concurring in part, dissenting in part.
I concur with the majority’s holding that NCDENR properly preserved its assignment of error, that its appeal is properly before us, arid that the public duty doctrine applies to the facts before us.
The majority’s opinion also holds that plaintiff showed, and the Commission found, a special relationship existed or a special duty was owed by NCDENR to plaintiff.
Plaintiff bears the burden of proof to overcome the public duty doctrine. Wood v. Guilford Cty., 355 N.C. 161, 170, 558 S.E.2d 490, 497 (2002). The majority’s opinion correctly notes the special duty/special relationship exceptions to the public duty doctrine are “narrow exceptions.” Stone v. N.C. Dept. of Labor, 347 N.C. 473, 482-83, 495 S.E.2d 711, 717, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998) (“These exceptions are narrowly construed and applied.”); Braswell v. Braswell, 330 N.C. 363, 372, 410 S.E.2d 897, 902 (1991) (“[T]he ‘special duty’ exception to the general rule ... is a very narrow one; it should be applied only when the promise, reliance, and causation are manifestly present.”). Nothing in the record shows that plaintiff asserted or proved, or that the Commission found, a special duty was owed or special relationship existed between plaintiff and NCDENR.
NCDENR’s motion to dismiss should have been granted. I vote to reverse the Commission’s opinion and award and remand for entry of dismissal. I respectfully dissent.
I. Background
On 27 July 1999, plaintiff entered into an Offer to Purchase and Contract (“the contract”) with Donald L. McAvoy, Jr. (“Seller”) for Lot 871 (“Lot 871”) in Montgomery County, North Carolina. The contract was contingent upon the “lot perking for 3 bedrooms.” On 30 July 1999, Seller’s agent Tommy Blake obtained an improvement permit from the Montgomery County Health Department (“Permit 99291”). Permit 99291 approved the installation of an on-site wastewater system and was “subject to revocation if the site plans or intended use change[d] from those shown above or on the application.” Permit 99291 authorized construction of the wastewater system for five years from the date of issuance.
Nearly three years after purchasing Lot 871, plaintiff modified his site plan and moved the driveway from the left-hand to the right-hand portion of Lot 871. In June 2002, plaintiff notified the Mont*191gomery County Health Department of the proposed change and was informed that he must reapply for an improvement permit because of his changes.
On 3 June 2002, plaintiff applied for an improvement permit. Montgomery County Health Department denied plaintiff’s application due to unsuitable soil topography, unsuitable soil characteristics, and unsuitable soil depth. On 5 September 2002, Montgomery County Environment Health Coordinator Jon Fowlkes also notified plaintiff that the original Permit 99291 was revoked as of 21 August 2002 because the site was unsuitable for a ground absorption sewage system.
II. Standard of Review
The standard of review under the Tort Claims Act is well settled. “[W]hen considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission’s findings of fact, and (2) whether the Commission’s findings of fact justify its conclusions of law and decision.” Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998). “Mixed issue of fact and law and conclusions of law are reviewable de novo on appeal.” Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
III. Exceptions to Public Duty Doctrine
In all negligence actions, the plaintiff must allege and prove the defendant owed the plaintiff a duty of care. Wood, 355 N.C. at 170, 558 S.E.2d at 497. To be actionable, the defendant must specifically owe a duty to the injured plaintiff, and not to the public generally. Id. at 166, 558 S.E.2d at 493-94. This burden of proof remains on the plaintiff whether the defendant is a governmental entity or a private person. Id.
“The public duty doctrine is a separate rule of common law negligence that may limit tort liability, even when the State has waived sovereign immunity.” Myers v. McGrady, 360 N.C. 460, 465, 628 S.E.2d 761, 766 (2006). The public duty doctrine “provides that governmental entities and their agents owe duties only to the general public, not to individuals, absent a ‘special relationship’ or ‘special duty’ between the entity and the injured party.” Stone, 347 N.C. at 477-78, 495 S.E.2d at 714 (emphasis supplied).
