerned “Thompson’s duty of care toward Fountain.” Id. at 256-258. Examination of Vaughn, supra, and Beringause, supra, establishes that voluntary intoxication neither was at issue nor otherwise expressly addressed by the appellate courts in these cases. We are unwilling to find that the time-tested precedent pertaining to voluntary intoxication — a precedent based on the balancing of sound public policy interests — should be invalidated on the unnecessary assumption that our Supreme Court intended to overrule such an important doc[160]*160trine by mere implication. Such a holding would run contrary to the long-standing appellate rule that issues which merely lurk in the record, neither brought to the appellate court’s attention nor ruled upon, are not to be considered as having been so decided as to constitute precedent. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960). Also, the adoption of “a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that [for some reason peculiar to his alleged situation, such as voluntary intoxication,] he did not know or understand the risk.” Prosser & Keeton, supra at p. 487, § 68. We will not cast away the well-reasoned voluntary intoxication principle unless and until the law requires that we do so. This precedent has withstood the test of time. While in some instances stability in the law must give way to changing technology and justice, “ ‘[stability and certainty in law are desirable; stare decisis is a valid and compelling basis of argument.’ ” State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515, 518 (390 SE2d 885) (1990). While a decision may be overruled directly or impliedly, as by a refusal to apply it in subsequent cases, the overruling or reversal of a decision, or of one proposition of a decision, does not argue unsoundness therein as to other separate and distinct propositions. Id. at 517.
Even if McEachern’s state of intoxication were to be considered as a factor, under the facts of this case, summary judgment in behalf of the defendant as to all claims based, on negligence is appropriate. The perilous and openly dangerous nature of McEachern’s conduct is beyond question. McEachern loaded the handgun himself; he possessed enough faculty of mind and physical dexterity to accomplish this act. He had the physical dexterity to point the handgun at Muldovan and pull the trigger. Muldovan was then handed the handgun by McEachern so he could perform a similar act toward McEachern. When the handgun failed to discharge, McEachern directed Muldovan to pull the trigger again. McEachern’s own words and conduct unequivocally announce and establish his existing intent. His words and conduct establish, first, that he had enough sobriety to intend that Muldovan point and repeatedly pull the trigger of the handgun which McEachern personally had loaded with a bullet, and second, that he appreciated what it was that he desired Muldovan to do. Compare Shuman, supra at 235. Under the uncontroverted facts of this case, the jury could draw but one conclusion: that McEachern, knowing the handgun was loaded, intended that Muldovan point it at him and pull the trigger and that Muldovan do so without ascertaining in what position the round was chambered. Compare Tennison, supra. That McEachern chose to subject himself to such an open, obvious and senseless danger — a danger of his own creation — is a tragic misfortune, but the appellate process affords us no latitude to [161]*161make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky. We must interpret the law and apply it with an even hand. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67) (1993). Obviously, this Court cannot predict all possible circumstances which could arise in tort cases involving voluntary intoxication. For example, where plaintiff’s intoxication is either the sole or concurrent proximate cause of injury, Southland Butane, supra, causes assumption of risk to bar recovery, except where the doctrine of last clear chance is presented by the evidence. Compare Fountain, supra. Accordingly, we are neither holding nor implying herein that voluntary intoxication, per se, will always result in a bar to recovery.
3. The trial court erred in granting summary judgment to Graham. The evidence before the court presented a question for jury resolution whether it was foreseeable that Muldovan would engage in some form of negligent or intentional conduct after Graham sold him the handgun which would result in his or another party’s injury or death.
Recognizing the inherent dangerousness of handguns in the possession of minors, the legislature enacted OCGA § 16-11-101.1, which makes it unlawful for a person intentionally, knowingly, or recklessly to sell or furnish a pistol or revolver to a minor, except under certain circumstances not relevant here. Graham breached a duty created by statute when he sold the handgun to Muldovan. It is a question for the jury whether it was reasonably foreseeable that Graham’s conduct would result in the death of McEachern due to the subsequent playing of a deadly game with the handgun by Muldovan. Compare Spires v. Goldberg, 26 Ga. App. 530 (106 SE 585) (1921). “The causal connection between an original act of negligence and injury to another is not broken by the intervening act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer. The foreseeability of an intervening act [generally] is a question upon which reasonable minds might differ.” (Citations and punctuation omitted.) Mobley v. Flowers, 211 Ga. App. 761, 762 (2) (440 SE2d 473) (1994). “When from human experience the original wrongdoer has reason to know that his negligence will induce or provide the opportunity for another’s negligence, he cannot rely on the doctrine of intervening or supervening cause to insulate him from liability when an injury does occur.” Adams & Adams, supra at p. 257, § 15-4.
OCGA § 16-11-101.1 clearly was intended to protect minors from their own inability to protect themselves from their dangerous conduct when in possession of handguns, including their own lack of judgment or inability to resist various peer pressures. Thus, OCGA § 16-11-101.1 appears to be the type of statute whose fundamental [162]*162purpose would be defeated if the minor were permitted to assume the risk vis-a-vis the seller thereby relieving the seller of responsibility for injury resulting from the use of the illegally sold or furnished handgun. See generally Prosser & Keeton, supra at pp. 492-493, § 68.
For all these reasons, as to Case No. A98A0621, we reverse the trial court’s grant of summary judgment to Muldovan as to the claim of the intentional tort of battery and as to claims based on averred wilful and wanton conduct; we affirm the trial court’s grant of summary judgment to Muldovan as to claims based on averred negligent conduct to which the doctrine of assumption of the risk is applicable. As to Case No. A98A0622, we reverse the trial court’s grant of summary judgment to Graham.
Judgment affirmed in part and reversed in part in Case No. A98A0621. Judgment reversed in Case No. A98A0622.
Blackburn, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Eldridge, J., concurs fully with the majority and concurs specially separately. McMurray, P. J, concurs specially. Andrews, C. J., Pope, P. J., and Beasley, J., concur in part and dissent in part.