Cross v. City of Kansas City , 230 Kan. 545 ( 1982 )

Herd, J.,

dissenting: I respectfully dissent. Traditionally the furnishing of gas, water and electricity to consumers has been defined as a proprietary function of a municipality for which there is no governmental immunity. See Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), aff’d in part and vacated in part, 219 Kan. 2, 547 P.2d 1015 (1976); Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256 (1967); Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265 (1957); Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227 (1948); Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49 (1916); Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947 (1914). On the other hand, fire and police protection are governmental functions which are immune under K.S.A. 1978 Supp. 46-902(5). The reason for the distinction is readily apparent: furnishing gas, water and electricity are performed for profit while fire and police protection are for the protection of the public in general.

In the instant case the Board of Public Utilities of Kansas City is charged with performing the proprietary function of furnishing electricity and water to Kansas City residents for a profit. The board of public utilities performs no governmental functions. The effort to track either water or electricity to the ultimate consumer in order to determine from its use whether the function is proprietary or governmental is not sound. The reasoning that the duty to furnish water to the fire department is governmental is just as faulty. The fire department performs the governmental function. The Hoard’s responsibility is to furnish water, a proprietary obligation.

In light of our decision in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), K.S.A. 1978 Supp. 46-902(b) should be strictly construed against expanding immunity. I would hold the furnishing of water for fire protection a proprietary function (overruling Perry v. City of Independence, 146 Kan. 177, 69 P.2d 706 [1937]), adopt the reasoning of Hall v. Youngstown, 15 Ohio St. 2d 160, 239 N.E.2d 57 (1968), and reverse the trial court.

Prager and Miller, JJ., join the foregoing dissent.