dissenting.
I respectfully dissent.
I agree with the majority that the evidence supports a finding of negligence by Brazoria County in allowing water to stand on a sidewalk, as occurred here. However, I would hold as a matter of law that there was no evidence to show one indispensable element of gross negligence, viz., the County’s conscious indifference to Mrs. Davenport’s safety and welfare. I believe the record fails to show “that defendant knew about plaintiff’s peril, but didn’t care.” Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981).
The majority states that the required finding of conscious indifference does not depend upon a showing that the County knew that persons customarily used the portion of the walkway where Mrs. Davenport fell. Instead, the majority reasons, the necessary conscious indifference turns on whether the County knew of the existence of the dangerous condition “under such circumstances and for such length of time that its conscious indifference for the safety of others could reasonably be inferred.” (Emphasis added.)
If “such circumstances” did not require the County’s knowledge of a customary use of the portion of the sidewalk in question, I would hold that those circumstances at least required, before conscious indifference could be inferred, proof that: (1) the portion of the sidewalk in question had in fact been used previously as a route to the clinic’s entrance; and (2) the County knew it. Both of these elements are lacking.
The evidence shows undisputedly that all of the County’s public clinics were customarily entered from outside the building through door eight. In all of the 20 previous times that Mrs. Davenport had come to the prenatal clinic, door nine had never been used as the public entrance to either the prenatal or the family planning clinic. There was no evidence that door nine had *833ever been used before the date of her fall as a public entrance to the clinics. The novelty of the use of door nine as an entrance is underscored by the fact that clinic authorities had a nurse lead the patients from door eight, rather than simply directing them to use the side entrance through door nine.
The majority cites Winn-Dixie Texas, Inc. v. Buck, 719 S.W.2d 251 (Tex.App.—Port Worth 1986, no writ), as similar and precedential. I find it to be readily distinguishable from the fact situation of our case. In Winn-Dixie, the defendant grocery store’s manager and employees were aware of, and failed to repair, a water leak situated in front of produce counters where produce was sold to the public, and where store personnel knew the public regularly passed by. The defendant retailer’s awareness of the hazardous condition, situated in an area known and intended to be used by the public, showed the grossly negligent mind set in Winn-Dixie. By contrast, there is a total lack of evidence in our case to show that the County was aware that the hitherto unused side entrance route was a peril to Mrs. Davenport or others, and did not care.
I would hold that the trial court erred in overruling the County’s motion for instructed verdict and judgment n.o.v., and would reverse and render a judgment of dismissal for Brazoria County.