Slusher v. State, 3-381A84

Docket NºNo. 3-381A84
Citation437 N.E.2d 97
Case DateJune 30, 1982
CourtCourt of Appeals of Indiana

Page 97

437 N.E.2d 97
Marietta SLUSHER and Frank Slusher, Defendants-Appellants,
STATE of Indiana, Plaintiff-Appellee.
No. 3-381A84.
Court of Appeals of Indiana,
Third District.
June 30, 1982.

Page 98

Bernard M. Tetek, Gerald N. Svetanoff, Gary, William G. Conover, Valparaiso, for defendants-appellants.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.


The appellants, husband and wife (Slushers) were the owners of an apartment house. Despite complaints and warnings about the deteriorated condition of the stairs and landings which constituted the rear access to the apartments, Slushers did nothing substantial to repair or replace the stairs and landings although they indicated they were planning to install a metal unit.

On May 7, 1979, while a social guest of one of the third floor tenants, Laureen Olsen went out upon the rear porch of the apartment. When she leaned against the railing it gave way and she fell to the ground below. A week later she died from injuries sustained in the fall.

Upon these events the Slushers were indicted and convicted of reckless homicide. On appeal Slushers challenge the sufficiency of both the indictment and the evidence.

Their argument challenging the evidence addresses the question of whether the evidence established that they had a common law duty to the deceased which could serve as the necessary predicate for criminal liability. 1 We agree with the state that

Page 99

a common law duty was imposed upon the landlords.

The Slushers had a duty to maintain in safe condition the common stairways and other parts of the building used in common by tenants and over which the landlords retained control. Rossow v. Jones (1980), Ind.App., 404 N.E.2d 12. See also Tippecanoe Loan & Trust Co. v. Jester (1913), 180 Ind. 357, 101 N.E. 915; Coleman v. DeMoss (1969), 144 Ind.App. 408, 246 N.E.2d 483; Restatement (Second) of Property, Landlord & Tenant Sec. 17.3 at 189 (1977); Restatement (Second) of Torts Sec. 360 at 250 (1965); Prosser, Law of Torts (4th Ed. 1971) Sec. 63 at 405-408.

A landlord's duty to maintain common areas in a safe condition extends to business visitors and social guests of a tenant, for the duties and liabilities of a landlord to business visitors and social guests of a tenant are the same as those which the landlord owes to the tenant. Town of Kirklin v. Everman (1940), 217 Ind. 683, 689, 28 N.E.2d 73, 75, modified on other grounds 217 Ind. 692, 29 N.E.2d 206. Professor Prosser observed that the duty to maintain common areas retained under the landlord's control in a safe condition "extends also to members of the tenant's family, his employees, his invitees, his guests, and others on the land in the right of the tenant, since their presence is a part of the normal use of the premises for which the lessor holds them open." (footnotes omitted) Prosser, supra, Sec. 63 at 406. The justification for extending the landlord's duty to third persons lawfully upon the leased property was stated persuasively by the American Law Institute:

"If the terms of the lease entitle the lessee to permit third persons to come upon the part of the land retained within the lessor's control, it is immaterial whether they come as invitees of the lessee or as his licensees. It is the lessor's business, as such, to afford his lessee facilities for receiving all persons whom he chooses to admit for any legitimate purpose. Therefore, a person who, as between himself and the lessee, is a licensee enters the land on a matter directly connected with the business of the lessor. He is, therefore, entitled to expect that the lessor will exercise reasonable care to discover and remedy any condition which makes his acceptance of the lessee's license dangerous to him."

Restatement (Second) of Torts Sec. 360, comment f. at 253 (1965).

The Slushers have not seriously disputed this statement of the law. Instead, the gist of their argument is that on the day of Olsen's fall, Novick was merely a tenant at sufferance in the building, and therefore neither she nor her guests were entitled to the rights afforded bona fide tenants. They assert that Olsen's legal status on the day of her fall should be that of a mere licensee upon the property of another, and that accordingly, as to her, the landlords had no duty to safely maintain the premises. See, e.g., Olson v. Kushner (1965), 138 Ind.App. 73, 211 N.E.2d 620; Standard Oil Co. of Ind., Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711.

