dissenting.
I respectfully dissent. Entergy only asks this court to consider whether the “attractive nuisance” doctrine applies to this case. This is certainly an issue be*495cause the status of Shane Isom determines the duty owed to him.1 I believe there is some controverted evidence about Shane’s level of maturity; thus whether the doctrine applies requires a factual resolution by the jury.
However, there is an additional reason the denial of the summary judgment should be affirmed. Without naming it as such, the Isoms present the “gratuitous licensee” doctrine. In their original petition, the Isoms state:
At all times material to the incident ... the Interurban right-of-way was heavily traveled by people of all ages operating various motorized vehicles ... While Defendant herein maintains the Interurban right-of-way is private property, Defendant failed and/or refused to place any warning signs, barriers and/or gates on their property to deter people from entering. Further Defendant failed and/or refused to erect “no trespassing” and/or “keep off property” and/or “private property” signs. Through their actions/inactions, Defendant allowed the general public to use this property without restriction.
At this time of the incident, there was a dangerous condition on the Interurban right-of-way of which Defendant knew or should have known.... Defendant knew or had reason to know that individuals of all ages, including children, would frequent the area of the right-of-way where this dangerous condition existed.
In their response to Entergy’s motion for partial summary judgment, the Isoms argued “Entergy’s improperly marked and configured guy wires created an unusual and deceptive hazard” and “it was well known that the interurban right-of-way was a popular place for children to ride ATVs.” Again, this speaks in terms of the “gratuitous licensee” doctrine.
This court in Murphy v. Lower Neches Valley Authority, 529 S.W.2d 816, 820 (Tex.Civ.App.-Beaumont 1975), rev’d on other grounds, 536 S.W.2d 561 (Tex.1976) recognized the “gratuitous licensee” doctrine stating:
While the term of “gratuitous licensee” is not in common usage in Texas in cases of this nature, it has been defined as “one whose presence upon the premises is solely for the visitor’s own purpose in which the possessor of the property has no interest, either business or social, and to whom the privilege of entering is extended as a mere favor by express consent or by general custom.” Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex.Civ.App.-San Antonio 1954, writ refd n.r.e.) (citing s 331 of the Restatement of Torts). That particular section of the Restatement was omitted in the second edition but was carried over in substantially the same terms into s 330 (comment h(l)). In Gonzalez, the suit was brought on behalf of a minor who *496had tripped over some rocks which had been placed on the playground of a drive-in theater by others. The owner had allowed other children to play on the premises; he knew of the presence of the rocks which the children brought, and such practice had continued for a long period of time. The child was held to be a “gratuitous licensee.”
Other examples of “gratuitous licensees” include situations where a trespass has been tolerated for such a sufficient period of time that the public believes it has the “permission” of the possessor to use the property, e.g., such as the use of a pathway through a coal company’s property [Markovich v. Jefferson Coal & Coke Corporation, 146 Pa.Super. 108, 22 A.2d 65 (1941)]; where people have used a railroad’s right-of-way for a period of time without manifested objection from the company, those people have been classified as gratuitous licensees rather than trespassers [Louisville & Nashville Ry. v. Blevins, 293 S.W.2d 246 (Ky.App.1956); accord: Gulf, C. & S.F. Ry. Co. v. Matthews, 99 Tex. 160, 88 S.W. 192 (1905); Jara v. Thompson, 223 S.W.2d 941 (Tex.Civ.App.-San Antonio 1949, writ ref d) ]. A gratuitous licensee has also been succinctly defined as a licensee who is “not a business visitor.” Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 695, 25 A.L.R.2d 592 (1951).
Clearly this doctrine was raised by the Isoms and not addressed by Entergy in its motion for partial summary judgment. As stated by our Supreme court in McConnell v. Southside Independent School District, 858 S.W.2d 337, 342 (Tex.1993):
When the motion for summary judgment clearly presents certain grounds but not others, a non-movant is not required to except. This distinction was recognized and correctly resolved in Roberts v. Southwest Texas Methodist Hospital, [811 S.W.2d 141 (Tex.App.-San Antonio 1991) ] when the court held:
When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.
811 S.W.2d at 146. Why should a non-movant be required to except to a motion expressly presenting certain grounds and not others? The only effect of such a rule would be to alert the movant to additional unasserted grounds for summary judgment.
In this context, the majority should not have issued a rendition. They are in effect rendering a final summary judgment which includes more relief than was requested in the motion. The proper judgment should be a rendition on the “attractive nuisance” doctrine issue, but as to all causes of action and issues not expressly urged in the motion for summary judgment, i.e., the “gratuitous licensee doctrine” issue; there should be a remand. IBP, Inc. v. Klumpe, 101 S.W.3d 461, 468-469 (Tex.App.-Amarillo 2001) (citing Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex.1997)).
I would affirm the denial of the summary judgments.
. The extent of a landowner’s liability for injuries caused by a condition existing on the land depends on the status of the injured person. Thus, the scope of a landowner’s duty depends on whether, at the time of the injury, the person on the land was an invitee, a licensee, or a trespasser.
To invitees, the landowner owes a duty to exercise reasonable care to keep the premises in a reasonably safe condition for use by the invitee. To licensees, the landowner owes a duty to warn of or to make safe hidden dangers known to the landowner and a duty not to intentionally, wilfully, or through gross negligence cause injury. And to trespassers, a landowner owes only a duty not to intentionally, wilfully, or through gross negligence cause injury.
While this traditional classification system has been subject to debate, it remains the law in Texas.
Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 660 (Tex.1999)(Enoch, J., concurring).