*1 that the stated funds were intended to be a the survivor or joint use accounts want Here, remaining signators. the other no such gift to have all balances survivors expressly further com- made either on the death. The Commission intent was Therefore, 32-4-1.5 that the the father. signature mented under Ind.Code card or qualify not as a joint bank account does we judgment hold that the the trial court the donor does gift common law because was correct. dominion. surrender Judgment affirmed. The evidence shows that the father joint
was the sole of funds in the depositor ROBERTSON, J., RATLIFF, J.,P. signature By account. the words concur. itself, joint in the deposited card all funds joint property.” account shall be “our As held, Clausen,
the court in “if joint owners he could not
withdrawing money without her knowl joint her her
edge or consent divest
ownership.”
It is clear from the son’s own testi
mony setting up that his father’s intent in joint “gift” account was not to son, permit
funds to his but rather to his Slusher, Marietta SLUSHER Frank should son to withdraw funds for the father Defendants-Appellants, with personally be become ill and unable to money draw the himself. There is no other evidence of a differ convincing “clear and Indiana, Plaintiff-Appellee. STATE intent,” so, under Ind. provided ent No. 3-381A84. 32-4-1.5-3(a), the whole amount of Code belong to the joint the funds in the account Indiana, Appeals Court signature card signing father. The District. Third by the father and the son does not show gift very language intent make a 30, 1982. June of the card itself. To make a valid inter 18, 1982. Aug. Rehearing Denied both an intention gift vivos there must be the donor of all give stripping and a given thing, dominion or over the control must be irrevocable. change
and a of title Kraus, (1956)
Kraus v.
N.E.2d 608. testimony
We cannot infer from the other evidence that the father’s intent strip
was to himself of all control of irrevocably transfer title to
funds and Quite contrary, his son.
account to court’s directly supports
evidence trial amount of the funds
finding that the total joint prod-
in the “were the savings account Rogers
uct of R. the labors of Frank [the be re- money should that said
father] ” case is turned to him . ... The Moore distinguishable the case at bar
easily signature explicitly card therein *2 Svetanoff, Tetek, N.
Bernard M. Gerald Conover, Valparaiso, for Gary, William G. defendants-appellants. Pearson, Gen., Atty. Thomas D.
Linley E. Gen., Atty. Indianapolis, Quigley, Deputy plaintiff-appellee. GARRARD, Judge. (Slush- husband and wife appellants,
ers)
were the owners of an
Despite complaints
warnings
house.
condition
about
deteriorated
which constituted the
.landings
stairs and
apartments,
to the
did
rear access
Slushers
replace
or
nothing
repair
substantial
they
landings although
stairs and
indicated
they
planning
were
to install a metal unit.
guest
May
while a social
On
tenants, Laureen
one of the third floor
Ol-
porch
rear
sen went out
against
apartment. When she leaned
gave
she fell
to the
railing
way
below. A
later she died from
ground
week
injuries sustained in the fall.
in-
Upon these events the
Slushers
and convicted of reckless homicide.
dicted
challenge the sufficien-
appeal
On
of both the indictment and the evidence.
cy
the evi
argument challenging
Their
whether the
question
addresses the
dence
had a com
evidence established
duty
the deceased which could
mon law
for crimi
necessary predicate
as the
serve
agree
We
with the
liability.1
state
nal
that,
perform
(a)
part
contractual
provides
act.”
-2-1
35 41
“[A]
present
case there
perform
that in the
an act commits
It is conceded
who omits to
duty.
statutory
statutory,
only
or contractual
common
was no
an offense
if he has a
directly
enters the land on a matter
con-
imposed upon the
a common law
with the business of the lessor.
landlords.
nected
is, therefore,
expect
He
entitled to
to maintain in
had a
the lessor will exercise reasonable care to
stairways
safe condition
common
remedy any
condition which
discover
parts
building
other
used in common
acceptance
his
the lessee’s
makes
by tenants and over which the landlords
dangerous
license
to him.”
