concurring and dissenting: I agree with the majority in- rejecting the in loco parentis doctrine. The principals in the case at bar were adults. Nero was 20 years old and Davenport was 21. My departure from the majority relates to: (1) the imposition of a duty owing from KSU to Nero grounded on foreseeability and (2) the majority’s analysis of the discretionary function exception to the KTCA, K.S.A. 1992 Supp. 75-6104(e). I would affirm the trial court.
The chronology of the on-campus events linking KSU, Davenport, and Nero in the spring-summer of 1990 is significant. (1) On April 28, 1990, a student, J.N. reported to law enforcement officers that Davenport had raped her in his room in Moore Hall, a coed residence hall, where both resided. (2) On April 30, 1990, Davenport was assigned temporarily to Marlott Hall, an all-male residence hall, in order to put distance between Davenport and J.N. (3) On May 2, 1990, Davenport was charged with rape in the district court. He entered a plea of not guilty, and his release on bond was continued by the court. (4) On May 2, 1990, the Associate Dean of Student Life, after meeting with Davenport, *589reached an agreement that Davenport would be permanently assigned to Marlott Hall for the remainder of the academic year. The Dean explained that KSU would not instigate any university adjudication of the matter but that, pending disposition of the case in the criminal justice system, KSU might, at a future time, hold a judicial hearing. (5) J.N. did not invoke the university’s policy prohibiting sexual violence and filed no complaint with KSU which would have triggered KSU’s proceeding under its established sexual violence policy. (7) On April 29, 1990, May 3, 1990, and May 8, 1990, Davenport’s arrest, the charges, his plea of not guilty, and his release on bond were reported in the local and campus newspapers (the Manhattan Mercury and the Kansas State Collegian). (8) The spring intersession commenced May 18, 1990, and ended June 3, 1990. Both Nero and Davenport enrolled. (9) Davenport moved into Goodnow Hall for the intersession. Goodnow Hall is coed and was the only student housing hall open for the intersession. Nero also lived in Goodnow Hall. (10) On June 2, 1990, Nero reported to the housing staff that Davenport, with whom she was acquainted, assaulted her while the two were watching TV in the Goodnow Hall lounge between 2:00 and 3:00 a.m. (11) On June 4, 1990, KSU determined that Davenport should be evicted from Goodnow Hall. (12) On August 29, 1990, Davenport changed his plea to guilty on the J.N. rape' charge.
Foreseeability
On June 2, 1990, Davenport was at liberty on a continuing bond and presumed innocent of the rape of J.N. Every defendant is entitled to the innocence presumption. Coffin v. United States, 156 U.S. 432, 453, 39 L. Ed. 481, 15 S. Ct. 394 (1895). See K.S.A. 21-3109 and PIK Crim. 2d.52.02 (1992 Supp.). The law should not require universities to confine or control students who only have been accused of crimes or to warn other students that a criminal charge or accusation is pending against a student living in one of the residence halls. KSU poses a rhetorical question: “Surely plaintiff is not suggesting that a picture or description of a student labeled ‘rapist’ should have been posted or circulated in Goodnow Hall.” If Davenport was a person with dangerous propensities, the trial court undoubtedly would have imposed *590more specific conditions of release to assure public safety. K.S.A. 1992 Supp. 22-2802(1) (“Any person charged with a crime shall ... be ordered released . . . upon the execution of an appearance bond in an amount . . . sufficient to assure the appearance of such person before the magistrate when ordered and to assure the public safety.” (Emphasis added.) KSU did not have actual knowledge that Davenport raped J.N. until Davenport pled guilty to the rape charge two months after the attack upon Nero. The fact Davenport had been accused and charged with rape was not a valid basis for KSU administrators to conclude he would attack Nero or any other female resident. Davenport was entitled to a presumption of innocence until the rape charge against him was adjudicated. KSU, also, is entitled to acknowledge the presumption. The fact that KSU now knows Davenport raped J.N. does not mean that KSU knew or should have known either that Davenport raped J.N. at the time he accosted Nero or that Davenport was a person with dangerous propensities.
Nero claims that KSU took control of Davenport and, consequently, owed a duty to prevent him from harming others because KSU knew or should have known he was likely to cause harm. She advances the Restatement (Second) of Torts §§ 315(a), 319 (1964). I agree with the majority’s conclusion that KSU did not have the control or custody over Davenport contemplated by § 315.
KSU did not “take charge” of Davenport by virtue of his residence in university housing. KSU should not be mandated to attribute dangerous propensities to Davenport based solely upon the rape accusation against him. KSU moved Davenport after J.N.’s allegation of rape in order to provide distance from J.N., who was living in the same student hall. Such action appears to me to be entirely reasonable.
