dissenting.
Although I agree with the conclusion reached by the majority, I must dissent because the case sub judice is indistinguishable from our prior holding in Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995). The plaintiffs in this matter, like the plaintiff in Davis, have alleged facts sufficient to establish a prima facie case of negligence as well as sufficient facts to demonstrate that their case falls within the “special duty” exception to the public duty doctrine. Therefore, I am obliged to follow the precedent set forth in Davis and find that the plaintiffs have alleged sufficient facts to warrant reversal of the trial court’s granting of the defendants’ Rule 12(b)(6) motion.
Additionally, I believe that our Supreme Court should reexamine the vitality of the public duty doctrine adopted in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991). Since the pronouncement of that decision, our courts have struggled to pigeonhole individual cases into specific, narrow exceptions to reach justifiable *415results. Indeed, the majority opinion cites numerous examples of such cases. A more appropriate solution may be a return to our time-tested prior law which allowed for recovery in cases where the plaintiff can present evidence of gross or reckless negligence. That approach adequately balanced the state’s ability to protect governmental entities from the floodgates of litigation while at the same time protecting its citizens from blatantly unlawful conduct. Moreover, this approach would simplify this area of jurisprudence so that our citizens can better understand this arena of our common law.