retained control. Rossow v. Jones
*3
(Second) of Torts
com-
Restatement
§
Tippeca-
also
Ind.App.,
ble standard of conduct considering the prelude final As the civil, liability purposes. opposed specific facts at hand we must consider part, say, went on to commission pros- which the Slushers statute under negligence “recklessness differs the new Prior to enactment of ecuted. completely in the latter actor gener- criminal not have a code Indiana did of his behav- dangerousness unaware of the The motor al reckless homicide offense. unreasonably it was although actually ior however, act, established an offense vehicle occurrence of a increasing the risk of the (amend- 9-4-1-54 of reckless homicide. added) proscribed (emphasis harm.” provision: 1978). ed Under that Anno.Ind.Code, (West’s Annotation to IC a vehicle with “Any person who drives 35-41-2-2, 117.) suggest p. We safety of others disregard reckless for the contrast. purported commission erred in this another the death of thereby causes *5 does not negligence The civil standard for the offense of guilty of person shall be knowledge actual risk preclude reckless homicide.” the actor’s con- posed by harm to another his exoneration merely precludes duct. It act, language of that In contrast to the knowledge so based a lack of actual 35-42-1-5, statute, directly present man in the same or long as a reasonable states: would have realized similar circumstances kills another recklessly “A who the risk.4 homicide, being commits reckless human pro- be application, may or insight, Some felony.” a Class C after which vided the Model Penal Code requiring verb is a transitive “Kills” “reck- defining In patterned. our act was This normally denotes action. object. It 2.02(2)(c) states: less” Section defining aid in is therefore of no statute and of such a nature “The risk must be necessary to criminal quality of an omission that, considering the nature and degree punishment. and the of the actor’s conduct purpose require- general appears It to us that him, disregard known to its circumstances the “conscious” “voluntariness” and ment of stan- deviation from the gross involves requirements deviation” “substantial law-abiding person dard of conduct that a implement intended to recklessness were would actor’s situation.” observe to avoid intention express the commission’s Institute, Model Penal Code American Law negligence. criminalizing (Official 1962). Draft our courts considering problems, such In At the commission’s least it is clear from which forbids that a statute long to im- have held they did not intend comments that done, merely suggest addition, it cannot be prior do not the code 5. We decided In cases proved beyond a requires employed that the law “knew or should have have under recklessness reasonable known” test for criminal doubt. See, Hardesty e.g., the motor vehicle statutes. 518, 510; (1967), 231 N.E.2d v. State 249 Ind. 1, (1954), 234 Ind. Shorter v. State 102 both doing vague governmental an act in terms so tenants and inspectors
men of
intelligence
common
must necessari-
had warned the
complained
Slushers and/or
ly guess at its meaning and differ as to its
about their state. On the other hand the
application
process
violates the due
require-
(1)
record is equally clear that
no one ever
ments of
fourteenth
amendment.
specifically complained
porch
about the
rail-
Grayned
(1972),
v.
of Rockford
City
408
(2)
ing,
while the inspector
power
had the
104,
2294,
222;
U.S.
92
33 L.Ed.2d
S.Ct.
and authority
porches
to condemn the
Baggett
(1964),
Bullitt
U.S.
unsafe,
stairs as
he did not do so until after
377;
S.Ct.
Sumpter
12 L.Ed.2d
death,
Ms.
(3) despite
Olsen’s
her
(1974),
95;
State
261 Ind.
knowledge
complaints
porch
about the
Grody
v. State
tenant,
Novick,
and stairs the
Ms.
did noth-
Griffin v.
State
ing
prevent
porch
use of the
or to warn
(transfer
trary and discriminatory enforcement prevented, be provide laws must ex- HOFFMAN, J.,P. concurs. plicit standards for those who apply them. A vague law impermissibly dele- STATON, J., dissents separate and files gates policy policemen, basic matters to opinion. judges, juries and for resolution on an ad STATON, Judge, dissenting. basis, hoc subjective with the attend- dangers ant arbitrary and discrimina- I dissent. The convictions should be af- tory application.” firmed. noted,
As we already have the rear stairs The majority of this Court has taken a and landings of apartment building this challenge to the sufficiency of the evidence were in an observable state of disrepair and sustaining the convictions for Slushers’ an person into “A who another recklessly and turned kills reckless homicide homicide, men” think of being of what “reasonable reckless analysis human commits ” following words: felony.... a class C another person recklessly “A who kills “recklessly,” The term as it is used IC homicide, being human commits reckless 35—42-1-5, is defined in IC 35-41-2- felony.” a Class C 35-42-1-5 IC Ed., 2(c) (Burns Repl.), Code as fol- Ed., (amended (Burns Repl.) Code lows: 1980). person engages “A in conduct ‘reckless- analytical leads it majority’s approach The engages plain, ly’ if he the conduct 35-42- language to conclude that the of IC conscious, unjustifiable disregard of thereby “vague” 1-5 is unconstitutionally might disregard harm that result and the federally their depriving the Slushers of deviation from ac- involves substantial Predi- right secured to due of law. process standards conduct.” ceptable grounds decision on cating its constitutional under prosecuted the mer- only, majority has not decided theory they recklessly killed Olsen suffi- challenge its of the to the Slushers’ which Ol- permitting stairway their con- ciency sustaining of the evidence