Short of posting guards in the lounges, hallways, and bedrooms of the residence halls, KSU could hardly control the dynamics of the encounter that took place between Nero and Davenport. College students are legally regarded as adults. They expect a high level of privacy in their living arrangements, and there is little expectation of or tolerance for supervision of students living in modern-day university housing. Thus rests a continuing pre*591dicament for university administrators—a predicament compounded, in my view, by the majority opinion.
The majority references the landlord-tenant relationship, noting that KSU, as a landlord, owes a duty of reasonable care to its tenants and is in competition with private landlords. We have considered the student-university, landlord-tenant situation in Burch v. University of Kansas, 243 Kan. 238, 756 P.2d 431 (1988). In that case a grandmother came to visit at the granddaughter’s student residence hall. The grandmother was directed by the main desk to a dark stairwell. She could not see, began feeling her way down the steps, fell, and injured her leg. The university police had to use flashlights to locate her. We extended traditional landlord-tenant premises liability concepts to the residence hall contract between the student and the university. The trial court had held that the contract did not create a landlord-tenant relationship. The question in Burch was whether the university owed the grandmother the duty of reasonable care to keep the. stairwell reasonably safe for her protection or whether the university’s only obligation was not to wantonly and recklessly injure her. 243 Kan. at 240. We reasoned that the duty of the landlord to exercise reasonable care in keeping a common area in a reasonably safe condition extends to persons expressly or impliedly invited by a tenant, including social guests of the tenant. 243 Kan. 238, Syl. ¶ 2. Burch is not a criminal conduct case.
We have recently considered, for the first time, the relationship between a business owner and patrons or customers when injury results from criminal acts of a third party. Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, Syl. ¶¶ 2, 3, 856 P.2d 1332 (1993). We stated:
“The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted upon patrons or customers by the criminal acts of third parties in the business’ parking lot, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.”
“The test for determining the foreseeability requirement for injuries to customers by the criminal acts of third parties occurring in a business’ parking lot is determined to be the ‘totality of the circumstances’ rule as *592opposed to the more restrictive ‘prior similar incidents’ rule, all as is more folly discussed in this opinion.
The majority, in the case at bar, imposes a duty on KSU because the, sexual advances of Davenport on Nero may have been reasonably foreseeable and within the university’s control. The opinion concludes that when Davenport enrolled for intersession, KSU had the option of refusing to rent space to him. On what basis? He was at that time presumed to be innocént of the incident involving J.N. The record reflects no other antisocial behavior on his part. Goodnow Hall was the only residence hall open for intersession. A refusal of student housing might well have. triggered a claim against KSU by Davenport based on the student housing denial. The majority presumes that Nero had no knowledge of the pending rape charge against Davenport. I find no basis in the record for such a presumption. University administrators are now confronted with a Hobson’s choice when dealing with students criminally charged who enter pleas of not guilty. Is the prudent administrator to assume such students are guilty until proven innocent?
There is no evidence in the record that suggests Davenport was not free to enter the TV lounge at Goodnow Hall regardless of whether he lived in that hall, another residence hall, or off campus. The fact.that KSU had control of his dormitory assignment does not mean KSU could have prevented Davenport from attacking Nero in the Goodnow Hall lounge. KSU did not assign Davenport to a coed dormitory arbitrarily. Goodnow Hall was the only residence hall open during spring intersession. Nero does not allege Goodnow Hall lacked adequate security, such as guards or locked doors.
Davenport’s June 2, 1990, sexual advances on Nero were, as a matter of law, not reasonably foreseeable. The imposition of a criminal charge against a student does not suggest that, during the pendency of the action, the student will engage in any similar act. A reasonable expectation would be that a student charged with a crime would take particular care as to future conduct.
Burch and Seibert may signal this court’s imposition, in an appropriate future residence hall criminal act case, of a university landlord’s duty under the Seibert “totality of the circumstances” test to provide tenant security. Seibert holds that a duty may *593arise for a business owner “where circumstances exist from which the owner [landlord] could reasonably foresee that its customers [tenants] have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.” 253 Kan. 540, Syl. ¶ 3.
The KTCA-Discretionary Function Exception
The majority reasons KSU’s decision was ministerial based upon the deposition testimony of Dr. Pat Bosco, Associate Vice-President for Institutional Advancement. When asked who made the decision to move Davenport into Goodnow Hall, Dr. Bosco responded: “It would be our housing people, it would be purely an administrative move.” He further explained that every year everyone attending summer school is consolidated into one residence hall and the other halls are closed.
We should examine the totality of KSU’s decisions after J.N. accused Davenport of rape.
