Harold Wallace v. The Housing Authority of the City of Talladega

REL: April 14, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2022-2023

_________________________

2210486

_________________________

Harold Wallace

v.

The Housing Authority of the City of Talladega

Appeal from Talladega Circuit Court

(CV-18-900509)

EDWARDS, Judge.

Harold Wallace appeals from a summary judgment entered by the

Talladega Circuit Court ("the trial court") in favor of The Housing

Authority of the City of Talladega ("the Housing Authority") as to his

claims for alleged injuries that he suffered as a result of a fall while

descending the back-porch stairs to his apartment. Because we agree

2210486

with Wallace's argument that the trial court erred by not applying the

standard discussed in Coggin v. Starke Bros. Realty Co., 391 So. 2d 111

(Ala. 1980) (plurality opinion) (quoted with approval in Vick v. H.S.I.

Mgmt., Inc., 507 So. 2d 433, 435 (Ala. 1987)), in granting the Housing

Authority's motion for a summary judgment, we reverse the judgment

and remand the case for further proceedings consistent with this opinion.

The following factual summary is based on the parties' evidentiary

submissions regarding the Housing Authority's motion for a summary

judgment. For several years Wallace was a tenant of an apartment in

the Housing Authority's Curry Court apartment complex. In 2015,

Wallace suffered a stroke. In 2016, he applied to the Housing Authority

for a transfer to the Knoxville Homes apartment complex, where his

elderly mother resided, so that he could assist her and so that relatives

in or near that complex could easily check on him. The Housing

Authority approved Wallace's request and authorized his transfer,

subject to the availability of an apartment.

Wallace moved to his Knoxville Homes apartment on December 16,

2016. He testified in his December 2019 deposition that the Housing

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Authority had informed him that his Knoxville Homes apartment had

been inspected and was ready for him to move in. According to Wallace,

however, when he arrived to move into the apartment it was not ready.

He stated that the apartment was dirty, that there were indications of

roach and rat issues, that the floors needed additional work, that the

cabinet under a sink had a hole that needed repair, and that the

handrails around the back and front porches and the back-porch stairs

had been removed and not replaced. Wallace stated that he could not

return to his former apartment and that he proceeded to move into his

Knoxville Homes apartment despite the Housing Authority's purported

misrepresentation as to the readiness of the apartment.

The deposition colloquy between Wallace and the Housing

Authority's counsel included the following:

"[The Housing Authority's counsel]: … What was it

about the apartment that you did not think was ready?

"[Wallace]: It didn't have no rail. They cut the rails and

-- they cut the rails off. But I was told it going to be fixed

within a day or two. That's why I move in, because I thought

they going to fix it and it's been three years.[1]

1Wallace testified that the Housing Authority had reinstalled

railings a few months after his fall. Thus, Wallace's reference to "three

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"[The Housing Authority's counsel]: All right. So you

were told that the rails, which you saw were down, would be

fixed within a day or two after you moved in?

"[Wallace]: Yes."

Wallace stated that a Housing Authority employee again informed him

that "[t]hey were going to fix everything a week later" but, Wallace

stated, "they didn't."

The Housing Authority's counsel asked Wallace about a December

15, 2016, move-in-inspection form for his Knoxville Homes apartment,

which included Wallace's purported signature on a signature line for

"Resident Acceptance." That form contains line items for various parts

of the apartment rooms (doors, floors, etc.), but no line item specifically

for porches or stairs; all line items are checked "P," which appears to

indicate they were acceptable. Also, there was an area on the move-in-

inspection form for "work items" and comments, but those areas are

blank. When asked about the move-in-inspection form, Wallace stated

years" appears to have been a reference to the period between Wallace's

alleged fall and his deposition, not between his fall and the reinstallation

of the railings.

