dissenting.
I respectfully dissent.
The plaintiffs alleged the City was negligent, under Tex.Civ.PRAC. & Rem.Code Ann. § 101.021(2) (Vernon 1986), in its use of tangible personal property by selecting and continuing to use the swings in the City park. The majority holds that summary judgment was properly granted against this claim because it was the condition of the swing, and not its use, that caused James’s injury. I disagree.
Section 101.021(2) provides that a governmental unit is hable for personal injury or death caused by a condition or use of tangible personal or real property. I agree that the plaintiffs alleged a cause of action regarding the condition of the property. The plaintiffs alleged the swings were defective or inadequate, and the defective condition caused James’s injury. See Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983). However, I also think the plaintiffs properly alleged that the use of the swings by the City in its parks caused James’s injury. Children were allowed to use the swings without supervision and in such a way as to allow unfettered access to the dangerous area behind the swings when they were in use. The plaintiffs stated a cause of action that in my opinion should survive summary judgment when they alleged that the City improperly used or placed the swings in its public parks, whether the swings were defective in themselves or not, and that one of those swings injured James.
This case involves a serious injury to a child. The pleadings permissibly include alternate theories of recovery, and the response to the summary judgment clearly raises a fact issue as to one of the theories. The plaintiffs deserve to have their case heard on the merits.
Therefore, I would reverse the summary judgment on this issue and remand the case to the trial court.