dissenting.
“Upon motion made by a party within thirty days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. OCGA § 9-11-12 (f). Such motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation. [Cit.] In particular, a motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense. [Cits.]” Medlin v. Carpenter, 174 *235Ga. App. 50, 55 (10) (329 SE2d 159).
Defendant’s third defense and the first at issue in this appeal states that: “Plaintiff failed to file an expert affidavit pursuant to OCGA § 9-11-9.1. Therefore, to the extent Plaintiff alleges that DOT engaged in professional malpractice, Plaintiff’s Complaint should be dismissed for failure to state a claim.” I would hold that any issue concerning the striking of this defense has been rendered moot by plaintiff’s “formal admission in judicio,” contained in his brief to this court, that “the complaint is not based on professional malpractice.” Whether plaintiff’s concession is technically an admission or a waiver, the substance is the same. Any ambiguities in the wording of the complaint relevant to the issues at hand are removed. Since it is thereby settled that the present complaint in this action does not state a claim based on professional malpractice, the defense at issue has no relevance to any claim pending in the case and no purpose is served by reversing the order striking the defense. Nonetheless, the majority has concluded that this defense should not have been stricken because under some conceivable sets of circumstances it could be a proper response to the allegations of plaintiffs complaint.
In my view, this is a purposeless reversal which will only facilitate a wasteful expenditure of the resources of the parties and of the lower court. The plaintiff has conceded all that defendant could ever hope to gain from the defense at issue. Defendant sought the dismissal of plaintiff’s complaint to the extent it states a claim for professional malpractice and plaintiff has responded with a formal concession which in effect says “fine, O.K., I never intended to assert professional negligence anyway.” After plaintiff’s concession, there is nothing for the defense at issue to act upon, it is irrelevant and immaterial.
The remaining defense at issue states that: “This action is barred by the public duty doctrine. DOT owed no specific duty to Plaintiff beyond that which is owed to the public generally.” This defense would invoke the public duty doctrine stated in City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861). This doctrine as created by the Supreme Court involves only failures of governmental entities to protect citizens from third party wrongdoers. Accord City of Lawrenceville v. Macko, 211 Ga. App. 312, 314 (2) (439 SE2d 95). Defendant has failed to submit any authority for expansion of the public duty doctrine to circumstances such as those in the case sub judice. Therefore, I would hold that the superior court did not err in striking this defense since it appears that the matter stricken can have no possible bearing upon the subject matter of the litigation. Medlin v. Carpenter, 174 Ga. App. 50, 55 (10), supra. By effectively eviscerating the statutory provision for motions to strike, the majority imposes upon plaintiff the very delay and expense which this provision is intended *236to prevent.
Decided March 31, 1995 Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Susan J. Levy, for appellant. Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., for appellee.As I would affirm the superior court’s grant of plaintiff’s motion to strike these two defenses, I respectfully dissent.
I am authorized to state that Judge Blackburn concurs in this dissent.