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that the essentially illegible signature was not his signature, but he then

stated "[t]hat's probably when I had that stroke. I don't know. Because

I know I write bad with my hand." When questioned again about whether

the signature was his, Wallace stated: "I don't know. I don't know, but

I'm saying -- you know, because I can't write with it right now, but if I

did, [the employee who also signed the inspection form] had told me that

one was ready." Wallace denied ever inspecting the Knoxville Homes

apartment before the day he moved in. Also, according to Wallace, the

employee who signed the move-in-inspection form was "from Curry

Court." Wallace denied ever going to the Knoxville Homes apartment

with the employee at issue, though he admitted that that employee had

been present and had opened the door to the Knoxville Homes apartment

on the day that Wallace moved.

Wallace stated that from the day he moved into his Knoxville

Homes apartment on December 16, 2016, until his fall on December 29,

2016, he had three conversations with employees of the Housing

Authority about installing the porch-and-stair railings. He stated that

initially he was told that the person who installed railings was deceased.

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Nevertheless, according to Wallace, he continued to ask about the

railings, and the employees of the Housing Authority repeatedly told him

that the railings would be reinstalled.

According to Wallace, on the morning that the fall occurred, he and

a friend who had come to check on him were going to go to breakfast.

Wallace stated that he fell while descending the back-porch stairs; the

friend was locking the back door when Wallace fell. Wallace stated that

he lost his balance stepping down on the second step of the three steps

down from the back porch, that he was using his cane to help balance

himself as he descended the stairs, but that he fell nevertheless. Wallace

attributed his fall to the lack of a railing and stated that he landed on the

concrete sidewalk when he fell but, fortunately, had not hit pieces of cut

railing that were protruding from the ground where the previous rails

had been removed. According to Wallace, as a result of the fall he had

injured his right shoulder and his knees and perhaps his neck, the latter

of which he had previously injured and had surgically repaired in 2008.

On December 17, 2018, Wallace filed a complaint in the trial court

against the Housing Authority, and he subsequently amended his

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complaint. Wallace alleged that his injuries from the fall were the result

of negligence or wantonness by the Housing Authority or the person or

legal entity who was responsible for the maintenance of his Knoxville

Homes apartment. On October 1, 2021, the Housing Authority filed a

motion for a summary judgment. The Housing Authority argued that it

was entitled to a summary judgment because the absence of the back-

porch stair railing was an open and obvious danger of which Wallace was

aware, and, it argued, it therefore had no further duty to Wallace. The

Housing Authority relied on our supreme court's decision in Daniels v.

Wiley, 314 So. 3d 1213 (Ala. 2020), in support of its argument.

In support of its motion for a summary judgment, the Housing

Authority included excerpts from Wallace's deposition testimony.

Wallace opposed the Housing Authority's motion for a summary

judgment, and he submitted his entire deposition testimony in support of

his opposition to the Housing Authority's motion. The materials before

the trial court also included a copy of the move-in-inspection form and

pictures of the front and back porches and stairs with railings that had

been installed after Wallace's fall. After a hearing on the Housing

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Authority's motion, the trial court entered an order on February 2, 2022,

granting the Housing Authority a summary judgment as to Wallace's

claims based on the authority of Daniels. 2

" 'This Court's review of a summary judgment is de novo.

Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74

(Ala. 2003). We apply the same standard of review as the trial

court applied. Specifically, we must determine whether the

movant has made a prima facie showing that no genuine issue

of material fact exists and that the movant is entitled to a

judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue

Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,

952-53 (Ala. 2004). In making such a determination, we must

review the evidence in the light most favorable to the

nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).

Once the movant makes a prima facie showing that there is

no genuine issue of material fact, the burden then shifts to the

nonmovant to produce "substantial evidence" as to the

existence of a genuine issue of material fact. Bass v.

SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98

(Ala. 1989); Ala. Code 1975, § 12-21-12. "[S]ubstantial

evidence is evidence of such weight and quality that fair-

minded persons in the exercise of impartial judgment can

reasonably infer the existence of the fact sought to be proved."

