(dissenting) — In my opinion, the majority en-grafts upon RCW 4.92.090, the statute abolishing sovereign immunity in the state of Washington, the chimerical words, “discretionary act,” ostensibly as a delimitation of the liability of the state for blameworthy, tortious conduct. Thus, compensation in legal damages in a court of law may be denied to citizens for injury and harm negligently inflicted by the state. The choice of language employed by the majority to reach this result and the result itself are, in my judgment, both unfortunate and unwarranted in view of the language actually utilized by our state legislature in describing the ambit of the state’s tort liability.
The plaintiffs herein brought suit under the Laws of 1961, ch. 136, § 1, p. 1680 (RCW 4.92.090):
The state of Washington, whether acting in its governmental or proprietary capacity, hereby consents to the maintaining of a suit or action against it for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. (Italics mine.)
That statute was amended by Laws of 1963, ch. 159, § 2, p. 753, and now provides:
The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. (Italics mine.)
The 1963 amendment was apparently enacted in the light of widespread judicial unwillingness to sound the final death knell for the archaic concept of sovereign immunity:
judicial responsibility for sovereign irresponsibility in tort goes far beyond the original invention and elaboration of the immunity doctrine. Even when legislative bodies become convinced that tort plaintiffs should be allowed to sue the sovereign, and even when clear and unequivocal statutes are enacted authorizing such suits, the courts have characteristically nullified such legislation by interpreting it to mean that sovereign irresponsibility must continue!
Commentators have pointed out that “enactment of statutes authorizing suits against the state or its sub*263divisions by all persons having claims against them has very little bearing upon tort liability or responsibility. In at least seventeen states there are or have been such enactments which have been interpreted as merely permitting the filing of suits or claims, but as having no effect upon the substantive right to collect such claims.” 3 Davis, Administrative Law 455, 457 (1st ed. 1958)
To date, this court has not evinced judicial distaste for the clearly articulated legislative policy abolishing the doctrine of sovereign tort immunity in this state. Kelso v. Tacoma, 63 Wn.2d 913, 390 P.2d 2 (1964), and Hosea v. Seattle, 64 Wn.2d 678, 393 P.2d 967 (1964). The instant case is not particularly suited to break the consistency of this judicial record.
The following language of the majority opinion provides the springboard for the limitation of the statute subsequently arrived at by the majority:
The statute, however, is not as broad as it possibly could have been written. Although it does not contain the varied exceptions found in the Federal Tort Claims Act ... it does contain limitations. State government is rendered liable for damages only when such damages arise out of “tortious conduct to the same extent as if it were a private person or corporation.”
I am hard put to find a limitation in the language quoted from the, statute. Rather than belabor the point, I shall leave the problem of whether the language was meant to be “a limitation” to the semanticists and lexicographers. I am convinced of one fact. The legislature, in abolishing sovereign immunity in this state, has painted with the broadest possible brush. This influences my characterization of the language of the statute as being descriptive or expansive rather than limiting.
Having made the initial above-mentioned inroad upon the statute, the majority opinion in the following policy statement proceeds to engraft a potentially parasitical growth upon the language utilized by the legislature:
Practically all jurisdictions that have broken varying amounts of ground in the abdication of governmental immunity from tort liability have judicially, if not statu*264torily, recognized that the legislative, judicial, and purely executive processes of government, including as well the essential quasi-legislative and quasi-judicial or discretionary acts and decisions within the framework of such processes, cannot and should not, from the standpoint of public policy and the maintenance of the integrity of our system of government, be characterized as tortious however unwise, unpopular, mistaken, or neglectful a particular decision or act might be.
Recognizing the need and reason for a limitation on sovereign tort liability is one thing. Establishing guidelines for its application, however, is another matter, particularly in the area involving executive or administrative discretion. (Italics mine.)
The foregoing is the sine qua non of the majority’s reasoning; namely, there must be a limitation on the abolition of sovereign immunity regardless of the difficulty of delineating the areas in which the state shall or shall not be liable. But the vehicle utilized by the majority in a judicial demarcation of sovereign liability’s ending point; i.e., “discretionary acts,” was specifically rejected by the legislature. The statute reads that the state shall be liable whether acting in its governmental or proprietary capacity. It seems to me that there is little if any distinction to be made between the characterization of a municipal corporation’s function as “governmental” or “proprietary” and the designation of a state agency’s function as “ministerial” or “discretionary.” The majority opinion cites Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 Sup. Ct. 956 (1953), in its attempt to clarify the terms “ministerial” and “discretionary.” In Dalehite, the court, with respect to the Federal Tort Claims Act, states that “it was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function.” Whether or not it’ was warranted, this statement would seem to equate the terms “governmental” and “discretionary” — the latter of which is utilized by the Federal Tort Claims Act in excepting governmental conduct for which it shall not be subject to tort liability.
