dissenting. The Kansas Tort Claims Act was passed to permit recovery of damages from a governmental entity when damages are “caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 1981 Supp. 75-6103. Certain exceptions to this general liability are set forth in 75-6104. In the present case the exception applied to justify dismissal of the petition is found in paragraph (d) which relates to acts in performing a discretionary governmental function or duty. The facts alleged in the petition do not in my opinion justify this application.
In passing the tort claims act, the legislature had no intention of extending the mantle of immunity beyond the boundaries of protection previously recognized. Personal liability previously was imposed on police officers who needlessly, maliciously or wantonly injured a person or his property even though they were engaged in a governmental function. Bradford v. Mahan, 219 Kan. 450, 454, 548 P.2d 1223 (1976).
An officer who acts outside the scope of his jurisdiction and without authorization of law may thereby render himself amenable to personal liability in a civil suit. 63 Am. Jur. 2d, Public Officers and Employees § 291, p. 801. The Kansas Tort Claims Act was not meant to change that rule of liability.
The dismissal of the present action is under K.S.A. 60-212(h)(6) for failure to state in the petition a cause of action upon which recovery may be had. The majority uphold the dismissal by determining under the allegations of the petition the officers were engaged in a discretionary governmental function. I disagree.
According to the allegations of the petition the police acted in excess of their lawful authority. They directed the owner and his wife to leave their own house. They refused to remove another person from the premises who was drunk and was threatening to *365burn the plaintiff’s house. Fifteen minutes later the house burned. The failure to remove the drunk may have been a discretionary function, but the direction to the owner of the house to leave his own premises without the authority of a court order was not discretionary, it was misconduct. Under the limited allegations of the petition there is nothing to indicate that the police were acting under authority of a warrant or order of a court when they directed the owner to leave his own house. There was nothing alleged which would indicate the plaintiff or his wife were engaged in any unlawful activity which would justify their removal from the premises. There were no allegations of existing danger which might have justified the police in removing them from the premises in the face of impending danger. Under the circumstances alleged, to direct the owner and his wife to leave their own house constitutes willful misconduct by the police. Such misconduct is not in the realm of discretionary governmental action. It is outside the authority of the police and should subject the police to suit for resulting damage. See Annot., Police - Liability for Injury, 60 A.L.R.2d 873.
The scholarly discussion in the majority opinion as to what constitutes a discretionary function, which discussion includes the approval of a federal court’s reference to the subject as being a “patchwork quilt,” would be more helpful if we knew the full facts in this case and were not limited to the allegations in the petition. In justifying the alleged actions of the police in the present case, this court makes recovery for police misconduct under the tort claims act nearly impossible. From now on all acts of police will be labeled discretionary, and no case of police misconduct can get past the pleading stage.
It might well be if the case were allowed to proceed to discovery, so the facts could be expanded, the situation would be one calling for discretionary action by the police and excepted from liability. However, on a motion to dismiss under K.S.A. 60-212(h)(6) we are not allowed to speculate beyond the facts stated in the petition. In my opinion the facts in the petition indicate police misconduct — removing a lawful owner from his own house without a court order, and without exigent circumstances which would justify police action. I would reverse for further proceedings.
Prager and Holmes, JJ., join in the foregoing dissenting opinion.