2Wallace also had alleged claims in his complaint against fictitious

parties. The trial court did not address those claims in the February 2022

judgment. However, that judgment is a final judgment for purposes of

appeal. See Webb v. Knology, Inc., 164 So. 3d 613, 616 n.1 (Ala. Civ. App.

2014) (discussing the application of Rule 4(f), Ala. R. Civ. P., and stating

that "[n]o defendants were ever substituted for the fictitiously named

defendants; therefore, the existence of those unserved and unnamed

defendants did not preclude the finality of the trial court's summary

judgment").

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West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871

(Ala. 1989).' "

Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow v. Alabama

Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004)).

On appeal, Wallace argues that the trial court erred by relying on

the holding in Daniels, which rejected Restatement (Second) of Torts §

343A (Am. L. Inst. 1965) as being a correct statement of Alabama law as

to a landlord's duty. In support of his argument, Wallace relies, in part,

on cases that were expressly overruled in Daniels. See discussion, infra.

However, as he did before the trial court, Wallace also relies on Coggin,

which reflects a separate line of authority applying the principles

discussed in Restatement (Second) of Torts §§ 360-361 (Am. L. Inst. 1965)

in determining a landlord's duty. To understand the holding in Daniels

and why we conclude that the exception or special duty rule discussed in

Coggin remains binding precedent, a discussion of the legal context for

those precedents is necessary.

Traditionally, it was well settled in Alabama that "[t]he general

duty imposed by the law on the owner of premises is to be reasonably

sure that he is not inviting another into danger, and to exercise ordinary

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care and prudence to render and keep his premises in a reasonably safe

condition for invitees." Prudential Ins. Co. of America v. Zeidler, 233 Ala.

328, 331, 171 So. 634, 636 (1936). However, generally, "[t]he landlord, in

the absence of a covenant to repair, is liable only for latent defects, known

to him at the time of the leasing, and which are concealed from the

tenant." Chambers v. Buettner, 295 Ala. 8, 12, 321 So. 2d 650, 653 (1975);

see, e.g., Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala.

308, 310, 13 So. 2d 182, 184 (1943) ("[T]he lessee takes the property as it

is, with no duty on the lessor to repair, the lessor is under duty to give

notice of latent defects, known to him to be dangerous to occupants, and

which were not reasonably discoverable by the lessee."); Zeidler, 233 Ala.

at 331, 171 So. at 636. 3

3Also "[i]t is the law that where the lessor, under no duty to repair,

voluntarily undertakes so to do, he is liable for injuries proximately

caused by negligence in so making repairs as to render the premises

dangerous to life or limb of those rightfully occupying the premises."

Faucett, 244 Ala. at 312, 13 So. 2d at 186; see also Zeidler, 233 Ala. at

332, 171 So. at 637; cf. Hart v. Coleman, 201 Ala. 345, 347, 78 So. 201,

203 (1917) (action ex contractu) ("The landlord was not only informed of

its unsafe condition, but admitted in his testimony the necessity for

repairs on the porch, and that he knew of the same, for he had seen it

himself when he went to collect the rents. The tenant had informed him

that unless it was fixed, she would no longer occupy the premises. It is

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Consistent with the traditional, general rules in Alabama as to the

liability of a landlord discussed above, Restatement (Second) of Torts §

356 (Am. L. Inst. 1965), states that, "[e]xcept as stated in §§ 357-362, a

lessor of land is not liable to his lessee or to others on the land for physical

harm caused by any dangerous condition, whether natural or artificial,

which existed when the lessee took possession." 4 Comment a. to

difficult to conceive that the parties could have had in mind at the time

of the agreement to repair any other injuries or damages save those

resulting to the person of the tenant by falling through the porch, just as,

in fact, did happen."). See generally Restatement (Second) of Torts § 357

(Am. L. Inst. 1965) (discussing the contract-to-repair exception as it

relates to a landlord's duty).

