(dissenting).
I must dissent.
The ultimate problem in this appeal is whether the state can be held liable for the failure of its agents to enforce the fire *245safety statutes and regulations. Appellants argue that having voluntarily assumed the task of inspecting for hazards, and by having discovered serious hazards, the agency came under a duty to carry out an abatement of those hazards with reasonable care. It is urged that numerous practical courses of action were available to the state’s agents, but that they negligently failed to pursue any of them.1 Appellants seek to ground liability on the principle that one who gratuitously renders services to another, in circumstances where a negligent performance of those services will increase the risk of harm to third persons, may be held liable to those third persons harmed by his failure to perform his undertaking with reasonable care.2 In this connection appellants argue that the manager of the Gold Rush Hotel relied upon the state’s agents to give him written advice about the deficiencies which required correction, and that this gives rise to a gratuitous undertaking by the agents of the state to take affirmative action in regard to the hotel.
I note at the outset that heretofore in Alaska, government liability in negligence has been sustained only in cases where the government had direct control of the instrumentalities which produced harm. Thus City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962), and Lee v. State, 490 P.2d 1206 (Alaska 1971), concerned negligent performance of physical rescue efforts which had been actively undertaken. State v. Phillips, 470 P.2d 266 (Alaska 1970), State v. Abbott, 498 P.2d 712 (Alaska 1972), and State v. I’Anson, 529 P.2d 188 (Alaska 1974), deal with failures to construct and maintain safe highways, over which the state has direct control.3 In State v. Stanley, 506 P.2d 1284 (Alaska 1973), the state failed to care for property over which it assumed control as a bailee. In Shannon v. City of Anchorage, 429 P.2d 17 (Alaska 1967), we recognized that a city, as dock owner, might have itself assumed a duty to provide safe access to its dock; but we did not hold that the duty would extend to assuring that the owner of a ship moored at the dock should provide safe access from the ship to the dock.
The case at bar differs from the ones cited above in that here there is no direct control by the state of the instrumentalities by which harm was inflicted. In this respect, at the least, this case is one of first impression.
Numerous courts have considered the question of whether there should be a right of legal action against governmental entities for negligent failure to enforce the law. Appellants cite certain cases in which such an action has been allowed. Typical of these cases are the following; In re M/T Alva Cape, 405 F.2d 962 (2nd Cir.1969) ; and Fair v. United States, 234 F.2d 288 (5th Cir. 1956); Hansen v. City of St. Paul, 298 Minn. 205. 214 N.W.2d 346 (1974); Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, ‘268 N.E. 2d 763 (1971); Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958) ; Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485 (1953), affirmed sub nom. Runkel v. Homelsky, 3 N.Y.2d 857, 166 N.Y.S.2d 307, 145 N.E.2d 23 (1957); and McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 (1947).
What is common to these cases is that a law ’enforcement agent either had assumed direct control of a situation or had *246undertaken action of a type from which immediate harm would necessarily result if the action were performed negligently. Many of these situations are classified as giving rise to a “special relationship” between the law enforcement agent and the person injured. This is recognized as falling within an exception to the general rule of immunity for failure to .enforce the law.
Appellee relies on numerous cases which hold that, absent a special relationship, no liability can be imposed for a negligent failure to enforce the law.
For example, in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), it was held that the city was not liable for personal injury caused by the collapse of a building, it being assumed that the city building inspector had performed an inspection of the building negligently. The rationale of the decision is that the inspection of buildings, a type of law enforcement, is performed pursuant to a duty owing to the public generally, not to specific individuals. Accordingly, a private right action cannot be founded upon a breach of such a duty. To the same effect is Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158, 160 (1972), in which claims were asserted for personal injuries and death of occupants of a motel in which a fire occurred. It was held that the issuance of a building permit for remodeling the motel, in a manner which violated the building code, did not give rise to a cause of action against the city. The court observed that building codes, the issuance of permits, and building inspections are devices to assure compliance with certain standards for the benefit of the general public. They are not intended as an insurance policy by which the government guarantees that every building within its jurisdiction is in compliance with those standards.
