concurring: I concur with the majority’s conclusion that the entry of summary judgment was premature herein. I disagree with some of the rationale expressed in the majority opinion.
I agree with the Court of Appeals opinion herein distinguishing this case from Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984). In Cansler a police officer was injured by felons who had escaped from the Kansas State Penitentiary. Area law enforcement officers had not been advised of the prison escape. Negligence on the part of the State was based upon two grounds—failure to keep the felons confined and failure to warn of their escape.
In the case before us, neither Randy nor C.J.W. were confined in a state institution. Failure to warn of escape is not a factor herein. Randy was in Johnson County Juvenile Hall because he had been arrested and transported by local police for having injured a child with a pool ball. It can hardly be argued that the Johnson County officials accepted physical custody of Randy without knowledge that he was potentially dangerous to other residents of the facility. The majority opinion states in great detail Randy’s history of bad behavior. There is nothing therein to indicate any homosexual behavior prior to his involvement with C.J.W.; hence, a full disclosure of SRS records by Sharon Minor, his SRS caseworker, would not have alerted the Johnson County officials to this risk. Randy had previously molested a three-year-old girl. The majority opinion uses this fact to show that SRS was aware of Randy’s “sexually deviant behavior.” In my opinion, *20it is unwarranted to assume that molestation of a 3-year-old girl establishes that he posed a homosexual risk to a 12-year-old boy.
I further disagree with the majority’s conclusion that because a court had previously placed Randy in SRS custody, the State was responsible for Randy’s conduct. At the time of his attacks upon C.J.W., Randy was in the custody of and under the control of Johnson County. SRS “custody” was of the same nature as that of a parent or guardian in like circumstances.
The majority opinion concludes SRS had a legal duty to warn Johnson County Juvenile Hall of Randy’s propensity for violent and sexually deviant behavior. It then holds that discretionary function exception does not apply when breach of a legal duty is asserted. This holding would seem to eliminate the discretionary function exception to the Kansas Tort Claims Act (K.S.A. 1992 Supp. 65-6104[e]), as a tort is a breach of a duty owed by one person to another. See Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983). There is no claim of tort under the Tort Claims Act unless an assertion is made that a duty owed has been breached.
Unlike Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), there is no manual or set of guidelines requiring the SRS caseworker to disclose information in her files to the Johnson County detention facility. The question then becomes whether to disclose or not disclose is a discretionary act of the caseworker. If it is discretionary, then the discretionary function exception applies. I believe it is premature to make such a determination on the record before us. Expert testimony would be required to establish whether or not there was a nondiscretionary duty to disclose or warn under the circumstances herein. We are, after all, concerned with professional standards of conduct on this issue. Even if this determination is adverse to the State, there is still the jury question of whether the failure to disclose caused or contributed to the attacks upon C.J.W.