concurring.
I agree that the judgment should be reversed and rendered; however, my decision *426is based solely on my belief that appellees failed, as a matter of law, to establish a duty on the part of the city. State Dep’t of Highways & Pub. Transp. v. Payne, 34 Tex.Sup.Ct.J. 793, — S.W.2d - (Sept. 11, 1991), establishes that the issue of whether a condition is a “premises” or “special” defect is one of duty and involves statutory construction. As such, it is therefore a question of law for the court to decide rather than a fact question for the jury. The facts in this case show that the city maintained a park area next to a resa-ca. The bank leading to the resaca was steep and was not maintained in as neat a condition as the park. There was no evidence that anything had been done to the bank to make it any more dangerous than any steep bank next to a body of water; therefore, any defect which existed would be a “premise” rather than a “special” defect. There is no evidence or finding that the incident in question was caused by any willful, wanton or grossly negligent conduct on the part of the City. For this reason, I would reverse the judgment and render judgment that appellees take nothing.
I consider the remainder of the legal and factual discussion by the majority unnecessary and do not adopt either the factual recitation or legal reasoning relating to things other than the duty of the appellant, City of San Benito.