*265Our legislature did not utilize either the “governmental-proprietary” distinction or the “discretionary-ministerial” characterization in abrogating sovereign immunity. Instead, the statute reads that the state of Washington, whether acting in a governmental or proprietary manner, shall be liable for its tortious conduct in the same manner as if it were a private person or corporation. We may safely assume that the legislature was aware of the difficulties which abound in attempting to pigeonhole official conduct as governmental or proprietary, or as discretionary or ministerial. In drafting the statute, the legislature specifically negated the use of the first dichotomy and attempted to make orthodox tort law principles applicable to governmental conduct. Surely the legislature’s exclusion of the broad term, “governmental,” which encompasses a wide range of activity, can correctly be said to likewise exclude the lesser included term used by the majority, “discretionary.”
In the case before us tort law principles would seem to indicate that the state is liable. The majority opinion correctly notes the rehabilitative policy implemented by our statutes with respect to delinquent and dependent children who are committed to the Department of Institutions in this state. But a corollary purpose or function of the Department of Institutions is to protect society from those children whose personality maladjustments — whatever the cause — are such that playmates, parents, other adults, and their property are placed in danger when in the proximity of the disturbed child. The duty, then, of the state is corrective and rehabilitative with respect to the child, but also protective with respect to society in a larger spectrum than is recognized or implemented by the majority.
The dismal history of this child can leave no doubt that he was in need of care; but, correlatively, society needed protection from him. He had set at least four fires in the past and had been unable to adjust to society upon his first release from Green Hill School. It is important to note that his return to that institution was coupled with a recommendation that he be classified as a security risk. *266What should be the standard of conduct applicable to the state in this instance? If the boy escaped, was there not a foreseeable risk created to the persons and property with which he came into contact? The boy’s past antisocial behavior, coupled with the fact that he had only recently been recommitted to Green Hill, should have put the personnel of that institution on notice that stringent security measures were required. I do not quarrel with the necessity of maintaining the so-called “open program” in order to implement the institution’s rehabilitative function, but a balance must be struck; and here, the unreasonable risk of harm to society created by the boy’s escape would seem to have necessitated tighter security measures.
Instead, the boy was placed on boiler room detail. This put him in a conveniently located area for escape. Among other questionable things, it seems to me at least a somewhat curious happenstance that a child who had previously set fire to other’s property on not less than four known and separate occasions was given a work assignment in a boiler room. There, his exposure to the temptations of fire might test his resistance and upgrade his psychiatric classification; but the exposure also might again overstimulate the warped responses which previously and unequivocably characterized his psychotic personality. Any testing of his stability in this manner, if that was intended, was risky business, and it turned out to be just that for the plaintiffs 'in this lawsuit against the state. In the trial court the plaintiffs did not allege or attempt to prove the negligence of the particular employee who had only one child under his supervision at the time. Regardless of the particular circumstances which surrounded the boy’s escape, the inescapable fact is that he was allowed to be in an area from which escape was relatively easy. This was the culpable act which created an unreasonable risk of harm to property and persons in the Chehalis area. Fortunately, the injury was to property only.
I would not propose making the state absolutely liable for the acts of those who escape from its custodial institutions. Rather, I choose to follow the legislative guidelines *267in applying only orthodox tort law to particular fact patterns. Where there is a duty on the part of the state to protect society from unreasonable risk of harm, and there is a failure to measure up to that duty or standard of conduct, then I think the state should compensate those citizens who are injured by the acts of escaped convicts, mental patients, and juvenile wards, if those whose persons or property were injured were within the scope of the risk created by the negligent acts of the state in allowing them to escape.
The majority chooses to insert the virtually useless “discretionary-ministerial” distinction phrase, or glittering generality, into our statute. This, I think, is without semantical, logical or legal foundation. To me it offers no rationally acceptable solution of the instant case, and promises no definitive solutions in future cases involving application of the policy enacted by the legislative branch in abrogating sovereign immunity in the state of Washington. Limitation on this broad and significant change in social policy should now emanate from the legislative rather than the judicial branch.
For the reasons indicated herein, I dissent.
Hunter, J., concurs with Finley, J.
January 18, 1966. Petition for rehearing denied.