The opinion
RATLIFF, Chief Judge,
dissenting.
The only question presented for our decision in this case is whether Citizens Gas and Coke Utility (Citizens), a gas utility owned by the Consolidated City of Indianapolis, is entitled to immunity under the Indiana Tort Claims Act, Indiana Code section 34-4-16.5-3(11). That question must be considered in the light of the intent and purpose of the immunity provisions of the Tort Claims Act, and, in that context, the question must be answered in the negative.
The policy underlying the immunity provisions of the statute is to protect public officials in the performance of their duties by preventing harassment by threats of civil litigation over decisions they make within the scope of their position, and to protect the fiscal integrity of governmental bodies by limiting tort damages. Board of Comm’rs. v. King (1985), Ind.App., 481 N.E.2d 1327 . The question then becomes whether this protection extends to the operation of a business by the governmental body. In my view, it does not and should not. The fiscal integrity intended to be protected is the public treasury—the taxpayer’s money—not the business revenue of the governmental body. The debts of a municipal utility are the debts of the utility and not those of the city. 1951 O.A.G. p. 141, 143. Therefore, since the public treasury is not threatened by tort actions against a municipally owned utility, the policy underlying the grant of immunity under the Tort Claims Act is not involved.
Our supreme court has stated:
“When a municipal corporation engages in activity of a business nature rather than one of a governmental nature, such as the supply of light and water or the operation of a railroad, which is generally engaged in by individuals or private corporations, it acts as such corporation and not in its sovereign capacity, [citations omitted] and a city operates its municipally owned utility plant in its proprietary capacity as a private enterprize [sic] subject to the same liabilities, limitations and regulation as any other public utility.”
City of Logansport v. Public Service Comm’n. of Indiana (1931), 202 Ind. 523, 432 , 177 N.E. 249, 252 .
Granted the issue in City of Logansport was the authority of the Public Service Commission of Indiana to fix rates for the city owned electric utility, which holding was distinguished in Meyers v. Evansville Water Works Dept. (1970), 147 Ind.App. 372 , 261 N.E.2d 88 , and granted further that the quoted portion of the opinion relies upon the governmental-proprietary distinction which no longer is recognized, Cain v. Board of Comm’rs. (1986), Ind.App., 491 N.E.2d 544 , the language employed by our supreme court in City of Logansport is instructive. That language clearly and unequivocally states that when government goes into a business enterprise of the type normally operated by private individuals or corporations, government operates that business on the same footing as private businesses. The philosophy announced by our supreme court, and the one to which I believe we should adhere, is that a government operated business enterprise is no different than a privately operated enterprise in the area of tort liability. Thus, I dissent from the majority’s extension of the protection of the Tort Claims Act in this case to Citizens.
Although beyond the scope of the only question for decision in this case, the majority states that the standards set forth in *317 170 I.A.C. 6—3—2(E)(1) and (2) imposed no duty upon Citizens’ because the installation in question was not an initial installation. In so stating, the majority overlooks the fact that service previously had been discontinued and was being reconnected. In my view, a reconnection is subject to the same requirements as an initial installation. Indeed, in 49 C.F.R. § 192.725 it is provided that “[e]ach disconnected service line must be tested in the same manner as a new service line, before being reinstated.” Thus, a reconnection is for all practical and legal purposes, an initial installation. Thus, I disagree with the statements of the majority on this matter, although I consider them dicta.
My dissent is limited to the precise and narrow issue of whether, in this case, Citizens is clothed with immunity under the Tort Claims Act. I believe it is not. To extend the immunity as the majority has done runs counter to the purposes of the act. Whether, in this case, Citizens was under any duty, breached any duty, was negligent, or whether it proximately caused the loss involved, all are questions which are not before us, and upon which I express no opinion. But on the one issue presented, I cannot agree with the majority, and, therefore, respectfully dissent.