argument vagueness degree victions. The void for sen fell deteriorate to raised raised in the was neither at trial nor a hazard to human life. constituted appellate brief. Slushers’ conscious, disregard unjustifiable plain, might resulted from of the harm that have constitutional- Underlying majority’s condition, re- dangerous dis- the Slushers ly-predicated cacophonic decision is a “criminalizing negligence.” course about refused to and maintain peatedly repair ex- majority goes lengths great acceptable stairway in accordance with “this kind press grave its consternation for As a standards. result of prosecution.” of its conster- Reflective stairway, repair and failure to maintain nation is the following observation: railing at- fell to her death when a “We are concerned that our citizens the stair- porch to the third tached floor subjected prosecution convic- way collapsed. offense, felony especially tion of a most lia- sought criminal impose The State homicide, for a is mere- conduct which omission upon the Slushers for their bility ly negligent.” (Emphasis original.) act, repairing perform i.e., the act of citizenry, To assuage its concern for the maintaining support To stairway. vague- majority grasped has the void relied prosecution, theory its the State and used ness doctrine of constitutional 1976, 35-41-2-l(a) (Burns Code convictions it to conclude that the Slushers’ Ed., Repl.), provides: which for reckless homicide cannot stand. Unfor- if only “A commits an offense divine tunately, in its zeal to majority, *7 in vio- voluntarily engages in conduct he citizens,” has cast good what for “our defining the offense. lation of the statute by the aside the criminal enacted statutes However, perform a who omits Legislature ignored Indiana and has only an if he has act commits offense County Lake factual determinations of a law, or contractual statutory, common jury. perform duty to the act.” The were with and con- charged Slushers omis- The asserted that the Slushers’ homicide committing victed of the reckless of a common sion constituted breach Olsen, falling of Laureen who died after upon a landlord to maintain duty imposed back of an stairway from a attached to the apartment of an entryways the common managed by apartment building owned and retains which landlord building over The stat- Slushers. reckless homicide The in a safe condition. Slushers’ ute, 35—42—1—5, control under which Slush- by that required act pertinent perform failure to provides ers were convicted concluded, re- duty, common law the State part: Novick’s son suited in the reckless homicide of fell through Olsen. a hole in one of State, The jury agreed with the and stairway landings, but he was not in- trial court Frank jured seriously. sentenced Slusher five Novick informed the years’ imprisonment incident, and Marietta Slusher Slushers and Frank Slusher years’ imprisonment. three responded by placing piece plywood plywood over the hole. The was neither appeal, deny On having Slushers glued nailed nor to the stairway but re- owed a statutory, Olsen common mained loose over the hole. Novick filed contractual stairway to maintain the complaints other regard- with the Slushers in a safe condition because she was at the ing various apartment, defects in the such time of merely guest her fall a social as the during absence of heat February and tenant who the have as Slushers classified March, inoperative facilities, bathroom “tenant at As the sufferance.” light switch in her children’s room that argument, they state their “If owed emitted smoke when used. None of these decedent no such then no crime duty, could Slushers, defects were repaired by the so have been committed.” An evaluation of Novick paying discontinued rent. argument merit of the re- quires a recital of the evidence adduced at The complaints Slushers received other trial. about stairway condition of the back before Olsen’s fall. Four former tenants of The record evening reveals that on the apartment building testified Olsen, May Novick, Laureen Stella lodged complaints with the Salimoni, Slushers about Anthony Montano, Michael apartment numerous defects in the Novick’s four build- gathered children in Novick’s ing, including apartment stairway. the condition of the to celebrate Olsen’s 21st birth- The day. dinner, Olsen, Novick, former tenants described the stairway After and the “extremely hazardous,” others congregated having on the back “weak porch of spots,” Novick’s apartment get being third floor in “bad condition.” some One fresh porch part air. The former stairway of an out- tenant stated that the be- door stairway gan to which Novick and other year deteriorate in one after tenants in apartment building had ac- purchased apartment Olsen, cess. standing porch, While on the building. The former tenants related sev- weighed who was 5'6" and approximately eral “close calls” they trying had while pounds, one hundred her placed hands on negotiate the stairway. One former tenant the porch railing. railing collapsed, invited his employer, who owned and man- plunged three aged stories onto a con- apartment buildings, to examine the crete slab apartment located behind the condition apartment. of the tenant’s While building. Olsen sustained a skull fracture the employer was descending the back stair- injuries other from the fall. One week way, his foot went through one of the stair- fall, after her injuries Olsen died from those way landings. response to the tenants’ and resultant complications. complaints, promised the Slushers to erect a stairway, steel promise but that remained apartment Novick rented the on January long unfulfilled for a time.1 Slushers, from the who owned and managed the multi-unit building complaints Slushers also received located at 6007-6009 Hohman Avenue in about the condition of the build- Hammond, Indiana. The ing Slushers fixed stairway and its municipal various Novick’s rent at per month. agencies. $250.00 Soon agency complaints Some *8 moving after into apartment, Novick made as far back as 1976 and involved complained to the Slushers about the condi- building defects in the stairway. The com- tion of stairway. April the back In City missioner of the of Hammond sent the transcript sentencing hearing sentencing, 1. The of the their September re- which occurred on began veals that the Slushers the erection of a stairway approximately steel two weeks before erected a previously, noted the Slushers November a letter dated Slushers stairway September of 1980. 