*1 injury. that Red Roof We conclude resultant duty. non-delegable Purvis a
did not owe
Conclusion roofing project in -this nature of the
The danger so as type
case did create duty in Roof non-delegable Red
to create a performed
on that the act to the basis Any probably cause harm to others.
would abrogate general would
other conclusion nonliability principal hires
rule of duty, independent Absent contractor. hiring negligent of an inde-
Purvis’ claim of maintained.
pendent contractor cannot be Roofs improperly
The denied Red trial Accordingly, summary judgment.
motion for
we reverse and remand with instructions summary judgment of Red
enter favor
Roof on all claims. remanded.
Reversed and JJ., BARTEAU,
FRIEDLANDER
concur. PUBLICATIONS,
RIGHT REASON
Appellant-Plaintiff,
v .
Anthony SILVA, Appellee-Defendant.
No. 71A05-9707-CV-306. Appeals
Court of of Indiana. 10, 1998.
March *2 Rice, Bend,
Charles P. South Appel- lant-Plaintiff. Bodensteiner,
Ivan E. Valparaiso, Ap- pellee-Defendant. LIABILITY FOR CRIMINAL CIVIL
OPINION MISCHIEF BARTEAU, Judge. I. complaint, Right In Count I of its amended (“Right Rea- Right Reason Publications has civil Reason claims that Silva incurred
son”) *3 the of its appeals dismissal liability under Indiana’s criminal mischief Anthony against Silva. states, part: in which relevant Affirmed. person knowingly or who ... intention- ally pecuniary to suffer loss causes another by deception by expression an of inten- FACTS injure person damage or to tion another not-for-profit Right Reason “is a edu- impair rights the or to the of publishes independent club which cational person ... commits criminal mis- University journal at the of student Notre chief. ... cir- Apparently, Right R. Reason Dame.” 35-43-l-2(a)(2). A civil action journal by placing copies of its culates them permitted by Indiana under statute this in stands located at the Universi- distribution 34-4-30-1, which states that Code Section 23, 1996, ty. April took and dis- On Silva pecuniary a person a suffers a loss as “[i]f 2,000 copies posed “approximately [the of of ..., a of 35-43 the result of IC at journal] from distribution stands student may bring against the a civil action various locations the [damages.]” person who caused loss prompted Right Dame.” R. 6. This event allegations in According to the set forth complaint against file a Silva. Reason to I, “knowingly Silva Count Silva, complaint was later amended. This pecuniary [Right by Reason] caused loss 12(B)(6), pursuant Trial Indiana Rule expressed an to im- actions which intention (1) Right amended pair”: rights moved dismiss Reason’s “the common law of free expression publishers of the of Rea- complaint upon failure to state a claim (2) son,” rights publishers “the of granted. relief be which could The trial I, under Article section 9 of Reason dismiss, granted Silva’s motion to and Constitution,” (3) “the fundamen- Indiana appeals. Right Reason now rights publishers of of tal I, 1 expressed in section of as Article REVIEW STANDARD OF (4) Constitution,” rights to “the Indiana from harass- publish, right to be free 12(B)(6) “A Trial Rule motion to ment, right exchange of ideas to free and the sufficiency legal of the com dismiss tests guaranteed publishers to the Assocs., Inc., plaint.” Johnson v. Scandia Lac, Policies and Student du under Life 51, (Ind.Ct.App.1994). 641 56 When N.E.2d Procedures, University Dame 1995- Notre 12(B)(6) dismiss, reviewing motion to “[w]e 1996 R. 6-7. IT pleadings light in the most favorable view nonmoving party, every view, allegations to the and we draw none of these In our party.” upon can be provide inference in favor of that which relief reasonable basis legally cogni note no granted. We first that County Zoning v. Hamilton Bd. Couch presented by the claim is 89, zable (Ind.Ct.App. Appeals, N.E.2d 41 609 right expres free a common law invoking 1993). “We will affirm a successful T.R. Indiana, right in sion. Even if such a existed 12(B)(6) motion a set when states is a impaired it. Silva could not have Silva true, which, sup if would not of facts even actor; citizen, and we private not state complaint.” in port requested the relief that expression right that a of free refuse to hold Morton, Indianapolis v. Garage Doors 682 by than a impaired someone other be 1296, (Ind.Ct.App.1997), 1301 trans. N.E.2d actor. state “Further, trial denied. we will affirm the if it is grant allegations of a motion to dismiss court’s also note that We expression rights under the any theory invoking or basis found free sustainable on a claim fail to state Indiana Constitution record.” Id. 1350 210, (1969) granted. 216, 663, which can App. relief state 245 “The N.E.2d provisions (stating federal constitutional that “the do word ‘school’ common usage, private corporations is considered local school
