dissenting on motion for rehearing.
Finding myself in disagreement with both the majority members of the Court and to some extent, Justice Ellis, I file this additional dissent.
REGULAR DEFECT
Neither Payne nor the governmental units claim the seawall is not a regular defect. Therefore, as licensor, the County owed the Paynes a duty to warn them of an unknown danger. In its motion for summary judgment, the County argued that it did not violate any duty to the deceased plaintiffs because the summary judgment proof established that the obvious dangerous condition presented by the edge of the seawall was, by Mr. Payne’s own admission, readily apparent to him and he thought it would be to his wife. In my view, the proof does not establish as a matter of law that Mrs. Payne and her daughter had knowledge of the hazard such as would relieve the County of its duty as a licensor to either warn a licensee of an unknown danger or make the premises reasonably safe. I agree with Justice Ellis that the issue' of knowledge and appreciation on the part of Mrs. Payne and her daughter are questions of fact precluding summary judgment.
SPECIAL DEFECT
I also disagree with the majority’s position that classification of the seawall as special defect requires us to construe the Tort Claims Act.
Payne, in his sixth amended original petition alleged the seawall to be a special defect as that term is applied and used in § 101.022(b) of the Civil Practice & Remedies Code. In his response to the County’s motion for summary judgment, Payne also asserted that the seawall was a special defect. As is the case with “dangerous conditions,” the question of whether a condition is a “special defect” can be a jury question. Turvey v. City of Houston, 602 S.W.2d 517, 518 (Tex.1980); State v. McBride, 601 S.W.2d 552, 554 (Tex.Civ.App.—Waco 1980, writ ref’d. n.r.e.); City of Austin v. Cooksey, 561 S.W.2d 874, 881 (Tex.Civ.App.—Eastland 1978), rev’d on other grounds, 570 S.W.2d 386 (Tex.1978); Smith v. State, 716 S.W.2d 177 (Tex.App.—El Paso 1986, writ ref’d n.r.e.).
*487When the condition complained of is obviously an excavation or obstruction or a defect of the same kind or class on a highway, road or street and it is undisputed that the governmental unit created the condition or had actual knowledge of it, it can be said that the dangerous condition is a “special defect” as a matter of law giving rise to the duty to warn or make reasonably safe. Miranda v. State, 591 S.W.2d 568 (Tex.Civ.App.—El Paso 1979, no writ). However, when the condition complained of is not on a highway, road or street, the issue of whether the condition is a “special defect” is a question of fact to be determined by the trier of fact for the purpose of establishing the duty on the part of the governmental unit to warn of the condition or to make it reasonably safe. If the issue of constructive knowledge is raised by the facts, that issue is likewise a question of fact.
Here, since it is undisputed that the seawall was not on a highway, road or street, a fact issue exists. Constructive knowledge on the part of the county is not an issue because the seawall was created by the county. State v. McBride, supra at 558.
I am aware that in County of Harris v. Eaton, 573 S.W.2d 177 (Tex.1978), the supreme court invoked the ejusdem generis rule to find as a matter of law that an abnormally large hole which had reached the proportions of a ditch across the highway was a “special defect.” I do not consider Eaton to be in conflict with the position that whether an excavation or obstruction or defect of the same kind or class not on a highway, road or street can be a special defect is a fact issue.
As movant, the County had the burden of showing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. The County in its motion for summary judgment and in its brief supporting the motion failed to address the issue of whether the seawall constitutes a “special defect” or Payne’s allegations under § 101.022(b).
In this case, the question of what duty, if any, the County owed to Payne depends on whether the seawall is a “special defect,” which I would hold is a fact issue under the proof. Using the mandated standard for reviewing summary judgments, I would hold that by its failure to show as a matter of law that Payne could not succeed upon any theories pleaded, the County did not establish its right to summary judgment.
I recognize that when a trial court enters an order that does not state the grounds upon which it was granted, the party appealing must show that each of the independent arguments alleged in the motion is insufficient to support the order. Netterville v. Interfirst Bank, 718 S.W.2d 921 (Tex.App.—Beaumont 1986, no writ); Brasher v. Carr, 743 S.W.2d 674 (Tex.App.—Houston [14th Dist.] 1987), rev’d on other grounds, 32 Tex.Sup.Ct.J. 378 (May 10, 1989). However, I do not believe this rule applies where, as here, the County wholly fails to address in its motion for summary judgment, the Paynes’ cause of action based on the allegation that the seawall is a “special defect.” A defendant who moves for a summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff’s cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex.1983). Payne’s pleadings and written response to the County’s motion for summary judgment specifically pointed out to the trial court his claim that the seawall was a “special defect.” As was made clear in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979), the non-movant need not even file an answer or response to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment.
In his brief to our court, Payne specifically argues the County owed the Paynes a duty to warn of the “special defect” presented by the seawall and a fact issue existed regarding the county’s fulfillment of its duty to warn of a “special defect.” By his written response to the motion for summary judgment and his brief filed in our court Payne has shown that the *488grounds presented by the County in its motion for summary judgment are insufficient as a matter of law to support the summary judgment.
I would reverse the summary judgment for the County on the grounds that the County failed to meet its burden to show as a matter of law that no material issue of fact exists as to Payne’s cause of action under Tex.Civ.PRAC. & Rem.Code Ann. § 101.022(b).
SUMMARY JUDGMENT FOR CITY OF GALVESTON
I concur in Justice Ellis’ opinion regarding reversal of the summary judgment granted in favor of the city of Galveston.