concurring.
On the governmental immunity issue in this case, I would employ the following reasoning rather than that of the majority opinion.
The Tort Claims Act (the “Act”) waives sovereign immunity for, among other things, personal injury caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex. Crv. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 2005). A private premises’ owner may be liable for two types of negligence in failing to keep the premises safe: (1) that arising from a premise defect, and (2) that arising from an activity on the premises. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex.1999) (per curiam); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997). Premise defect and negligent activity are independent theories of recovery. Olivo, 952 S.W.2d at 529. Recovery on a negligent activity theory requires that the injury be a contemporaneous result of the activity1 itself rather than by a condition created by the activity. Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998). Conversely, if a person is injured as a result of a condition of the premises, including property on the premises, rather than any conduct occurring at the time of the injury, he has only a premise defect cause of action. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229-*17730 (Tex.2004); Olivo, 952 S.W.2d at 527. The same distinction exists between a condition and use of property under the Act because it expressly waives governmental immunity only to the extent, among other things, that a private person would be liable under Texas law. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2).
The Harrises’ petition essentially alleges that: (1) the injury occurred on property owned, occupied, or controlled by the City and on which the Harrises were invitees; (2) the injury was caused by a condition or use of tangible personal or real property (the sculpture); (3) the sculpture is constructed with numerous holes in the metal structure, which form “pinch points” that can cause serious injuries; (4) the sculpture had recently been moved by the City, and was devoid of any protective barriers or signs warning of any potential dangers, and these actions were ongoing when Joshua was injured; (5) Joshua placed his hand on the sculpture, and when he moved away from it, his finger suffered a traumatic injury by the dangerous condition and use of the sculpture; (6) the sculpture was a “key fixture” in the contemporaneous and ongoing activity of the City’s effort to attract attention to the zoo; and (7) the City knew or should have known of the dangers “inherent” in the sculpture and owed the Harrises the duty to use ordinary care with respect to the condition or use of tangible personal or real property owned or controlled by the City. The Harrises’ petition thus alleges both a condition and use of the property, be it real or personal.
The “use” or ongoing activity they allege is employing the sculpture to draw attention, and thereby attract visitors, to the Zoo. If this were indeed a “use” of the sculpture, then the fact that the sculpture is real property would not transform the “use” claim into a “condition,” i.e., premise defect, claim, as the majority holds. However, because the Harrises’ petition does not allege, and their evidence does not raise a fact issue, that any City employees were conducting any contemporaneous activity with, on, or near the sculpture that could be considered a true use of it, i.e., a negligent activity,2 their claim is not one for a negligent activity or use of property (be it real or personal), but is instead a “condition” claim.
If the sculpture was tangible personal property, a claim for injury due to a condition of it would be subject to the waiver of immunity only to the extent that the same theory of recovery is recognized as against non-governmental parties, such as for products liability. Because the Harrises have not alleged facts supporting, or otherwise asserted, any such claim that would impose liability on a private person for a condition of tangible personal property, there can be no waiver of immunity on that basis. Thus, as the Harrises have not alleged a use of property (real or personal) or a condition of personal property, all that remains to be considered is a condition of real property, i.e., a premise defect.
Ordinarily, where a claim under the Act arises from a premise defect, the governmental unit owes the claimant the duty owed to a licensee, unless the claimant has paid for the use of the premises, in which case the duty owed to the claimant is that owed to an invitee. See Tex. Crv. Prac. & Rem.Code Ann. § 101.022(a) (Vernon Supp. 2005). In this case, although the Harrises contend that they were invitees, they have not pled or offered evidence that they paid to enter or use the area where the injury occurred, or any other facts that would support their alleged status as invitees rather than licensees.
*178The duty a premises’ owner owes a licensee is to refrain from causing injury by willful, wanton, or gross negligence, and to warn or make reasonably safe any dangerous conditions the owner actually knows about and the claimant does not. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). In this regard, the Harrises have not alleged or offered evidence of any willful or grossly negligent conduct by the City, let alone that Joshua’s injury resulted from any such conduct. Similarly, as noted by the majority, although their petition alleges that the City “knew or should have known” of the dangerous condition of the sculpture, they have not alleged or offered any evidence that the City actually knew of this condition, as would be required for recovery by a licensee.
Lastly, where a claimant has either been invited or given permission to enter the premises for recreation, the Recreational Use Statute3 (the “Statute”) limits the duty owed by the property owner, including a governmental unit, to that owed to a trespasser (i.e., to refrain from causing injury wantonly, willfully, or through gross negligence). See Tex. Civ. PRAC. & Rem. Code ANN. § 75.002(c) (Vernon Supp.2005); City of Bellmead v. Torres, 89 S.W.3d 611, 613-14 (Tex.2002). The Statute so limits a governmental unit’s liability even if the claimant paid to enter the premises. Tex. Civ. PRAC. & Rem.Code ANN. § 75.003(c) (Vernon 2005); Miranda, 133 S.W.3d at 225. Recreation, as defined by the Statute, includes activities such as picnicking, hiking, nature study, and “any other activity associated with enjoying nature and the outdoors.” Tex. Civ. Prac. & Rem.Code Ann. § 75.001(3) (Vernon Supp.2005).
The Harrises argue that the Statute does not apply because they were not engaged in a recreational activity when Joshua’s injury occurred. However, their petition alleges that the injury occurred in connection with taking a photo during a family outing outside the Houston Zoo. It alleges, and they have offered evidence of, no facts that would suggest they were making a commercial or other non-recreational use of the City’s property.4
Therefore, because the Harrises have not alleged or offered evidence that they were invitees or that any conduct by the City breached the duty owed to a licensee or trespasser, their petition also fails to state a claim for which the City’s immunity has been waived for premises liability.
. Similarly, "use” under the Act has been defined to mean "to put or bring into action or service; to employ for or apply to a given purpose.” San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.2004).
. See Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex.2005).
. Tex. Civ. Prac. & Rem.Code Ann. §§ 75.001-.004 (Vernon 2005 & Supp.2005).
. The Harrises also argue that the Statute does not apply to this case because it only applies by its terms to realty, and the City failed to establish that the sculpture was realty. Because the Statute addresses only the duty that would apply to a premises liability claimant, it would seem to have no application to a claim for a condition of tangible personal property or for use of either real or personal property. However, as discussed in the preceding paragraphs, the Harrises have alleged no such claims in this case.