dissenting: I respectfully dissent as to Syllabus ¶ 7 and the corresponding portions of the majority opinion. I cannot accept the principle that the Kansas Adult Authority (KAA) has an absolute immunity from liability under the Kansas Tort Claims Act in placing a prisoner on conditional release without imposing conditions to protect the public, where the KAA has acted in bad faith, or with a reckless and callous disregard for the safety of the public.
The majority properly holds that the trial court erred in entering summary judgment based upon the insufficiency of the evidentiary facts at a time when the facts had not been determined by discovery or otherwise. In this case, the KAA filed a motion to dismiss the plaintiffs’ action. The trial court notified counsel that it intended to rule on defendant’s motion to dismiss as a motion for summary judgment. Thereafter, the plaintiffs filed notices to take the depositions of individuals whose testimony the plaintiffs believed was necessary for the court to rule *38on the motion for summary judgment. The trial judge then changed his mind and ruled that he would determine the motion filed by the KAA as a motion to dismiss and not as a motion for summary judgment. In reliance upon the court’s ruling, the plaintiffs withdrew their motion for additional discovery. In determining plaintiffs’ right to recover against the KAA under state law, the trial court held that the KAA owed a duty to the plaintiffs and that a fact issue existed as to whether the KAA had breached its duty by knowingly and recklessly releasing a dangerous individual into society without appropriate safeguards. The court then changed its prior ruling and treated the KAA motion to dismiss as a motion for summary judgment and sustained the motion on that basis. In my judgment, this ruling clearly violated the established rules pertaining to motions for summary judgment which are thoroughly summarized in the majority opinion.
The majority opinion in this case correctly holds that the trial court erred in entering summary judgment in favor of the KAA based upon the insufficiency of the facts and the evidence at a time when the facts had not been determined by discovery or otherwise.
However, instead of reversing the case to provide the plaintiffs an opportunity to develop the facts, the majority then proceeds to hold that the KAA is immune from liability as a matter of law under the Kansas Tort Claims Act (K.S.A. 75-6104[d]). In arriving at that conclusion, the majority holds, in effect, that no matter what the factual circumstances and no matter that the KAA acted in bad faith with a reckless disregard or complete indifference to the rights of the public, the KAA can never be held liable for its actions. It is from this conclusion that I respectfully dissent, because in my opinion it is contrary to the Kansas cases and basic justice.
The petition filed by the plaintiffs against the Kansas Adult Authority specifically states as follows:
“49. In so releasing Bradley R. Boan, the defendant Kansas Adult Authority specifically failed, refused to fulfill or inadequately fulfilled their individual, official and other duties, as previously set forth herein, and each of them, in allowing, refusing or failing to prevent, intervene or protect against, the commission of aforesaid violent acts or omissions, acted in bad faith, with reckless *39and callous disregard for the rights of others, were grossly and wantonly negligent and exhibited intentional and deliberate indifference to the foreseeable violent and dangerous propensities posed by Bradley R. Boan and to the rights of the above-named plaintiffs, and each of them.” (Emphasis supplied.)
It is clear from these allegations that the plaintiffs’ claims were based in part upon the fact that the Kansas Adult Authority acted in bad faith and recklessly in a manner constituting more than simple negligence.
In Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982), this court held that whether an act of a governmental agency is discretionary depends upon the totality of the circumstances. At one point in the majority opinion in this case, it is stated that the Kansas cases do not agree that the discretionary function exception grants absolute immunity, citing Hopkins v. State, 237 Kan. 601, 611, 702 P.2d 311 (1985), where it is clearly stated that neither the courts nor the legislature in passing the Kansas Tort Claims Act extended the mantle of immunity beyond the boundaries of protection previously recognized under the common law, and that under the common law, personal liability was imposed on officers who maliciously or wantonly injured a person or his property even though the officers were engaged in a governmental function.
The court in the majority opinion cites Payton v. United States, 679 F.2d 475 (5th Cir. 1982). In Payton, it was held that where the United States Board of Parole follows the required steps of the decision-making process and its own regulations and determines that a prisoner should be released on parole after evaluating the prisoner’s records, this would be the exercise of discretionary function. I have no quarrel with this holding but would point out that in Payton, 679 F.2d at 481, the court’s majority opinion then states as follows:
“In' holding that the actual decision to grant or deny parole is within the complete discretion of the parole board, we do not hold that the board has the discretionary power to ignore the required steps of the decision-making process.” (Emphasis supplied.)
I have no quarrel with the proposition that the Kansas Adult Authority is exempt from liability under the discretionary function exception to the Kansas Tort Claims Act (K.S.A. 75-6104[d]) where the authority follows the prescribed statutory procedures *40and its own regulations in considering the background of a particular prisoner and then, in good faith, determines from the prisoner’s record whether or not conditions should be required to control the prisoner during his conditional release and what those conditions should be. ■
The problem that I have in this case is that it is entirely possible that the evidence developed by the plaintiffs in their discovery may show that the members of the Kansas Adult Authority did not follow its proscribed regulations and adopted a blanket policy to release a prisoner on conditional release in every case without any concern whatsoever for the safety of the public.
Before the nonliability of the members of the KAA in this case can be determined, it is my opinion that the trial court should have reviewed the rules, regulations, and guidelines established by the KAA and then considered the nature and extent of the decision-making process actually utilized by the KAA in releasing Bradley R. Boan.
Before paroling a prisoner, the Kansas Adult Authority is specifically required to “consider all pertinent information regarding each inmate, including but not limited to the circumstances of the offense of the inmate; the presentence report; the previous social history and criminal record of the inmate; the conduct, employment, and attitude of the inmate in prison; and the reports of such physical and mental examinations as have been made.” K.S.A. 1986 Supp. 22-3717(g). The same considerations which govern the decision whether to parole or discharge a prisoner also should govern the conditions to be attached to the release. K.S.A. 1986 Supp. 22-3718 requires that an inmate eligible for conditional release shall be subject to such written rules and conditions as the authority may impose. The Kansas Adult Authority regulations state that conditional releasees may be placed, “under mandatory in-state parole supervision” for 90 to 120 days or longer and they may be subject to the same treatment and conditions as all other parolees while on parole. K.A.R. 45-10-1.
In my judgment, these rules and regulations require the Kansas Adult Authority to consider the welfare of society when determining whether to impose conditions on releasees. In *41Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), it is stated that discretion implies the exercise of discriminating judgment within the bounds of reason. Whether the Kansas Adult Authority breached a nondiscretionary duty by exercising its discretion in bad faith and in a reckless manner cannot be determined without a full and complete analysis of the factual circumstances, which have not been developed in this case.
In my judgment, this case should be reversed and remanded to the trial court with directions to afford the parties an opportunity to develop the facts, so that both the trial court and an appellate court can determine whether or not the Kansas Adult Authority is liable in failing to carry out its obligation to impose conditions on a conditional release in order to protect the public.
Herd, J., joins the foregoing dissenting opinion.