apply to unauthorized acts citi- State, generally higher and does not include seats zens.” Hutchinson v. N.E.2d learning usually (Ind.1985). which are referred as Because Silva is a universities.”); colleges Pridgeon, see also citizen, acts, state, his unauthorized (noting “[although 569 N.E.2d at that impaired not have the constitutional could meanings, the word ‘school’ has numerous rights by Right invoked Reason. colleges this court excluded and universities Reason, finally We note that from the usage’ ‘common this term in alleging impairment granted by ....”); (holding Lawrence id. at 724 cf. publication the Notre Dame “Student Life property’ words ‘school do “[t]he not include Procedures,” claim Policies and states no *4 college that, university.”). or We conclude granted. Right which relief can be meaning within the of our criminal mischief cited, find, Reason has not and we cannot statute, University the of Notre Dame is not support authority proposition that to the a “school.” judicial remedy appropriate pri is when a alsoWe conclude that our crimi Silva, citizen, rights granted vate like violates “community nal mischief statute’s term cen private university’s publication. We University ter” does not include the of Notre conclude that there is no of cause action grounds Dame’s and A facilities. “communi of Right asserted Rea ty” group people is of living “[a] in the same properly son. The trial court dismissed the locality government.” under and the same portion pur of the amended which Heritage Dictionary The American of ports impose liability Code under Indiana (William ed., English Language 270 Morris 35-43-l-2(a)(2). Section 1981). Although “community” may the term given meanings, be various we believe that II. meaning fair of enough the term is broad In I of complaint, Count its amended general public. include members of the A Right allegation Reason un makes another center,” “community then, place is a to which der the criminal mischief statute. It is al general public of the members have access. leged that “recklessly, Silva knowingly, or Notre Dame is a university. Be- intentionally damaged personal property private, cause it is grounds its facilities and was which contained in a structure or located may necessarily not be accessible to mem- community at a school or center.” R. 7. This general public. of the bers The criminal allegation invokes Indiana Code Section 35- center,” “community mischief statute’s term 1—2(b)(5), states, part: which in relevant 43— therefore, not grounds does include and person recklessly, knowingly, who University facilities located intentionally damages personal proper- ... Dame. We that the trial properly hold ty contained in a structure at [a located portion dismissed the com- amended community school or center] without the plaint which invokes Indiana Code Section owner, possessor, consent of the or occu- 35-43-l-2(b)(5). pant property of damaged, that is com- mits institutional criminal mischief.... CIVIL LIABILITY FOR CRIMINAL that,
We are convinced in this criminal mis- CONVERSION statute, chief the definition of the word In Count III of its com amended “school” is not enough broad include plaint, Right alleges Reason that defendant University of Notre Dame. Silva: strictly Criminal statutes con are knowingly intentionally exerted control strued; “they enlarged beyond property over in a Plaintiff manner and meaning the fair language used.” extent other than that to which Plaintiff (Ind. State, Pridgeon v. 569 N.E.2d consented, taking dispos- had to wit: and Ct.App.1991). meaning The fair 2,000 the word ing approximately copies Right encompass “school” does not a college or Reason from distribution stands at various Cain, university. See Lawrence v. 144 Ind. locations at the of Notre Dame. actually relinquished Reason grounded in our crimi- is R. This states, journals by placing them in distribu- per- student “[a] which nal conversion also tion stands. We are convinced that knowingly or exerts son to abandon the stu- Reason intended property over anoth- unauthorized control for, journals journals, by making the dent conversion, a person criminal er commits freely public, Right available to the § 35-43- A misdemeanor.” Ind.Code Class displayed conduct inconsistent with inten- person’s over 4-3. control “[A] ownership tion to maintain of them. if it is exert- person ‘unauthorized’ its Once Reason abandoned student ... or to an extent other ed in a manner them, journals, longer it no owned it had the other has than that to which And no claim them. because student 35-43-4-l(b)(2). consented!.]” journals by Right had been abandoned Rea- statute, a As is true of the criminal mischief them, disposed son when Silva took criminal conversion civil action under the nothing Silva did inconsistent Section permitted statute is Indiana Code journals, property rights Reason’s 