18) stated: steel (State’s Exhibit No. that this office have come into “Complaints investigated who police officers porch in the rear large stairway hole regarding the described the scene of Olsen’s fall at 6009 Hoh- your apartment and in landing “bad, rickety, unlighted,” “shaky,” as Avenue, man Hammond. and upper condition.” The “very rotten porch floor from railings of the third immediately and lower repairs make “Kindly by the in- wish, fell were collected which Olsen may you further information any subjected to labora- officers and vestigating this office.” please contact ex- physical and analysis. A chemist tory from representatives January On Indiana Crimi- the Northwest aminer from prevention fire bu- department, the health conducted a mi- Laboratory Toxicology nal reau, City of the building commission taken particles croscopic examination joint inspection of Hammond conducted a they that railings and determined from the building in re- of the Slushers’ were consistency” and “flaky were of from its ten- sponse complaints to several were admit- railings rotted.” “partly building com- Burgess, ants. William Nos. 29A (State Exhibits ted as evidence missioner, stairway behind inspected the 29B). concluded that Novick’s Bur- “completely unsafe.” stairway was qualified who Spitale, carpenter Sam the ab- his conclusion gess predicated carpentry due in the field of expert an the extensive railings sence of several building and in experience in his extensive were wood. The rotting of the Slushers stairways, wooden teaching how to build January dated registered sent a letter of the rail- examination made an in-court (State’s 19), Burgess No. Exhibit “rotted they were concluded that ings and thirty days had informing they them that are.” supports where the main at the ends letter stairway. The repair the defective railings were com- that the Spitale testified stated, inter alia: redwood, have re- which would posed of captioned “Your at the above neglect to evolve long period of quired a January was on inspected address that He concluded a rotten condition. into Stahura, George at which time Mr. to have much stress it would not have taken Leo Department, Captain Health Sartor- collapse “[bjecause railings to caused the is, the fol- Inspection, Fire and I noted in the holding power absolutely no there’s lowing conditions: fell nails, rotted that it the board is so it came down.” off the board as landings are haz- “1. The rear stairs and to sub- ardous to life and limb due have not chal- appeal, On ”. standard conditions.. . ad- the evidence sufficiency of lenged the third letter, as- to establish duced at trial response to the stairway porch railings of the raze the old floor Burgess they sured would have the Slush- condition. Nor stairway in its a defective stairway and erect steel ample had they fact that disputed the However, which ers place. May on condition fall, the defective Burgess notice of was two weeks after Olsen’s Rather, contend the Slushers apart- stairway. inspection conducted another duty to no common to be owed stairway building ment and found in a safe stairway maintain the in which it disrepair in the same state of com- condition, the existence and that Finally, on January had been on impo- to the prerequisite is a notice of mon law Burgess sent a April 35^41- under IC liability sition of criminal The notice condemnation to the Slushers. act. perform 2-l(a) for the omission (State’s 1) Exhibit No. informed Slush- duty to owed Olsen and Whether the Slushers stairway ers that the was condemned in a safe condition premises to be va- maintain the apartment building that the was exam- must be resolved As a matter that stairway replaced. cated until *9 106 him,
ining
subject
the basic tenets of Indiana
is
landlord-
to liability to his tenant
tenant
law.
lawfully upon
and others
prop-
the leased
erty with the
consent of
tenant or a
statute,
covenant,
In the absence of
subtenant for physical
by
harm caused
fraud,
concealment,
gives
or
a landlord who
dangerous
part
condition
of the
possession
tenant full control and
property
leased
retained in the landlord’s
property
per
leased
will not be
for
liable
control, if the
by
landlord
the exercise of
injuries
by
sonal
sustained
the tenant and
reasonable care could have:
other persons lawfully upon the leased
“(1) discovered the condition and the
property,
injuries
even if those
are caused
therein;
unreasonable
risk involved
by a defect in the condition of the leased
Co.,
property. Great Atlantic & Pacific Tea
“(2) made the condition safe.”
(1980),
Inc. v. Wilson
Ind.App., 408 N.E.2d
144, 147;
(1971),
Hunter
Cook
149 Ind.
(Second)
Property (Land-
Restatement
657, 660-61,
552;
App.
Tenant)
17.3,
lord
(1977);
&
at 189
see
§
Rene’s
Corp.
Corp.
Restaurant
v. Fro-Du-Co
also,
(Second)
Restatement
of Torts §
(1965),
Ind.App.
137
210
(1965); Prosser,
N.E.2d
at 250
Law of Torts §
385, 387.
immunizing
(4th
The rationale for
1971); Harper
James,
at 405-08
ed.