Wallace makes no argument in his appellate brief that the Housing

Authority owed him a duty to repair the back-porch-stair railing based

on the terms of his lease, on an agreement that the Housing Authority

made with him, or on a voluntary undertaking to make such repair.

Accordingly, we do not address that issue. See Pardue v. Potter, 632 So.

2d 470, 473 (Ala. 1994) ("Issues not argued in the appellant's brief are

waived.").

4Likewise, Restatement (Second) of Torts § 355 (Am. L. Inst. 1965),

states that "[e]xcept as stated in §§ 357 and 360-362, a lessor of land is

not subject to liability to his lessee or others upon the land with the

consent of the lessee or sublessee for physical harm caused by any

dangerous condition which comes into existence after the lessee has

taken possession."

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Restatement (Second) of Torts § 356 discusses the basis for that rule and

its pertinent exceptions:

"When land is leased to a tenant, the law of property regards

the lease as equivalent to a sale of the land for the term of the

lease. The lessee acquires an estate in the land, and becomes

for the time being the owner and occupier, subject to all of the

liabilities of one in possession, both to those who enter the

land and to those outside of it. Therefore, as in the case of the

vendor under § 352, it is the general rule that the lessor is not

liable to the lessee, or to others on the land, for injuries

occurring after the lessee has taken possession, even though

such injuries result from a dangerous condition existing at the

time of the transfer.

"To this general rule, the modern law has developed a

number of exceptions, which are stated in §§ 357-362. These

exceptions have been due in large part to increasing

recognition of the fact that tenants who lease defective

premises are likely to be impecunious and unable to make the

necessary repairs which their own safety and that of others

may demand; that one who is in possession of the premises

only for a limited term does not have the same incentive to

maintain them in good condition as the lessor to whom they

will revert at the end of the lease; and that the landlord who

receives benefit from the transaction in the form of rent may

properly be required to assume in return at least certain

limited obligations with respect to the safety of others."

The reference of Comment a. to "modern law" regarding the exceptions

to § 356 is a bit misleading because substantially the same principles are

present in the comparable exceptions as to a landlord's duty discussed in

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Restatement (First) of Torts, §§ 357-62 (Am. L. Inst. 1934), including, in

pertinent part the exceptions described in §§ 360-61 of the Restatement

(Second) of Torts.

Section 360 of the Restatement (Second) of Torts states:

"A possessor of land who leases a part thereof and retains in

his own control any other part which the lessee is entitled to

use as appurtenant to the part leased to him, is subject to

liability to his lessee and others lawfully upon the land with

the consent of the lessee or a sublessee for physical harm

caused by a dangerous condition upon that part of the land

retained in the lessor's control, if the lessor by the exercise of

reasonable care could have discovered the condition and the

unreasonable risk involved therein and could have made the

condition safe."

(Emphasis added.); see also id. at cmt. a. ("The lessee may, for example,

know that the common entrance to the apartment or office which he has

leased has become dangerous for use because of the lessor's failure to

maintain it in safe condition. His knowledge may subject him to liability

even to his own licensees, if he fails to warn them of the danger. It will

not, however, relieve the lessor of liability for his negligence in permitting

the entrance to become dangerous."); id. at cmt. b. ("The rule stated in

this Section may also apply even though the person injured, whether he

be the lessee himself or a third person, has knowledge of the existence of

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the dangerous condition. His knowledge may put him in contributory

fault … and in that event he will be disabled from maintaining an action

for any harm suffered while using the dangerous premises. But unless

the danger is so apparent and so great that it is unreasonable for him to

encounter it in view of the purpose of his use, or unless knowing the

danger he fails to exercise that caution which a reasonable man would

exercise under the same circumstances, the lessor remains liable to him

notwithstanding his knowledge of the existence of the condition.");

Restatement (First) of Torts § 360 cmt. a. (Am. L. Inst. 1934)

(acknowledging that a lessee may be precluded from recovery based on

the lessee's contributory negligence but "[t]he rule stated in this Section

applies to subject the lessor to liability irrespective of whether the lessee

or those upon the land in his right know or do not know of the dangerous

condition").