The trial court’s findings examined the totality of the, circumstances:
“Housing and Student Life administrators conferred over what to do. They were concerned about the welfare and comfort of [J.N.]. Acting on that concern, they moved Ramon Davenport out of Moore Hall and Derby Food Center until the end of the academic year so that the two would not come into contact. At the same time, Davenport had only been accused and pled not guilty. He did not enter his guilty plea until August 29, 1990. The University had no basis on which to make a judgment as to whether Ramon Davenport was guilty. [J.N.], his accuser, did not bring a complaint under the Policy Prohibiting Sexual Violence. Had she brought such a complaint under the adjudication procedures, the possible sanctions are themselves entirely discretionary. In short, University staff members had to decide among various interests. The University Housing Department and Student Life employees were called on to make decisions for which there existed no mandatory duty or guidelines.”
Additionally, when Nero reported to the university officials that Davenport had sexually assaulted her, KSU evicted him from Goodnow Hall, the only residence hall available during intersession and summer school.
The majority’s ruling that KSU was under a legal duty to act requires consideration of the university’s conduct. A ministerial act is the performance of some duty involving no discretion. Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d *594272 (1988). Discretion is defined as the capacity to distinguish between what is right and wrong, lawful and unlawful, or wise or foolish sufficiently to render one amenable and responsible for his acts. Dougan, 243 Kan. at 323. The KSU policy decisions meet the Dougan definition of discretion. KSU’s decision to move Davenport into Goodnow Hall involved discretion. KSU did not have to accept Davenport’s housing application for intersession.
In Haehn v. City of Hoisington, 702. F. Supp. 1526 (D. Kan. 1988), the decision of the city manager on handling a female police officer’s complaints concerning sexual harassment and assault and battery by another police officer were held to “clearly fall within the discretionary function exception at K.S.A. 75-6104(e).” 702 F. Supp. at 1532. The claim against the city manager was based on negligent supervision of the police staff. The court reasoned that the manager’s handling of plaintiff’s complaints about one of the officers “clearly entailed the formulation of governmental policy.” 702 F. Supp. at 1533. The exception applied as a defense for the manager. The Haehn analysis is applicable to the case at bar.
The majority cites additional authorities in support of its position that the discretionary function exception does not apply because the actions of KSU were ministerial and not discretionary. I differ with the majority’s analysis of the ministerial-discretionary relationship. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), we concluded that the State had not only failed in the enforcement of its statutory duty, but had also breached its common-law duties. 234 Kan. at 567-69. Cansler’s claim was based upon the State’s failing in its common-law duty to retain custody of known dangerous persons, giving them access to high-powered firearms, permitting them to escape confinement while well armed, and failing to warn the public and nearby on-duty law enforcement personnel, including Cansler, of an escape from prison. 234 Kan. at 569. The duty of the State to confine and to warn is imposed by law and is ministerial, not discretionary. 234 Kan. at 570. The legal duty of the Kansas State Penitentiary to confine prisoners and to warn of dangerous escapees is not applicable to the operation of KSU and -its residence halls.
Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987), involved the discretionary decision to undertake a purely *595ministerial task of janitorial work. We reasoned that such an undertaking could not cloak the negligent performance of the ministerial act with immunity. We stated, “The actual cleanup of vomit on a floor is about as ministerial as an act can be.” 240 Kan. at 623. The mechanics of mopping up a floor do not relate to the KSU-Davenport situation.
Draskowich v. City of Kansas City, 242 Kan. 734, 750 P.2d 411 (1988), is a street maintenance case. We noted that the issue in Draskowich, failure to warn of icy streets, was controlled by our line of cases recognizing that a city has an obligation to keep its streets in reasonably safe condition. Such a duty is mandatory. The duty was a common-law duty and no city had the right or discretion to avoid it. 242 Kan. at 739. We relied upon our earlier holding in Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984), that although statutory liability for defects in highways was repealed by the KTCA, a duty to maintain the highways remains under the general liability for negligence created by the Act. The scope of that duty is to be determined on a case-by-case basis. 242 Kan. at 740. Street maintenance cases are not persuasive in analyzing the KSU-Davenport-Nero relationship.
The majority suggests that Allen is consistent with Indian Towing Co. v. United States, 350 U.S. 61, 100 L.Ed. 48, 76 S.Ct. 122 (1955), Indian Towing is cited for the proposition that the decision whether to establish a lighthouse was discretionary but, once the lighthouse was established, there was a duty to maintain it. Indian Towing is not a discretionary function case. I suggest the majority’s reliance is misplaced. Twenty-nine years after Indian Towing, in United States v. Varig Airlines, 467 U.S. 797, 812, 81 L. Ed. 2d 660, 104 S. Ct. 2755, reh. denied 468 U.S. 1226 (1984), the Court commented:
"The plaintiffs contended that the Coast Guard had been negligent in inspecting, maintaining, and repairing the light. Significantly, the Government conceded that the discretionary function exception was not implicated in Indian Towing, arguing instead that the Act contained an implied exception from liability for ‘uniquely governmental functions.’ Id., at 64. The Court rejected the Government’s assertion, reasoning that it would ‘push the courts into the “non-govemmental”-“govemmental” quagmire that has long plagued the law of municipal corporations.’ Id., at 65.”