Motyka v. City of Amsterdam, 15 N.Y. 2d 134, 265 N.Y.S.2d 595, 204 N.E.2d 635 (1965), contains an analysis of the principles underlying the non-liability of governmental entities for failure to provide adequate police or fire protection. In that case a fire occurred in a multiple residence building. When the fire was quenched, a captain of the city fire department noticed a defective stove, which dripped oil, and ordered the tenant using the stove to discontinue its use, but neither the captain nor the city took any further remedial action. A second fire caused by the defective oil stove, resulted in several deaths. In holding the city not liable the court reviewed its earlier case law and concluded that the duty to enforce statutes relating to fire protection does not give rise to an action in tort unless the intent of the statutory enactment is to protect an individual against an invasion of a property or personal interest. Accord, Stranger v. New York State Elec. & Gas Corp., 25 A.D.2d 169, 268 N.Y.S.2d 214 (1966).
Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973), concerns a similar situation and comes to a like conclusion. In that case it was claimed that inspections by the fire department amounted to a gratuitous undertaking to render services to another, thereby imposing liability under Restatement (Second) of Torts, § 323 (1965).4
In rejecting this contention the court stated:
“We do not believe that the foregoing section is applicable. It contemplates the rendering of services to another. The inspections mandated by the fire code are not a service to the owner or occupier of *247the premises. Absent statutory intention to the contrary, the duty to enforce statutory law is a duty owed to the public generally, the breach of which is not actionable on behalf of the private person suffering damage.” 509 P.2d at 1063. (emphasis in the original)
Moreover, the contention that the fire code is intended to protect individual persons was deemed rebutted by Sec. 1.13 of the Uniform Fire Code, which disclaims governmental liability to persons or property by reason of inspection activities.5
I now confront the question of whether the alleged promise by Hildreth or City Fire Marshal Hughton to provide a written statement of the deficiencies in the Gold Rush Hotel is sufficient to give rise to a special relationship between the State of Alaska and the occupants of the hotel who were injured in the fire.
Taking the evidence most favorably to appellants, it must be assumed that Hildreth and Hughton knew the fire alarm system was inoperative.6 They never objected to the use of various alternative systems, including the telephone switchboard. During April of 1973, on a visit to the Gold Rush Hotel by Hildreth and Hughton, Edward Grove requested that any recommendations or requirements be put in writing so that the Gold Rush management could be sure to cover the specific points outlined by the state. The fire marshals agreed to do this, but it is unclear whether Hildreth or Hughton was to write the letter. In May, Grove had still not received the letter. He mentioned this fact to Chief Inspector Crouse, and also mentioned the fire alarm system.7 Grove claimed that the alarm system could have been audible within a matter of hours, “if we had been told that this had to be done . . . .”
I do not view this as giving rise to an actionable duty on the part of the state. After the inspections by Hildreth and Hughton, the owners of the Gold Rush Hotel were under no less of a duty to provide safe premises than before. An oversight by Hildreth or Hughton in not sending a written statement or letter to Grove would not excuse the owners of the hotel from their primary responsibility to provide safe •premises. I do not view the promise as an undertaking to assume control of fire safety of the premises, nor as an undertaking to relieve the owners of responsibility until such time as the state inspectors should act to give their approval to the condition of the premises. It appears from Grove’s own deposition that he did not rely on the promise of a letter to the point that he thought the state had undertaken his inspection duties. He did not hold up any portion of the construction in progress while awaiting the letter. And he agreed that the matters to be coutained in the letter had been thoroughly discussed with him, and that the letter itself was a “mere formality.” For these reasons I conclude that, on the facts of this case, no special relationships arose between the state and the hotel management or prospective occupants of the hotel such as to impose liability upon the state.