Likewise, § 361 of the Restatement (Second) of Torts states:

"A possessor of land who leases a part thereof and retains in

his own control any other part which is necessary to the safe

use of the leased part, is subject to liability to his lessee and

others lawfully upon the land with the consent of the lessee or

a sublessee for physical harm caused by a dangerous condition

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upon that part of the land retained in the lessor's control, if

the lessor by the exercise of reasonable care

"(a) could have discovered the condition and

the risk involved, and

"(b) could have made the condition safe."

(Emphasis added.); see also id. at cmt. a. ("The rule stated in this Section

applies irrespective of whether the lessee or his licensees coming in his

right upon that part of the land leased to him, know or could, by the

exercise of reasonable care, discover the dangerous condition maintained

by the lessor upon that part of the land maintained within his own

control. As to the effect of the knowledge of the lessee and others entering

upon the land with his consent, see § 360, Comment a."); and

Restatement (First) of Torts § 361 cmt. a. (Am. L. Inst. 1934).

In Hancock v. Alabama Home Mortgage Co., 372 So. 2d 858, 858

(Ala. 1979), the supreme court quoted the exception to the general rule

as to a landlord's duty set out in the Restatement (Second) of Torts § 360

and stated "[t]his has long been the rule in this State." See also Zeidler,

233 Ala. at 333, 171 So. at 638 ("[T]he general authorities -- state and

federal -- in this jurisdiction are to the effect that, 'to the rule that a

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tenant takes the leased premises subject to defects not amounting to a

trap, there is an exception to the effect that the owner of a building who

leases it to different tenants, and expressly or impliedly reserves portions

thereof, such as halls, stairways, porches, walks, etc., for the use in

common of different tenants, is liable for any personal injury to a tenant,

or a person in privity with a tenant, due to defects in the portion of the

leased premises of which the landlord so retains control, provided the

defect is ascribable to the negligence of the landlord, and the tenant or

person injured is not guilty of contributory negligence.' (Italics supplied.)

25 A.L.R. 1273; Mudd et al. v. Gray, 200 Ala. 92, 75 So. 468, [(1917)]."

(first emphasis added)); Hancock v. Alabama Home Mortg. Co., 393 So.

2d 969, 970 (Ala. 1981) (quoting Zeidler favorably and stating that "[t]his

duty is imposed so that 'tenants and their invitees may have egress and

ingress without unnecessary danger in the due exercise of the privilege

or necessity of going to and from such apartment house or office building.'

Preston v. LaSalle Apartments, 241 Ala. 540, 3 So. 2d 411 (1941).").

Likewise, in Coggin, the opinion quoted the exceptions to the

general rule as to a landlord's duty set out in Restatement (Second) of

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Torts §§ 360-61, and, in the context of a slip-and-fall claim by Marguerite

G. Coggin against her landlord, stated that there was evidence that she

"fell while descending a steep stairway with narrow steps and without a

handrail. All of the elements of her claim could reasonably be inferred

by the factfinder from the totality of the circumstances as shown by the

evidence. … [T]he evidence, including evidence bearing on the defense of

'open and obvious danger,' viewed in light of the applicable substantive

law, presents genuine issues of material fact which [Coggin] is entitled

to have submitted, pursuant to appropriate instructions, for a jury's

determination." 391 So. 2d at 113; see also Vick v. H.S.I. Mgmt., Inc.,

507 So. 2d 433, 435 (Ala. 1987) (noting Hancock, quoting Coggin as to §

360 of the Restatement (Second) of Torts, distinguishing between a

landlord's duty to warn and a landlord's duty to maintain certain common

areas when considering the import of a danger being "open and obvious,"

and stating "[plaintiff] presented evidence that while upon the common

areas of the apartment complex, she slipped and fell at night on some

stairs located in an area of the complex that had insufficient lighting.