2
&
liability
27:17,
landlord from
is that a
(1956
lease consti The Law of Torts
at 1516-18
§
tutes a conveyance of property
Supp.);
Tiffany,
that termi & 1968
1
The Law of Real
Property
(3d
nates the landlord’s control of the
at 169-73
ed.
property,
§
1939 &
Schoshinski,
and tort
liability may
Supp.);
supra,
4:4,
imposed
for
§
(1980).
190-94
beyond
conditions
rationale for this well-
landlord’s control.
Schoshinski,
accepted
succinctly
American
rule was stated
in a
Law of Landlord
4:1,
leading article
(1980). However,
expansive
and Tenant
on the
trend
§
premises liability
this
in
ancient rule of caveat
landlord-tenant
law:
lessee has been
subjected
exceptions
to several
jur
in most
“The
repair premises
reserved
isdictions, including
Schoshinski,
Indiana.
for common use
placed upon
the land-
supra,
4:2, at 188. This Court analyzed
§
for
pragmatic
lord
both
and policy rea-
one of those exceptions in Rossow v. Jones
Practically,
sons.
if it were left to the
Ind.App., 404 N.E.2d
areas,
which it
repair
tenants to
these
would
was held that a landlord
has a
have difficulty determining whether re-
maintain in a safe condition the common
needed,
so,
pairs were
and if
who should
entryways and other parts
of an
make them
how
the cost should be
building
used in common
tenants over
policy standpoint,
allocated. From a
which the landlord has retained control.
place
also makes sense to
responsibili-
Rossow,
14;
also,
landlord,
N.E.2d at
see
ty on the
apt
since he is more
Tippecanoe Loan & Trust Co. v. Jester
have both the incentive and the financial
357, 101
915;
N.E.
Coleman
ability
repairs. Moreover,
to make
this is
DeMoss
legal
precedent:
consistent with
since the
LaPlante v. LaZear
areas,
landlord is in control of these
he is
lnd.App.
property and retains in his own control
A landlord’s
maintain common
any
part
other
the tenant
is entitled to
areas in a safe condition
extends
business
appurtenant
use as
tenant,
part
leased to
visitors and social
*10
her fall to that of a “licensee” on
day
the
of a landlord to
the
and liabilities
duties
As
person.
of a ten-
owned
another
property
business visitors and social
which the land-
such,
ant are the same as those
tenant at suffer-
Novick’s status as a
Town of Kirklin
operat-
lord owes to the tenant.
status as a licensee
ance and Olsen’s
683, 689, 28
Everman
217 Ind.
the landlord’s
deprive
Olsen of
ed
grounds,
on other
modified
safe condition.
common areas in a
maintain
206. Professor
217 Ind.
argu-
understanding of
An
duty to maintain
Prosser observed that the
the facts on
a recitation of
requires
ment
the landlord’s
common areas retained under
rely.
which the Slushers
“extends also to
control in a safe condition
3, 1979, the
rented
January
Slushers
On
family,
employ-
his
members
the tenant’s
per
to Novick for
apartment
$250.00
ees,
invitees,
and others on
guests,
his
his
of the term
The intended duration
month.
tenant,
since
right
the land in the
have been
appear
does not
of the lease
their
is a
of the normal use of
presence
part
21,1979,
March
before
specified. Sometime
premises
for which the lessor holds
rent because
paying
Novick discontinued
Prosser,
omitted)
open.” (footnotes
them
stairway, the ab-
believed the defective
she
justification
at 406. The
for
§
March,
during February and
sence of heat
per-
extending
the landlord’s
to third
facilities,
inoperative bathroom
upon
sons
leased
was
lawfully
switch,
defects
electrical
and other
faulty
American Law
persuasively by
stated
uninhabitable. On
apartment
rendered the
Institute:
22,1979,
Slushers,
in Mrs.
March 21 and
“If the
entitle the
terms of the lease
name,
ejectment pro-
instituted
Slusher’s
permit
persons
lessee to
third
to come
against
ceedings
County
in the Lake
Court
of the land retained within
part
tenants, who also refused
Novick and other
control,
the lessor’s
is immaterial
failure
light
rent in
of the Slushers’
pay
whether
come as invitees of the les-
that existed in
repair
numerous defects
It is
see or as his licensees.
the lessor’s
building.
May
On
business,
such,
to afford his lessee fa-
ejectment action
hearing
the court
persons
for
whom he
receiving
cilities
all
following
made the
order
against Novick
any legitimate pur-
chooses to admit for
entry:
book
who,
Therefore,
pose.
as be-
is enti-
plaintiff
“The court finds that the
lessee,
tween himself and the
licensee
immediate
of said
possession
tled to the
directly
enters
a matter
con-
the land on
agrees to vol-
premises. The defendant
of the lessor.
nected with
business
premises May
on
untarily vacate said
is, therefore,
expect
He
entitled
leave to
grants
The court further
will
reasonable care to
the lessor
exercise
to file an amended Notice
plaintiff
which
remedy any
discover and
condition
damages, if she so chooses.
