concurring and dissenting: I concur with the majority’s result pertaining to the City of Overland Park and its *449police officers. I dissent from the result concéming the bar and its employees.
I have some dissatisfaction with our current law concerning liability for the action of, or lack of action by, police officers. Governmental bodies should be encouraged to set law enforcement guidelines that are compassionate and protective of the public. I view as counterproductive Syllabus ¶ 3 and the corresponding part of the opinion in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), which holds that officers and governmental units are liable if specific mandatory guidelines have been adopted. It is counterproductive in that Fudge encourages, if not mandates, that a governmental agency never establish mandatory guidelines for its employees. That is not the message we should be sending. We should encourage whatever will provide the best possible law enforcement commensurate with protecting the public and private rights.
If a municipality and individual officers are to be held liable, liability should be based on a duty applicable to all municipalities and all officers similarly situated. The duty should be independent of and regardless of language in a manual.
Generally, a private citizen can coldly watch another person die even if the death could be prevented without endangering the private citizen. To me, a police officer has a duty to act if it would be apparent to anyone that death or serious injury will result, as opposed to a possibility if the officer does not. act. Under those circumstances, there should be liability for the officer’s failure to act. We hire law enforcement officers to solve crimes, keep the peace, and protect the public. They deserve, and should have, the public support in doing so, but the protection from liability for their actions should not be without limit.
This is not the case here. The officers were faced with a routine call. The testimony was that the officer thought the deceased was heading toward an open service station where shelter and a. telephone were available. Therefore, I concur with the majority’s result concerning the City of Overland Park and its police officers.
I dissent from affirming summary judgment in favor of the bar and its employees.
It is important to emphasize that the rules adopted by the majority would apply to the following scenario. A bar and its *450employees can sell liquor to a person they know is 13 years of age; can sell the child 9 to 10 shots of alcohol, as happened in this case; and can throw the child out of the establishment, if the child then becomes rowdy, without fear of liability for injury or death inflicted by or resulting to the child as a consequence of being intoxicated because of the illegal sale of intoxicating liquor to a person known to be a child.
Here, the bar was being operated by an underage shift manager, who was too young to purchase a drink in the bar he was operating. In the space of a little over one hour, the shift manager and a waitress sold the deceased minor 9 or 10 shots of whiskey and 4 or 5 beers.
I would adopt the views expressed by Justice Lockett in his dissent in Ling. The economic burden caused by and to intoxicated minors should be borne by those who caused the loss and not by the innocent victims or the public at large.
Concerning the bar and its employees, I would reverse and remand for trial.
Lockett, J., joins the foregoing concurring and dissenting opinion.