dissenting.
The majority opinion correctly notes that the General Assembly has the exclusive authority to waive sovereign immunity and to decide under what conditions the Commonwealth may be subjected to suit. To that end, KRS 44.072 provides inter alia as follows:
The Commonwealth thereby waives the sovereign immunity defense only in the limited situations as herein set forth. It is further the intention of the General Assembly to otherwise expressly preserve the sovereign immunity of the Commonwealth....
This message is reiterated in KRS 44.073(11) and (12):
(11) Except as otherwise provided by this chapter, nothing contained herein shall be construed to be a waiver of sovereign immunity or any other immunity or privilege maintained by the Commonwealth, its cabinets, departments, bureaus, and agencies and its officers, agents, and employees.
(12) Except as otherwise specifically set forth by statute and in reference to subsection (11) of this section, no action for damages may be maintained in any court or forum against the Commonwealth ....
KRS 44.073(2) and (8) identify the negligent performance of ministerial acts as the only type of conduct for which sovereign immunity is waived and the Board of Claims as the only forum for an action for negligence against the Commonwealth:
(2) The Board of Claims shall have primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus, or agencies.
(8) No action for negligence may be brought in any court or forum other than the Board of Claims against the Commonwealth, any of its cabinets, departments, bureaus, or agencies or any of its officers, agents, or employees while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus, or agencies.
To summarize, the Commonwealth may be sued in the Board of Claims for the negligent performance of ministerial acts by its officers, agents, or employees; otherwise, sovereign immunity is retained.
The majority opinion assumes that ministerial acts and discretionary acts are the only types of governmental conduct which are implicated by the doctrine of sovereign immunity; and since the failure to properly inspect, discover, and report a regulatory violation is not a discretionary act, it must be a ministerial act which falls within the waiver provision of KRS 44.073(2). That assumption ignores KRS 44.073(13), which provides as follows:
(13)The preservation of sovereign immunity referred to in subsections (11) and (12) of this section includes, but is not limited to, the following:
(a) Discretionary acts or decisions;
(b) Executive decisions;
(c) Ministerial acts;
(d) Actions in the performance of obligations running to the public as a whole;
(e) Governmental performance of a self-imposed protective function to the public or citizens; and
(f) Administrative acts.
*129Of the six types of conduct enumerated in KRS 44.073(13), only a ministerial act can be the subject of a negligence claim against the Commonwealth. With respect to the other five types of governmental conduct enumerated in KRS 44.073(13), sovereign immunity is retained. That includes (d) “[ajctions in the performance of obligations running to the public as a whole,” and (e) “[gjovernmental performance of a self-imposed protective function to the public or citizens.” These two concepts were not conjured out of thin air when the General Assembly enacted KRS 44.073 in 1986. They were adopted verbatim from the opinion of this Court in Commonwealth, Dept. of Banking and Sec. v. Brown, Ky., 605 S.W.2d 497 (1980).
The pragmatic effect of our holding is that under the Board of Claims Act, the Commonwealth has no common law liability for the malfeasance of its agents in the performance of obligations running to the public as a whole.
Id. at 500 (emphasis added).
When the governmental entity is performing a self-imposed protective function as it was in the case at hand, the individual citizen has no right to demand recourse against it though he is injured by its failure to efficiently perform such function.
Id. at 499 (emphasis added).
Thus, contrary to the assertion in the majority opinion, KRS 44.073 did not abrogate our holding in Brown, but codified it. In Brown, the depositors in two failed building and loan associations sought to hold the Commonwealth liable for their financial losses because officers and employees of the Department of Banking and Securities had failed to discover and report the true financial conditions of the associations. Here, the plaintiff seeks to hold the Commonwealth liable for the death of her decedent because employees of the Natural Resources and Environmental Protection Cabinet failed to discover and report the failure of a strip mining company to comply with state regulations pertaining to culverts. Here, as in Brown, the claim is not that the Commonwealth’s ofScers or employees caused the injury, but that they failed to prevent it by negligently performing a self-imposed protective function to inspect, discover, and report regulatory noncompliance, an obligation running to the public as a whole. There is no conceptual distinction between this cause of action and the cause of action in Brown. KRS 44.073 is much more specific than the former version of KRS 44.070 which was being interpreted in Brown. In fact, as noted above, KRS 44.073(13)(d) and (e) are codifications of our specific holdings in Brown. Presumably, the General Assembly will be surprised to learn that even when it has codified our interpretation of its statutes, we reserve the right to reject that codified interpretation if necessary to reach a desired result in a particular case.
I would affirm the Court of Appeals and order this action dismissed as barred by the plain language of KRS 44.072 and KRS 44.073(2), (8), (11), (12) and (13).
JOHNSTONE and KELLER, JJ., join this dissenting opinion.