Claim
makes his
of the lessee’s
acceptance
hearing
continues the
The court therefore
him.”
dangerous
license
IT
plaintiff’s
damages.
on
claim for
IS
(Second) of Torts
com-
Restatement
§
CONSIDERED, AD-
THEREFORE
I,
(1965).
ment
by the court
AND DECREED
JUDGED
appellate
in their
stating
While not
so
posses-
plaintiff
that the
have immediate
brief,
conceding
appear to be
the Slushers
6007 Hohman
premises
sion of the
guest
that a landlord owes a social
Indiana,
Avenue, Hammond,
but
to maintain common areas
tenant the
eject-
an order
stays
court
issuance of
However, the
in a safe condition.
Slushers
voluntarily
pending
ment
the defendant
fall,
day
that on the
of Olsen’s
contend
May
on
vacating
premises
said
at sufferance” in the
Novick was a “tenant
1979....”
she
apartment building and that Olsen and
un-
claim for
hearing
The
on the Slushers’
nor-
rights
to all of the
entitled
continued,
May
and on
paid
rent
to a bona fide tenant.
mally afforded
judgment
on
the court entered
analogize
legal
$500.00
status
Olsen’s
unpaid
lawfully
Novick’s
but occupies
it after the termina
in favor
rent.
person’s
tion of that
interest.
Coomler
Hefner
110-11. The
day
Novick was to have vacat-
before
tenancy
creation of a
at sufferance need
ed her
accordance with the
*11
preceeded by
not be
the existence of a valid
Novick discovered
voluntary agreement,
apartment
possessor
into which she was to
lease between the
and the owner
that
going
be available.
have moved was
Jump
Pilgrim Proper
v.
property.
apartment
The tenant of
decided
(1947),
ties
118
75 N.E.2d
against moving to Texas and intended to
When a
been in
valid lease has
in
reserved for
apartment
remain
No-
existence,
tenancy
a
at sufferance arises
Novick,
informing
vick.
after
Mrs. Slusher
tenant,
only when the
who at one time
apartment by
that she could not vacate the
lawfully possessed
property,
the leased
con
5th,
May
apartment
asked to remain in the
possession
right
tinues in
after the tenant’s
her
until she and
children could
temporarily
possession
has been terminated. Coom
place
find another
Mrs.
live.
Slusher
ler, supra,
evicted Novick and her children from the distinguished 880. A licensee is to be apartment building. invitee, property from an who enters the of express implied another at the or invitation facts, Based on these the Slushers con- (or of the landowner occupier) either tend that Novick was a tenant at suffer- transact business with landowner or to ance on day of Olsen’s fall and that advantage Indiana act for the mutual commercial of landlord-tenant law would treat a tenant at sufferance and her social and the At- landowner invitee. Great licensees, whom, as prop- under Indiana Co., Wilson, lantic & Pacific Tea Inc. v. erty duty a landowner owes no 147; Barbre, supra, supra, 408 N.E.2d at property maintain the in a safe condition. 1146; Mullins, 400 supra, N.E.2d at survey A brief law will applicable facili- legal N.E.2d at 1181. The classification of argu- tate an evaluation of the Slushers' person entering property another ment. paramount importance in Indiana since tenancy legal person
A
at
sufferance arises when a
status
determines
possession
property
comes into
the extent of the duty of care the landown-
person,
agreement
Rogler (1979),
2. A recent case indicates that a
after
for rent. Wallace v.
entering
possessing property
prospec
Ind.App.,
as a
Wallace does
purchaser
appear
Supreme
tive
preexisting
rather than as a tenant to a
not
holding
to contravene the
Court’s
posses
lease,
will be
to be
deemed
a tenant
in Coomler that the consensual
possession
formerly
if
sufferance
is retained with the
sion of
leased
the tenant
permission
tenancy
arising.
prevents
of the landowner but without an
from
at sufferance
may
personal
landowner
held liable for
A
er
landowner owes
person.3
owes to that
proper
to maintain the
to an invitee
injuries
sustained
a licensee:
Ham
ty
reasonably
safe condition.
test,
“(1)
applied
positive act
mond
262 Ind.
86-
Allegretti
v.
Woodruff,
Bowen,
Administratrix
824-25;
Great Atlantic
N.E.2d
1113;
Ind.
34 N.E.
[136
431]
Co.,
Wilson, supra,
& Pacific Tea
Inc.
“(2)
the wilful
wanton misconduct
146-47; Mullins, supra,
test,
Lingenfelter
forth in
v. Bal-
set
a land
N.E.2d at 1181. The
owed
timore, etc.,
R. Co.
from
extensively
owner
differs
to a licensee
49, N.E.