There was evidence that the apartment manager had received

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complaints about the inadequate lighting. Furthermore, there was

evidence that at the time of her fall, the handrail on the stairs had been

broken and had never been repaired or replaced. We hold that there is

evidence indicating that [the landlord] had not met its duty to maintain

common areas in a reasonably safe condition."); Chambers v. Buettner,

295 Ala. 8, 12, 321 So. 2d 650, 653 (1975) (stating that "the rule set out

in Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585

(1924)," is "embodied in … § 361" of the Restatement (Second) of Torts).

In contrast to the foregoing precedents applying what the supreme

court has described as the longstanding law in Alabama, the reliance of

our courts on Restatement (Second) of Torts § 343A, which was quoted

and discussed in Daniels, see 314 So. 3d at 1218-1225, has no foundation

in Alabama law. Section 343A was first discussed by Justice Jones in

Glenn v. United States Steel Corp., 423 So. 2d 152, 156 (Ala. 1982) (Jones,

J., dissenting, joined by Faulkner, J.). In Glenn, which involved an

electrocution incident that occurred at U.S. Steel's Fairfield Works, the

supreme court stated that it

"ha[d] defined the duty owed by an owner of premises to an

independent contractor on a number of occasions.

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" '[A]n owner of premises is not responsible to an

independent contractor for injury from defects or

dangers which the contractor knows of, or ought to

know of. If the defect or danger is hidden and

known to the owner, and neither known to the

contractor, nor such as he ought to know, it is the

duty of the owner to warn the contractor and if he

does not do this, of course, he is liable for resultant

injury. Crawford Johnson & Co. v. Duffner, 279

Ala. 678, 189 So. 2d 474 (1966).' "

423 So. 2d at 154 (quoting Veal v. Phillips, 285 Ala. 655, 657-58, 235 So.

2d 799 (1970)). In his dissent in Glenn, Justice Jones acknowledged that

the general rule as to premises liability was that "either a warning from

the landowner, or the obviousness of the condition, is sufficient to

discharge all duties of the landowner," a rule that was said to be

comparable to Restatement (First) of Torts § 343 (Am. L. Inst. 1934).5

5Section 343 of the Restatement (First) of Torts, which addressed

the negligence liability of possessors of land generally, rather than only

landlords, stated:

"A possessor of land is subject to liability for bodily harm

caused to business visitors by a natural or artificial condition

thereon if, but only if, he

"(a) knows, or by the exercise of reasonable

care could discover, the condition which, if known

to him, he should realize as involving an

unreasonable risk to them, and

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Glenn, 423 So. 2d at 156. Justice Jones criticized the traditional rule

discussed in the main opinion in Glenn as being too restrictive. He urged

the supreme court to adopt the more liberal rule as to duty discussed in

"(b) has no reason to believe that they will

discover the condition or realize the risk involved

therein, and

"(c) invites or permits them to enter or

remain upon the land without exercising

reasonable care

"(i) to make the condition

reasonably safe, or

"(ii) to give a warning adequate to

enable them to avoid the harm without

relinquishing any of the services which

they are entitled to receive, if the

possessor is a public utility."

See also id. at cmt. a. ("[T]he visit of a business visitor is or may be

financially beneficial to the possessor. Such a visitor is entitled to expect

that the possessor will take reasonable care to discover the actual

condition of the premises and either make them safe or warn him of

dangerous conditions."); id. at cmt. d. ("A business visitor is entitled to

expect that the possessor will take reasonable care to ascertain the actual

condition of the premises and, having discovered it, either to make it

reasonably safe by repair or to give warning of the actual condition and

the risk involved therein.").

