dissenting: The majority have decided to venture boldly into that legislative thicket of governmental-proprietary functions of state and counties. As a result the many activities of government giving rise to possible tort liability must be examined and determined governmental or proprietary on a case by case basis in the future.
In our recent opinion in Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347, an action was brought against a city for tortious acts of its agents in the operation of the city jail. Liability against the city was denied. In arriving at this holding the court said:
“The response of the legislatures in the states referred to above, as well as in other states where the courts have eroded or eliminated the immunity doctrine, leads us to believe that legislative action is preferable if municipal immunity is to be restricted or abolished.” (p. 153.)
In McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73, which is being overrulled, a patient in the University of Kansas Medical Center brought an action against the Board of Regents of the State of Kansas for injuries sustained while a patient. We denied recovery and held the operation of the medical center was a governmental function. In McCoy we said:
“The legislative-judicial prerogative proposition in Kansas may be distinguished from that existing in most states where judicial prerogative has been exercised. In Kansas, as we pointed out in the Parker case, the legislature has not been indifferent. We must acknowledge the legislature’s awareness of the sovereign immunity principle as evidenced by legislative action in providing in a number of instances for tort liability of political subdivisions and agencies of the state.” (p. 510.)
The prerogative of the legislature expressed in McCoy is declared in the present case to be a prerogative of this court as well as the legislature.
The difficulties which this court will encounter in determining whether the activity of government giving rise to possible tort liability is governmental or proprietary are myriad; In Grover v. City of Manhattan, 198 Kan. 307, 424 P. 2d 256, a ten year old boy was attacked by a coyote which had escaped from a city zoo. It was determined the operation of the zoo was a governmental function. *854The city was entitled to governmental immunity absent a statute expressly imposing liability. It is apparent on reading the Grover case no clear test can be devised to differentiate between governmental and proprietary functions. The determination will have to be made by this court on a case by case basis. The uncertainty attendant will stretch many years into the future.
The majority opinion sweeps with a broad broom when it overrules McCoy and the other cases which have remained the law of this state for many years. When such a sweeping change in the law occurs abruptly and without warning the reasons for the change should be clearly stated in the opinion. What reasons of public-policy suddenly dictate this change by judicial decree? The answer is not apparent in reading the majority opinion.
A new field of litigation is opened with far reaching consequences. This court should not undertake to change the law of this state in this area without devoting more time to the study and evaluation of attendant consequences.
Therefore, I join with the other members of the court dissenting.
Price, C. J., and Kaul, J., join in the foregoing dissent.