The landowner
that owed to an invitee.
owes
licensee to maintain the
no
to a
“(3) the
control
entrapment-affirmative
condition, and the land
property in a safe
test, arising
the instrument
*12
personal inju
for
liability
owner incurs no
(1962),
language in Pier v. Schultz
as a
ries
a licensee
result
sustained
200,
255.”
243
182 N.E.2d
Ind.
Barbre,
defect
400
property.
supra,
in the
Doctor,
Wayne
Fort
National Bank v.
su
1146;
(1979),
v.
N.E.2d at
Xa ver
Blazak
374-75,
149
at
272 N.E.2d at
pra,
Ind.App.
655;
653,
Mullins, su
Ind.App., 391 N.E.2d
882;
also,
ver, supra,
see
391 N.E.2d at
Xa
1181;
pra,
Wayne
at
Fort
Na
376 N.E.2d
Petrol,
(1974),
Ind.
v.
Inc.
160
Surratt
Doctor, supra,
Ind.App.
tional
149
Bank v.
498,
453,
(on
499,
peti
N.E.2d
454
App.
316
371,
A presumption
at
HI Slushers, discovering after duty to maintain sen a law common condition, that failed a safe condition and existence of stairway in The evidence duty. care to make Slushers breached reasonable exercise overwhelmingly at trial established adduced the area safe. jury the breach found that (1) stairway to the the back attached duty to maintain the Slushers’ common law building was multi-unit was done stairway a safe condition area over which the common manner. have not reckless The Slushers control; retained the evidence challenged sufficiency (2) was an area that stairway the back recklessness, the element of but supporting en- and her social Novick the factual the record nevertheless sustains appurtenant to the titled to use as to per- failed conclusion that property; leased conscious, and plain, form the act “in un-
(3)
within
area
lawfully
Olsen was
might
of harm that
justifiable
disregard
consent;
with Novick’s
disregard
in-
[have]
resulted]
from
deviation
ac-
a substantial
(4)
dangerous
posing
condition
an un-
volve^]
area,
of conduct.”4
35-
ceptable
existed in the
standards
reasonable
risk
wanton” misconduct. As
dissenting opinion,
reckless homicide also
less conduct within the
pra,
licensee for
landowner’s
to
This Court stated:
duct
See,
onstrate that wilful and wanton misconduct
may
omission of
McClure
Swinney
It
show ‘willful or wanton’ misconduct
cinctly
875,
difference to
was conscious of his conduct and
knowledge
fer
Ind.App.,
App.,
App.,
and
could
“wanton”
(emphasis
(transfer
“See also: Brueckner v. Jones
omitted some
1943,
*14
encompass
consequences
“ ‘
“ ‘ “
common
concept
283 N.E.2d
Fort
as understood in Indiana
consist of “conscious
denied); Schwing
[*]
arguable
intentionally
at
“The rule as to
255 N.E.2d
221
probably
258 N.E.2d
‘To hold one
5^
v. Roler
page
stated
v. Austin
Wayne
5(5 SjC
denied);
Ind.App.
conduct,
264 N.E.2d
“wilful and wanton” misconduct.
Ind.
added)
personal
of “wilful
of
duty
law
** 1
the Slushers’ failure to
878,
that one
consequences,
duty
existing
in Bedwell v.
National
600,
result,
....
with reckless indifference
duty
a landowner is liable
as follows:
did
374-75,
Mazza v.
785-86. Other cases
which
it
”
injuries
at
engages in “wilful and
must
20 Ind.Dec. 315
guilty
statutory
some
what
who
they
conditions that
and
See,
page
v. McKibbin
21 Ind.Dec. 313.’””
noted
Bank
produced
152
Ind.App.
wanton” miscon-
be
with
Kelly
engages
civil
Kirsch v. Harker
owed to Olsen.
wrongful
is
24 Ind.Dec. 35
of
caused
607,
he
intentional
DeBolt,
shown that
N.E.2d at 882.
earlier
Ind.App.
necessary
definition
(1970),
“wilful”
reckless
consciously
Doctor,
(1970),
50 N.E.2d
924, 926;
in reck-
perform
appears
in this
is suc-
(1970),
(trans
act or
supra,
injury
dem
to a
inju-
with
Ind.
Ind.
su-
.. .
in
he
or
to
would therefore include
tonly
498;
346-47
438,
misconduct
Cases
firming
wilful
landowners could be
act
afforded
nevertheless breached
and wanton” misconduct
omission
This Court has stated that
condition as
Xaver,
omissions
appears
906,
Board of
586-87,
tive, affirmative,
landowner’s omission
to a landowner’s
rely upon
Olsen
S.Ct.
sees
supra,
wealth
cordance with a
liability may
ty
175 S.E.2d
Trend
Godin
passive
of Kalamazoo
proposition
required by
Ind.App.
444,
289 N.E.2d
require
Hessler v. Cole
2263,
injuring
and
from other
Mills,
and
(1977),
Edison Co.