In Varig Airlines, a consolidated case, plaintiffs alleged negligence in the FAA’s failure to check specific items in the course *596of certifying particular aircraft for use in commercial flight. In one of the cases, a jet airliners lavatory trash receptacle allegedly did not meet applicable safety regulations, leading to an on-board lire that killed most of the passengers. In the other case, an airplane’s gasoline-burning cabin heater was held not to have been in compliance with federal regulations. The Court found both suits barred by the discretionary function exception. The Court stated: (1) It is the nature of the allegedly tortious conduct, not the status of the actor who engages in the conduct, that determines the exception’s relevance; (2) the exception clearly covers the government’s discretionary acts in regulating the conduct of private parties; (3) the FAA’s implementation of a mechanism, .such as spot checks, to enforce compliance with its regulations is a discretionary decision and thus within the exception; and (4) the acts of FAA employees in executing the spot checks are also within the exception since those employees are “specifically empowered to make policy judgments” in administering the program. 467 U.S. at 813-20.
The Fourth Circuit has commented’on the discretionary function exception and Indian Towing in the recent case of Baum v. U.S., 986 F.2d 716, 723 (4th Cir. 1993):
“Because the government conceded that the maintenance of the lighthouse did not fall within the discretionary function exception, the opinion of the Court does not discuss that aspect of the FTCA. . . . For this reason, subsequent decisions of the Court have all but disavowed Indian Towing as authority relevant to the discretionary function exception, and we likewise find it inapplicable to the instant case. See Varig Airlines, 467 U.S. at 812, 104. S. Ct. at 2763-64; Gaubert, 499 U.S. 314, 322-23, 111 S. Ct. at 1273-74.”
In Baum a driver and passenger of a vehicle that penetrated a guardrail on a National Park Service parkway brought an action for damages against the government under the Federal Tort Claims Act. Baum held that: (1) the choice of materials used in construction of parkway guardrails in a claim for negligent construction and design was a planning level decision that was protected by the discretionary function exception, and (2) the decision regarding replacement of guardrails in a claim, for negligent repair was also protected by the discretionary function exception. 986 F.2d at 722-24.
*597Federal cases that have appeared after Varig Airlines are enlightening in the interpretation of the troublesome issue of identifying a discretionary function. See Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act: Time for Reconsideration, 42 Oída. L. Rev. 459, 477 (1989).
“Many cases have involved decisions that arguably entail only the execution of programs or implementation of regulations. Thus, one court held the exception extends not only to broad policy decisions regarding the admission or release of Cuban refugees in general, but also to the ‘operational decision’ to allow a particular Cuban refugee, known to be a felon convicted of a violent crime, to enter the United States. [Flammia v. United States, 739 F.2d 202 (5th Cir. 1984).] The selection and supervision of participants in the federal witness protection program, [Jet Industries, Inc. v. United States, 777 F.2d 303 (5th Cir. 1985), cert, denied 476 U.S. 1115 (1986),] the use of and control over an informant in a Veterans Administration investigation of illegal drugs sales, [Fooler v. United States, 787 F.2d 868 (3d Cir.), cert, denied 479 U.S. 849 (1986),] and the failure of government inspectors to warn workers on inspected premises of dangers to which they were being exposed [see Merklin v. United States, 788 F.2d 172 (3d Cir. 1986),] have all been held by post-Varig courts to be within the exception. Failure to make adequate inspections of facilities on which federal funds are spent has been held immune, [Fennbank v. United States, 779 F.2d 175 (3d Cir. 1985),] as has the negligent performance of inspections that did take place. [Hylin v. United States, 755 F.2d 551 (7th Cir. 1985).] Even such mundane determinations as the decision not to post a lifeguard at a developed swimming site in a national forest [Wysinger v. United States, 784 F.2d 1252 (5th Cir. 1986),] and the Postal Service’s decision to sell a used Jeep without warning the buyer of the vehicle’s propensity to overturn [Ford v. American Motors Corp., 770 F.2d 465 (5th Cir. 1985),] have been held discretionary functions. The same is true of negligence of the National Weather Service in predicting weather and tidal conditions. [Spencer v. New Orleans Levee Bd., 737 F.2d 435 (5th Cir. 1984).]”
Some judgment is involved in any action or inaction. What is the nature and quality of the discretion exercised? Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982). In the case at bar, policy decisions were present in temporarily moving Davenport to Marlott Hall, in permanently assigning him there, in accepting his application to Goodnow Hall, in establishing a spring intersession, and in deciding that only one residence hall would be available during the intersession and that this one residence hall would be Goodnow Hall and coed. The relationship between KSU and Davenport involved the types' of university *598administration policy decisions that the legislature intended to put beyond judicial review.