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Restatement (Second) of Torts § 343A: " '(1) A possessor of land is not

liable to his invitees for physical harm caused to them by any activity or

condition on the land whose danger is known or obvious to them, unless

the possessor should anticipate the harm despite such knowledge or

obviousness. (Emphasis supplied.)' " 423 So. 2d at 157 (quoting

Restatement Second of Torts § 343A (Am. L. Inst. 1965)). 6

6We note that, as was the case with § 343 of the Restatement (First)

of Torts, see note 5, supra, § 343A of the Restatement (Second) of Torts

is among the sections of the Restatement (Second) of Torts discussing the

rules applicable to the broader category of any possessor of land (not

merely landlords), which generally includes any person occupying and

intending to control the land at issue. See Restatement (Second) of Torts

§§ 328E-350 (Am. L. Inst. 1965) (discussing the rules applicable to a

possessor of land); Restatement (Second) of Torts §§ 355-362 (Am. L. Inst.

1965) (discussing the rules applicable to a landlord). Also, § 343A of the

Restatement (Second) of Torts was intended as a companion section to

Restatement (Second) of Torts § 343 (Am. L. Inst. 1965), see id. at cmt. a.

Section 343 of the Restatement (Second) of Torts states:

"A possessor of land is subject to liability for physical

harm caused to his invitees by a condition on the land if, but

only if, he

"(a) knows or by the exercise of reasonable

care would discover the condition, and should

realize that it involves an unreasonable risk of

harm to such invitees, and

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After the decision in Glenn, the supreme court cited Restatement

(Second) of Torts § 343A in support of certain decisions, see, e.g., Terry v.

Life Ins. Co. of Georgia, 551 So. 2d 385, 386 (Ala. 1989), overruled by

Daniels v. Wiley, 314 So. 3d 1213 (Ala. 2020); see also Hale v. Sequoyah

Caverns & Campgrounds, Inc., 612 So. 2d 1162, 1165-66 (Ala. 1992)

(Hornsby, C.J., concurring in the result) (Section 343A "reflects a growing

judicial awareness that occupiers of premises are generally in a better

position in modern society to protect the public from hazards than are

invitees who must go into public places to function in that society. In

addition, the Restatement [(Second) of Torts] view encourages

landowners to repair defects, rather than to keep them 'open and obvious'

in order to avoid liability under the traditional approach.").

Nevertheless, the supreme court also stated in Ex parte Gold Kist, Inc.,

686 So. 2d 260, 261 (Ala. 1996), that it "decline[d] to adopt § 343A as a

"(b) should expect that they will not discover

or realize the danger, or will fail to protect

themselves against it, and

"(c) fails to exercise reasonable care to

protect them against the danger."

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correct statement of the law relating to the liability of a possessor of

land."

In Daniels, which involved a tenant's claims arising from a slip-

and-fall on a muddy sidewalk that led to the mail kiosk, the supreme

court again addressed the novelty of Restatement (Second) of Torts §

343A that had found its way into that court's precedents and this court's

precedents after the decision in Glenn; the supreme court expressly

overruled precedents relying on Restatement (Second) of Torts § 343A as

a correct statement of the general rule governing the duty of a landlord

as to an open and obvious danger. 314 So. 3d at 1224-25. However, in

addition to discussing the traditional, general rule governing a landlord's

duty, the supreme court continued to acknowledge the existence of

Alabama precedent regarding exceptions to the general rule.

Specifically, the supreme court in Daniels quoted at length from Sessions

v. Nonnenmann, 842 So. 2d 649 (Ala. 2002):

" '[O]penness and obviousness of a hazard, if established,

negate the general-contractor invitor's duty to eliminate the

hazard or to warn the subcontractor invitee of the hazard; and

this negation of duty, in and of itself, defeats the

subcontractor's injury claim without the operation of any

affirmative defense such as contributory negligence or

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assumption of risk. In other words, in this context, openness

and obviousness, if established, negate the duty, defeat the

claim, and pretermit any issue of the effect of openness and

obviousness on the affirmative defenses of contributory

negligence and assumption of risk. Only if the subcontractor

plaintiff can establish some special duty on the general

contractor to protect the subcontractor from open and obvious

hazards, as distinguished from the general contractor's

general duty as stated by Breeden [v. Hardy Corp., 562 So. 2d

159 (Ala. 1990)], which does not require such protection, and

only if the subcontractor plaintiff can likewise establish a

breach of such special duty and proximately resulting

damages, might the issue of the effect of the openness and

obviousness on the affirmative defenses of contributory

negligence and assumption of risk become critical.' "

Daniels, 314 So. 3d at 1223-24 (quoting Sessions, 842 So. 2d at 652).