[16
their
that
259
have refrained
County
cert. denied
wanton misconduct.
in
this basis
Hessler, supra, specifically
conduct
entitled
Ill.Dec.
provides
56 L.Ed.2d
Inc.
111, 113; Sprague v. Common
required
maintain the
the landowner
licensee,
be
dealing
N.W.2d
convictions,
391 N.E.2d
374 Mass.
her. The definition
that
imposed
Road Commissioners
legal
immunity
(1970),
204, 206;
Slushers’
jurisdictions
(1977), 77
only
for which
legal
620, 625],
(1978),
an omission
in
positive”
an
with
held liable for deliberate
Assuming arguendo
(1972), 7
the Slushers would have
206,
(1978),
duty
the Slushers’
resolving
to the
758];
alternate basis for af
121
Indiana
perform
at
duty
120, 129,
this
the three
licensees. While
for
stairway
duty they
may
wilful and wanton
59
Commonwealth
Ga.App.
wilfully
discussed above
436
liability may
375 N.E.2d
injuries
Mich.App.
Court
Summerville v.
may
rights normally
conduct before
clearly
the landowner.
lll.App.3d
engage
Ill.App.3d
Washington
to
be considered
Surrat,
common
an act in ac
their
U.S. 917
Washington,
at
371 N.E.2d
perform
exceptions
of “wilful
constitute
egregious
659,
does not
held that
owed to
to
support
appeal.
supra,
Coun
licen
wan
493,
law.
342,
902,
660,
“ac
safe
580,
not
[98
an
A
it
by
demnation
the community.
on
A reckless
41-2-2(c). The Slushers’ sole contention
legal
owed
no
appeal
was that
under
35^12-1-5
homicide conviction
contention has been
duty.
particular
35-41-2-l(a)
proper
This
when
and IC
this
rejected
majority
Court.
It is
(1)
owed the
the defendant
decedent
majority
on other
of this
grounds
statutory, common
or contractual
con-
Court refuses to affirm
act;
an
duty
perform
victions.
(2)
perform
the defendant
failed to
liability upon
imposition of criminal
act;
death caused
the defective
landlord
(3)
person’s
the other
death resulted from
building appears
condition of an
act;
of that
nonperformance
remedy
for the
extraordinary
be an
State
(4)
perform
the defendant
failed to
landlord-tenant
rela-
pursue. Ostensibly,
conscious,
unjustifia-
plain,
act in
regulatory
tions have been under
do-
might
disregard
ble
of the harm that
Moreover, a
main of civil law.5
landlord’s
disregard
have
and the
in-
resulted
passive
results
in a tenant’s
conduct
volved a substantial
deviation from
injury may not nec-
bodily
death or serious
acceptable standards
conduct.
indignation
essarily
public
command the
over traditional ma- No cases
impose
have
found that
crim-
been
outrage that arises
lum in se
crimes,
murder,
rape,
liability
such as
inal
for a landlord’s breach
pre-
common law
to maintain a common
robbery. These two facts should
invoking
building
clude the
the criminal
an
in a safe
area of
condition,
code
imposition
when the
warrants
criminal
but
situation
criminal
prosecution. Having
liability
enacted IC 35-41-2-
for an omission to act is no stran-
1(a),
legislature
statutory
ger
has created a
to criminal
law. An affirmative
framework which
the use of crimi-
permits
may
responsibil-
to act
bear with
criminal
nal
person’s
ity
nonperformance
sanctions when a
reckless fail-
of that act.
ure
perform
Supporting
an act calls for moral con-
his discussion of criminal liabili-
However,
(Court
imposed.
Appeals’
Ind.
wrests the legis- usurps reason
jury, and the latter to define statute prerogative
lature’s
that which is criminal conduct. disagree majority appears
The also responsible holding person criminally with “ ‘kills’ majority
for inaction. The states: object. It requiring
is a verb transitive Yet, this same
normally denotes action.” con- affirmed the defendant’s readily
Court failing Worthington, supra,
viction in legis- act law. required
act when 35-41-2-l(a)
lature’s directive the basis may failure to act form
clear—the
of a criminal conviction. ample contains evi- appeal
The record on law that
dence to establish as a matter of her social owed Novick and stairway to maintain of this majority
a safe condition. The existed, agrees
Court that such a but to affirm the nevertheless refuses Slush-
ers’ convictions for reckless homicide.
Rather, the reckless majority deems “vague.”
homicide statute to be The ma- seriously misinterprets the
jority’s decision
legislative criminal permits directive that act.
prosecution for an omission to factual determination that jury’s of Lau- recklessly caused death
reen should be affirmed. (Defendant ATKINS,
Leroy Appellant
Below), Indiana, Appellee
STATE Below). (Plaintiff
No. 1-182A11. Indiana, Appeals
Court of
First District.
June