34—4-30-1. rights. Right no such had its Because it abandoned student state a re- Reason has therefore failed to disposed took and before Silva claim our dressable under criminal conver- them, has Right Reason failed state properly sion The trial court dis- statute. *5 criminal claim under our conver redressable missed Count III of Reason’s amended sion “Abandonment has been de statute. complaint. property relinquishment fined to as entitled, purpose is with no which a LIABILITY FOR VIOLATION CIVIL it, again claiming concern and without as OF RIGHTS CIVIL subsequently possession....” take may II In Count of its amended com 420, 423-24, Benson, Ind.App. 90 v. Schaffner alleges “in plaint, Right that Silva 881, (1929). N.E. 883 “To constitute an 166 tentionally knowingly pub or to the denied property, must be a abandonment there Reason, right lishers of because of [sic] abandon and concurrence of the intention to viewpoints Roman Catholic ex orthodox 424, relinquishment.” at 166 an actual Id. Reason, pressed equal full and prop “An to abandon N.E. at 883. intention La publication use of distribution stands at erty may be as a fact from the ... inferred 8. Rea Fortüne Student R. Center.” circumstances, it can surrounding grounds son this in a criminal stat ute, clearly by shown acts conduct inconsis which states: any continue tent with intention to retain and knowingly or person who color, property-” 1 ownership person, or use because denies (1985) (footnote race, creed, origin, disability, § 5 national reli- Abandonment C.J.S. sex, omitted). gion, equal full and use of the or “Abandonment divests facilities, services, goods in: ownership, his as to bar him the owner of so (1) he, that caters or of- Except that like an establishment from further claim to it. services, facilities, goods else, fers its may anyone appropriate it once it is general public; or already approp if it has not been abandoned (2) housing project v. owned subsi- by Lang riated Schuler a someone else.” by entity; don, 841, governmental a (Ind.Ct.App. n. dized N.E.2d 842 1 433 1982). violation, B rights a Class commits a civil misdemeanor. placed journals in its student 35-46-2-1. distribution stands located Dame. legislature explic- These student has not note that the We take, under this anyone itly a civil action provided “were made available to with- argues Reason nevertheless 13. are convinced statute.1 out limitation.” R. We 35-42-3-4, 35-42-3-3, 34-4-30-1, a IC or IC 35-45-9....” Section IC 1. Under Indiana Code civil 35-43, only IC exist for "violation of action permit determination, legislature this necessity intended to en- to delve into through issues, of this a civil forcement statute ac- involving other those especially Con tion. law, negated. stitutional is As a matter of jurisprudence, we do decide constitution prem a civil “When tort action al a issues when case can be on other decided imposed duty of a ised grounds. Beverly Bag Town v. Shores question the initial to be determined nall, (Ind.1992). 1059, 1063 Thus, 590 N.E.2d in ques is whether the statute respectfully I concur in result. private right tion a confers action.” Borne County Corp., v. N.W. Allen School 1196, 1203(Ind.Ct.App.1989).
N.E.2d “[T]he
determination of whether a civil cause of of a
action exists for the violation criminal begins legisla statute examination of intent_” THOMAS, Appellant-Defendant, County Derrick tive Bartholomew Bev Co., Inc., erage Beverage Corp., Inc. v. Barco v. 353, (Ind.Ct.App.1988). 524 N.E.2d Indiana, Appellee-Plaintiff. STATE of view, legislature In our did not intend No. 34A05-9708-CR-362. that Indiana Section Code 35-46-2-1 would through be enforced cause of ac- Appeals Court Indiana. statute, by tion. This making civil 10, March misdemeanor, imposes violation Class B penalty. criminal We refuse hold that penalty, liability, may
other such as civil exist under this statute. See Coons v. Coons
Kaiser, 567 N.E.2d (Ind.Ct.App.
1991) (quoting Passenger National R.R. *6 Corp. v. National Ass’n Passengers, R.R. 453, 459, 690, 693-94, U.S. S.Ct. (1974)) that, (noting legis-
L.Ed.2d “when expressly provides particular
lation remedy remedies, expand courts should not
coverage of the statute to subsume other
remedies. When a statute limits a thing to particular mode, in a
be done it includes the mode.’”).
negative any other Because
Indiana Code Section 35-46-2-1 not be action, through
enforced cause properly
the trial court Count II of dismissed complaint. Reason’s amended
Affirmed. C.J.,
SHARPNACK, , concurs.
BAILEY, J., concurs in result
opinion.
BAILEY, Judge, concurring in result. agree placing
I that in the student
in' distribution making stands and them avail- limitation, public
able to the without journals. said In “abandoned” so
doing, relinquished proper- all
ty journals thereby giving up all Having claims them. made