*192“The rule provides that when a governmental entity owes a duty to the general public, particularly a statutory duty, individual plaintiffs may not enforce the duty in tort.” Myers, 360 N.C. at 465-66, 628 S.E.2d at 766 (emphasis supplied). The public duty doctrine applies “to state agencies required by statute to conduct inspections for the public’s general protection.” Wood, 355 N.C. at 167, 558 S.E.2d at 495.
The majority’s opinion correctly notes that the public duty doctrine is subject to two exceptions:
(1) where there is a special relationship between the injured party and the governmental entity; and (2) when the governmental entity creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual’s reliance on the promise of protectiori is causally related to the injury suffered. These exceptions are narrowly construed and applied.
Stone, 347 N.C. at 482-83, 495 S.E.2d at 717 (emphasis supplied).
This Court recently held a special duty may be created in one of three ways.
First, a special duty is created where the municipálity, through its police officers,... promise [s] protection to an individual, the protection is not forthcoming, and the individual’s reliance on the promise of protection is causally related to the injury suffered. Second, a special duty may be created by virtue of a special relationship, such as that between a state’s witness or informant. . . [and] law enforcement officers. We note that some confusion has arisen in this area due to the fact that this Court has previously referred to the special relationship exception as being a separate exception to the public duty doctrine, when, in fact, it is actually a subset of the special duty exception. A special relationship is simply another way to show that a special duty exists. Third, a, special duty may be created by statute; provided there is an express statutory provision vesting individual claimants with a private cause of action for violations of the statute. Our courts have generally held that a private right of action only exists where the legislature expressly provides for such in the statute.
Cockerham-Ellerbee v. Town of Jonesville, 176 N.C. App. 372, 377, 626 S.E.2d 685, 689 (2006) (internal quotations and citations omitted). The plaintiff neither asserted nor proved nor did the Commission make any findings of fact or conclusions of law to show either of *193these means to establish a special duty/special relationship existed. No “express statutory provision” vested plaintiff with “a private right of action.” Id. No “special relationship” was shown between plaintiff and NCDENR. Id. (internal quotation omitted).
“[T]he ‘special duty’ exception to the general rule ... is a very narrow one; it should be applied only when the promise, reliance, and causation are manifestly present.” Braswell, 330 N.C. at 372, 410 S.E.2d at 902. In order to claim the special duty/special relationship exception of the public duty doctrine, the plaintiff must allege and prove: (1) a promise of protection made by the governmental entity; (2) the entity’s failure to protect; and (3) reliance by the individual on the promise resulting in damage to the individual. Stone, 347 N.C. at 482-83, 495 S.E.2d at 717.
A. Promise of Protection
Plaintiff failed to show NCDENR made any promise to him. See Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 199, 499 S.E.2d 747, 751 (1998) (If the plaintiff failed to allege an actual promise, then the “special duty” exception cannot be a basis of liability.); cf. Davis v. Messer, 119 N.C. App. 44, 56, 457 S.E.2d 902, 910 (Holding the plaintiffs’ allegations that “the Town . . . promised it would provide firefighting assistance and protection; [that] the promised protection never arrived; and [that] plaintiffs relied upon the promise to respond to the fire as their exclusive source of aid, resulting in the complete destruction of their home,” stated a claim for relief under the “special duty” exception to the public duty doctrine.), disc. rev. denied, 341 N.C. 647, 462 S.E.2d 508 (1995).
The Commission’s finding that Montgomery County Health Department issued Permit 99291 does not create a promise to protect plaintiff. The majority’s opinion strains to impliedly excuse plaintiff’s failure to allege any promise and the Commission’s failure to address NCDENR’s assertions of the public duty doctrine. Nothing in the record shows NCDENR extended a promise of protection to plaintiff when Permit 99291 was issued. Plaintiff failed to prove, and the Commission failed to enter, findings of fact or conclusions of law to establish the first element in the special duty/special relationship exception to the public duty doctrine.
B. Failure to Protect
Plaintiff also failed to show NCDENR’s issuance of Permit 99291 was NCDENR’s failure to protect him. The Commission failed to enter *194findings of fact that NCDENR failed to protect plaintiff when it issued Permit 99291.
