dissenting with separate opinion.
I concur with the majority's determination that Puchalski's affidavit should not *1249have been admitted into evidence. I respectfully dissent, however, to the majority's reversal of the trial court's grant of summary judgment. |
While I agree with the majority, that Cerestar had a general duty to keep its property in a reasonably safe condition, I do not agree that there is a fact question pertaining to the breach of that duty. In order to defeat Cerestar's motion for summary judgment on the issue of breach of its duty, Tina was required to show that Cerestar had superior knowledge, of the allegedly dangerous condition of the gate. See Zawacki v. U.S.X., 750 N.E.2d 410, 414 (Ind.Ct.App.2001).
The designated evidence shows that Saf-way is regularly engaged in the erection of scaffolding and that Greg and his crew had control of the job site at the time Greg's fall occurred. The designated evidence also shows that Greg and his crew had worked with similar gates at Cerestar in the past, had removed the same type of gate from its brackets one floor below for a different job on the morning of the accident, and had visually inspected the gate before proceeding. Furthermore, the designated evidence shows that the gate met all applicable building codes, safety regulations, and safety guidelines, and that there was no scientific basis for concluding that the gate had failed. In short, the evidence fails to establish an issue of fact pertaining to whether (1) Greg's fall was caused by an unreasonably dangerous condition, or (2) Cerestar's knowledge of the allegedly dangerous condition of the gate was superior to the knowledge possessed by Greg and his crew.
I would affirm the trial court's grant of summary judgment for Cerestar.