concurring in part and dissenting in part.
I agree with Chief Justice Parker and Justice Timmons-Goodson that the majority’s analysis is flawed regarding the retroactivity of the 2008 amendment; I share the concern that serious and extensive unintended consequences could flow from this decision. However, I agree with the majority that two types of plaintiffs’ claims should not be dismissed. Accordingly, I concur in part and dissent in part.
I agree with both dissenting opinions that the 2008 amendment cannot be construed as a clarifying amendment. I am especially convinced by the plain language of the statute, which states that the 2008 amendment “becomes effective October 1, 2008, and applies to claims arising on or after that date.” Act of Aug. 4, 2008, Ch. 170, Sec. 2, 2008 N.C. Sess. Laws 690, 691. Second, the caption of the amendment states that its purpose is to “limit the use of the public duty doctrine as an affirmative defense,” indicating an intent to change (by limiting) the existing law. Id. at 690. In my view, it is not our role to disregard this plain expression of legislative intent and this plain statutory language and apply the amendment here to cases that arose in 2002. Further, I fear that by so doing the majority jeopardizes the status of any number of other substantive amendments throughout the general statutes. I would hold that the 2008 amendment does not apply to this case.
However, I would hold that the public duty doctrine, as previously articulated by this Court, does not bar plaintiffs’ claims. As pointed out by the majority, plaintiffs made three types of claims in their complaints. The first two claims are for (1) negligent design and execution and (2) negligent failure to repair. I see no authority that would apply the public duty doctrine to bar these two claims.
To date, this Court has only examined the public duty doctrine as an affirmative defense in five cases. In two of those cases, we examined the doctrine as it related to the actions of law enforcement and other public safety officers. See Myers v. McGrady, 360 N.C. 460, 467-68, 628 S.E.2d 761, 766-67 (2006); Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901-02 (1991). In another, we found that an exception to the public duty doctrine applied. Multiple Claimants v. N.C. Dep’t of Health & Human Servs., 361 N.C. 372, 378-79, 646 S.E.2d 356, 360-61 (2007). The two cases most relevant here addressed the public duty doctrine in the context of state agencies *15and the duty to inspect. Hunt v. N.C. Dep’t of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998); Stone v. N.C. Dep’t of Labor, 347 N.C. 473, 495 S.E.2d 711, cert. denied by 525 U.S. 1016 (1998). In both cases we held that the public duty doctrine was available as ah affirmative defense to state agencies in cases of negligent inspection. Hunt, 348 N.C. at 197-99, 499 S.E.2d at 750-51 (holding that the public duty doctrine barred a plaintiffs suit for negligent inspection of go-karts); Stone, 347 N.C. at 483, 495 S.E.2d at 717 (holding that the public duty doctrine barred the plaintiffs’ suit for negligent inspection of a chicken plant). Here two of the plaintiffs’ claims do not stem from negligent inspection. Instead, plaintiffs’ allegations describe claims based on negligent design and negligent failure to repair. Therefore, I would hold that the public duty doctrine cannot apply to bar plaintiffs’ first two claims, and I would allow plaintiffs’ case to go forward on those two claims. The Tort Claims Act generally waives the State’s sovereign immunity and provides that negligence claims, including these, may be pursued against the State. Thus, I concur in the part of the majority opinion that affirms the Court of Appeals’ reversal of the Full Commission’s dismissal of these two claims.
For these reasons, I respectfully concur in part and dissent in part.