Even if NCDENR admitted Ezzell was negligent in issuing the original permit, Ezzell’s statutory duty to inspect was owed to the public generally and not to any individual. The purpose of the inspection and issuance of permits to install septic tank systems is for the protection and benefit of public health, safety, and welfare. N.C. Gen. Stat. § 130A-333 (2005); see Stone, 347 N.C. at 483, 495 S.E.2d at 717 (The public duty doctrine applied and duty was for the benefit of the general public when the statute charged the Commissioner of Labor with the duty to visit and inspect at reasonable hours, as often as practicable, all of the factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State.); Hunt, 348 N.C. at 198, 499 S.E.2d at 751 (The public duty doctrine applied when the Amusement Device Safety Act and the rules promulgated thereunder are for the protection of the public from-exposure to such unsafe conditions and do not create a duty to a specific individual.).
Plaintiff failed to show, and the Commission failed to enter, findings of fact or conclusions of law that he established the second element in the special duty/special relationship exception to the public duty doctrine.
C. Nonreliance and Damages
Although the Commission entered finding of fact numbered 5 that plaintiff relied on Permit 99291 as a condition to his purchase of the lot, the Commission failed to enter any finding of fact or conclusion of law that plaintiff relied on utilizing Permit 99291. Plaintiff’s conduct and inaction shows he never relied on Permit 99291. Three years after purchasing the lot, plaintiff changed his site plan and sought an entirely new permit. Plaintiff failed to challenge or appeal the revocation of the original 1999 Permit 99291 and never sought to construct improvements in reliance of that permit. Plaintiff could have, but failed to, assert available administrative and judicial remedies.
Under N.C. Gen. Stat. § 150B-43 (2005):
[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided in another statute, in which *195case the review shall be under such other statute. Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.
(Emphasis supplied).
The North Carolina Administrative Code controls the issuance of septic system improvement permits. N.C. Admin. Code tit. 15A, 18A.1937 (2006). The Code also states that “[a]ppeals concerning the interpretation and enforcement of the rules in this Section shall be made in accordance with G.S. 150B and 10 NCAC IB.” N.C. Admin. Code tit. 15A, 18A.1965 (2006).
Plaintiffs failures to construct improvements consistent with the conditions of the original permit or to challenge the County’s revocation of the original 1999 permit shows he never intended to rely on the original permit. Plaintiff voluntarily changed the approved site plan three years after the original permit 99291 was issued and did not appeal the County’s denial of his June 2002 application for a new improvement permit. These actions show the absence of any reliance by plaintiff on Permit 99291.
Plaintiff has also failed to show, and the Commission failed to enter, findings of fact plaintiff suffered damages from the negligently issued Permit 99291. Competent evidence in the record and a finding of fact shows NCDENR provided plaintiff with an option to install a septic system within the confines of Lot 871. Plaintiff did not exercise this option, but decided to purchase an adjoining lot on which to install his septic system. Plaintiff failed to show he suffered any damages resulting from the negligently issued Permit 99291. The record shows that plaintiff failed to prove, and the Commission failed to enter, any findings of fact to support the third element of reliance or damages to prove the special duty/special relationship exception to the public duty doctrine.
IV. Conclusion
Defendant properly asserted plaintiff’s claims were barred by the public duty doctrine. The Commission failed to make hny findings of fact or conclusion of law that plaintiff alleged or proved a special relationship existed or a special duty was owed by NCDENR to plaintiff. Plaintiff, not NCDENR, carried the burden of proof on this issue. Wood, 355 N.C. at 170, 558 S.E.2d at 497.
*196Nothing before the Commission or this Court tends to show NCDENR extended a promise to protect plaintiff, that NCDENR failed to protect plaintiff, and that plaintiff relied and suffered damages or did anything other than to inspect for the general public’s health and benefit. I vote to reverse the Commission’s opinion and award and remand to the Commission for dismissal of plaintiff’s claim. I respectfully dissent.