GARRARD, Judge.
The appellants, husband and wife (Slush-ers) 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 [99]*99a 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 § 17.3 at 189 (1977); Restatement (Second) of Torts § 360 at 250 (1965); Prosser, Law of Torts (4th Ed. 1971) § 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, § 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 § 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.
[100]*100In 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 No-vick was only a tenant at sufferance, they did not have a duty to make the premises safe for Novick’s visitors. As stated in § 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-l(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 Hall2 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 ....
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GARRARD, Judge.
The appellants, husband and wife (Slush-ers) 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 [99]*99a 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 § 17.3 at 189 (1977); Restatement (Second) of Torts § 360 at 250 (1965); Prosser, Law of Torts (4th Ed. 1971) § 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, § 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 § 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.
[100]*100In 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 No-vick was only a tenant at sufferance, they did not have a duty to make the premises safe for Novick’s visitors. As stated in § 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-l(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 Hall2 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 “in[101]*101volves 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 unreasonably increasing the risk of the occurrence of a proscribed harm.” (emphasis added) (West’s Anno.Ind.Code, Annotation to IC 35-41-2-2, p. 117.) We suggest that the commission erred in this purported contrast. The civil standard for negligence does not preclude actual knowledge of the risk of harm to another posed by the actor’s conduct. It merely precludes his exoneration based upon a lack of actual knowledge so long as a reasonable man in the same or similar circumstances would have realized the risk.4
Some insight, or application, may be provided by the Model Penal Code after which our act was patterned. In defining “reckless” Section 2.02(2)(c) states:
“The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”
American Law Institute, Model Penal Code (Official Draft 1962).
At least it is clear from the commission’s comments that they did not intend to impose criminal responsibility for merely negligent conduct. The crucial element is the quality of the actor’s conduct, i.e., that it be reckless. This poses an additional problem for the courtroom in the context of the present situation for we are concerned not with action but inaction. How does one establish beyond reasonable doubt the quality of a defendant’s failure or omission to act?5
As the final prelude to considering the facts at hand we must consider the specific statute under which the Slushers were prosecuted. Prior to enactment of the new criminal code Indiana did not have a general reckless homicide offense. The motor vehicle act, however, established an offense of reckless homicide. IC 9-4-1-54 (amended 1978). Under that provision:
“Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide.”
In contrast to the language of that act, the present statute, IC 35-42-1-5, directly states:
“A person who recklessly kills another human being commits reckless homicide, a Class C felony.”
“Kills” is a transitive verb requiring an object. It normally denotes action. This statute is therefore of no aid in defining the quality of an omission necessary to criminal punishment.
It appears to us that the general requirement of “voluntariness” and the “conscious” and “substantial deviation” requirements of recklessness were intended to implement the commission’s express intention to avoid criminalizing negligence.
In considering such problems, our courts have long held that a statute which forbids [102]*102the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the due process requirements of the fourteenth amendment. Grayned v. City of Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222; Baggett v. Bullitt (1964), 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95; Grody v. State (1972), 257 Ind. 651, 278 N.E.2d 280; Griffin v. State (1976), 171 Ind.App. 543, 357 N.E.2d 917 (transfer denied). In addition, as the court pointed out in Waliman v. State (1981), Ind.App., 419 N.E.2d 1346 (rehearing denied), even a statute which is plain and unambiguous on its face may violate due process when it is applied to a specific situation. See also United States v. Spector (1952), 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863.
In Grayned v. City of Rockford (1972), 408 U.S. 104, 108-9, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, quoted by Judge Ratliff in Waliman, the Supreme Court explained the two general reasons for the rule:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
As we have already noted, the rear stairs and landings of this apartment building were in an observable state of disrepair and both tenants and governmental inspectors had warned the Slushers and/or complained about their state. On the other hand the record is equally clear that (1) no one ever specifically complained about the porch railing, (2) while the inspector had the power and authority to condemn the porches and stairs as unsafe, he did not do so until after Ms. Olsen’s death, and (3) despite her knowledge and complaints about the porch and stairs the tenant, Ms. Novick, did nothing to prevent use of the porch or to warn her guests that it was in any manner unsafe or dangerous.
In order to sustain the conviction we must find first that killing a person includes an omission to act which causally results in death. We must then find the conduct was voluntary. Having passed these requirements we must determine that the conduct of omission was reckless and not merely negligent. The statutory mandate for accomplishing that purpose is the determination that the Slushers’ failure to act was both a conscious disregard of the harm that might result and that the disregard involved a substantial deviation from “acceptable standards” of conduct.
We believe that, at least under the facts and circumstances of this case, reasonable men would necessarily guess at the meaning of that standard as it applies to omissions to act, and that they would differ as to its application. It follows that the convictions should not be permitted to stand as they were had in contravention of the defendants’ guarantees to due process of law.
The convictions are therefore reversed.
HOFFMAN, P. J., concurs.
STATON, J., dissents and files separate opinion.