A decision of whether an actionable duty arises from the performance of fire inspec*248tions must also include a consideration of the public policy to be advanced by such a decision. While the creation of a right of action for negligent fire inspection would benefit the persons harmed by fires which subsequently result from such negligence, this must be balanced against the adverse effects which such a liability can have on the enforcement of fire safety codes. The potential liability for inspecting, or for failure immediately to remedy discovered defects, might well dissuade enforcement officers from conducting inspections at all. Alternatively, if the enforcement officers must act at the peril of being sued for the use of poor judgment in selecting particular means of enforcement, the effect might well be to evoke in these officers only the most extreme response in each situation, i. e., complete closure of buildings for even minor fire or safety hazards, pending their correction. I do not think that such results do, overall, promote the public interest.
Fire, health, and safety laws are difficult to enforce through governmental action alone. To assure total compliance would require an enormous expenditure of time and money by the government. To a large extent compliance must occur through voluntary action by property owners, who are subject to suit for injuries caused by defective structures under their control. It must be borne in mind that certain economic pressures are operative in the observance of fire and safety codes because of the requirements imposed by financing institutions, insurance companies, professional architects and engineers, reputable contractors, and labor unions.
To impose liability upon governmental entities for failure to adequately enforce fire and safety codes may discourage some of them, particularly the smaller communities m Alaska, from adopting such codes at all, as the financial commitment necessary to assure complete enforcement — and the ability to respond in damages — could well be crippling in its effects.
My research has unearthed no case in which liability has been imposed against a governmental entity for negligent fire inspection, assuming, of course, the absence of either a special relationship to the one injured, or of direct control by the government of the instrument of harm. I am persuaded that the reasoning and policies underlying the cases discussed above are sound.8 I would hold that in the case before us no liability could arise because of the putatively negligent inspection or enforcement of the fire code by agents of the state.
I would affirm the judgment of the superior court.9
.Among the practical measures which could liave been taken, pending correction, appellant lists: closure of the hotel; cessation of further construction; completion of the fire alarm system within a short .time, sucli as 48 hours; continuous patrol by a fire watch; posting of a warning to guests; requiring the hotel to advise each registering guest of the inoperative fire alarm system; and sending a notice or letter to the hotel manager.
. Restatement (Second) of Torts, § 324A (1965).
. Similarly Hansen v. City of Saint Pawl, 298 Minn. 205, 214 N.W.2d 346 (1974), grounded liability on the city’s duty to maintain streets and sidewalks.
. That section, which was quoted by ,the Arizona court, provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” 509 P.2d at 1063.
. A similar provision was operable in Alaska by virtue of 13 AAC 55.140. Section 1.13 read:
“Liability for Damages. This code shall not be construed to hold the municipality responsible for any damage to persons or property by reason of the inspection or re-inspection authorized herein or failure to inspect or reinspect or the xiermit issued as herein provided or by reason of the approval or disapproval of any equipment authorized herein.”
. Hildreth denies this, and asserts that State Fire Marshal Dawson and he discussed the switchboard system with Grove only as a temporary measure while the main alarm system was off in order to build .the third floor, then under construction. Dawson does not remember approving the switchboard system, and Dawson and Grove deny that they ever met before the fire. It appears from Grove’s depositions that the main fire alarm system had never been made operative since the building was constructed in 1964-65.
.But Grove says that the only deficiencies pointed out at the April meetings concerned the new third floor construction.
. It is noteworthy that these eases are all from jurisdictions in which sovereign immunity has been abolished, so none of these cases were decided on that ground.
. My view of this case renders it unnecessary to consider the difficult question of whether the fire inspection activities in the case at bar come within the “discretionary function” exception to government tort liability under AS 09.50.250. See State v. Abbott, 498 P.2d 712 (Alaska 1972), for a discussion of the intricacies of interpreting that provision. In Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), the California Supreme Court grappled with the same basic problem.