The basis for this contention arises from the facts adduced at trial. It appears that Novick rented the apartment on January 3, 1979 for $250 per month, apparently on a month-to-month tenancy. Sometime before March 21, 1979, Novick discontinued paying rent because she felt the apartment was uninhabitable due to a number of uncorrected defects, including the state of the rear stairways and landings. Slushers then instituted ejectment proceedings in the Lake County Court and on May 1, 1979 the court, pursuant to Novick's agreement to vacate by May 5th, entered an ejectment order to that effect.

The day before Novick was to have vacated the Slusher apartment she discovered the apartment she had planned to move to was not going to be available. She advised Mrs. Slusher of this development and asked if she could remain in Slushers' apartment until she and her children could find another place to live. Mrs. Slusher responded, "Just find another place and get out by the end of the month." Two days later Olsen fell from the third floor porch.

Page 100

In view of Indiana's continued adherence to the invitee-licensee-trespasser determinants of a landowner's duty, we do not dispute Slushers' assertion that if Novick was only a tenant at sufferance, they did not have a duty to make the premises safe for Novick's visitors. As stated in Sec. 360 of the Restatement Second of Torts, supra, the duty to a lessee's visitors is imposed because it is the lessor's business to afford the lessee the uses of the tenancy. That is not true of a tenancy at sufferance where the tenant has no right to possession. See Coomler v. Hefner (1882), 86 Ind. 108.

However, where the tenant has the express permission of the landowner a tenancy at sufferance does not arise. Coomler, supra. At minimum a tenancy at will is created, and the nonconsensual basis for defeating the existence of the landlord's duty no longer exists.

Thus, while one may inquire whether the law should impose criminal responsibility upon the basis of such finely threaded points of law, we have no doubt that under the facts, a duty to make the premises reasonably safe was indeed owed by the landlords. It is the very existence of that duty which evokes our concern in this kind of a prosecution.

We are concerned that our citizens not be subject to prosecution and conviction of a felony offense, most especially a homicide, for conduct which is merely negligent. We believe the legislature was of the same mind in enacting the new criminal code even though, admittedly, it moves us considerably closer to the civil law approach to crimes.

IC 35-41-2-1(a) mandates that "[a] person commits an offense only if he voluntarily engaged in conduct in violation of the statute defining the offense." The Study Commission's comments to this section quote with approval from both Jerome Hall 2 and Dean Pound: 3

"[T]he harm forbidden in a penal law must be imputed to any normal adult who voluntarily commits it with criminal intent ...."

"Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."

The cited statutory section continues by stating:

"However, a person who omits to perform an act commits an offense only if he has a statutory, common law, or contractual duty to perform the act."

It should be noted that these two statements from the code do not appear as separate sections or even separate paragraphs of the statute. They should, accordingly, be construed together. Thus, the omitting actor must both violate a duty and "voluntarily" engage in the omission which constitutes the breach.

Secondly, in various provisions the code imposes criminal responsibility upon one who acts "recklessly." IC 35-41-2-2(c) provides a general definition of that term. It states:

"A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct."

"Plain" ordinarily means "open" or "obvious," and its use in the statute implies an objective standard. "Conscious" means "knowing" or "aware" and thus adds a subjective standard. We take "unjustifiable" then to add "without a legal justification" to the definition. The first half of the definition therefore requires a disregard of potential harm on both a subjective and an objective basis while the actor is engaging in conduct, and while the conduct is without justification in the law.

In addition, in order to act recklessly the statute mandates that the disregard "involves

Page 101

a substantial deviation from acceptable standards of conduct."

The Study Commission comments indicate that this phrase "makes it clear the criminal recklessness is not the same recklessness which insures tort liability." Accepting this intent on the part of the commission does little to provide insight into what constitutes a substantial deviation and what authority is to determine an acceptable standard of conduct for criminal, as opposed to civil, liability purposes.

The commission went on to say, in part, that "recklessness differs from negligence in that in the latter the actor is completely unaware of the dangerousness of his behavior although actually it was...

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  • Hodge v. Nor-Cen, Inc., R-CE
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