Returning to its discussion regarding the general rule, the supreme court

in Daniels continued:

"[C]ontrary to Daniels's contention, this Court in Sessions

explicitly recognized that the law relied upon by Daniels

holding that a landlord has a duty to eliminate open and

obvious dangers or to warn an invitee of such dangers if the

invitor 'should anticipate the harm' -- is not the law in

Alabama. … To the extent that Turner [v. Dee Johnson

Properties, 201 So. 3d 1197 (Ala. Civ. App. 2016)]; McDonald

[v. Lighami Dev. Co., 962 So. 2d 847 (Ala. Civ. App. 2006)

(plurality opinion)]; Ex parte Howard ex rel. Taylor, 920 So.

2d 553 (Ala. 2005); Campbell [v. Valley Garden Apartments,

600 So. 2d 240 (Ala. 1992)]; Terry [v. Life Ins. Co. of Georgia,

551 So. 2d 385 (Ala. 1989)]; and other cases citing, quoting,

and/or applying the Restatement (Second) of Torts § 343A

may hold otherwise, they are overruled."

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Daniels, 314 So. 3d at 1224-25.

The supreme court next considered in Daniels the argument that

the landlord at issue,

"Hawthorne-Midway [Lily Flagg, LLC,] breached a special

duty, as distinguished from the general duty we have already

discussed. Daniels appears to maintain that, because the

[Safety and Maintenance] Manual used at the apartment

complex required daily inspections of the property to identify

and remove debris, Hawthorne-Midway had 'a self-imposed

duty to inspect the property for daily debris' and that it

breached that duty by failing to identify and remove the

danger created by the mud. In her discussion of this issue,

Daniels cites general propositions of law regarding a

landlord's duty to maintain common areas, see Hancock v.

Alabama Mortg. Co., 393 So. 2d 969, 970 (Ala. 1981) (noting

that landlord has a duty to maintain the common areas in a

reasonably safe condition); Graveman v. Wind Drift Owners'

Ass'n, 607 So. 2d 199, 204 (Ala. 1992) (noting that landlord's

duty to maintain common areas includes stairways intended

for the common use of tenants); and Coggin v. Starke Bros.

Realty Co., 391 So. 2d 111, 112 (Ala. 1980) (noting that

tenants are invitees of the landlord while using common areas

on the landlord's property). Daniels does not cite any legal

authority to support her contention that a landlord's safety

manual imposes a special duty of care on the landlord to

protect tenants from open and obvious dangers.

"Arguments in an appellant's brief must be supported by

adequate legal authority. See Rule 28(a)(10), Ala. R. App. P.

'[I]t is not the function of this Court to do a party's legal

research or to make and address legal arguments for a party

based on undelineated general propositions not supported by

sufficient authority or argument.' Dykes v. Lane Trucking,

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Inc., 652 So. 2d 248, 251 (Ala. 1994). Because Daniels does

not provide this Court with a legal basis for reversing the trial

court's judgment in this regard, this unsupported contention

does not provide a ground for reversal."

314 So. 3d at 1225-26 (first and second emphases added).

Based on the foregoing, in Daniels the supreme court rejected the

precedents that had relied on the Restatement (Second) of Torts § 343A

and that had adopted a more liberal approach than the traditional,

general rule as to the duty of a landlord regarding an open obvious

danger. The Housing Authority contends that Daniels did more than

that, however, essentially arguing that in unwinding the precedents

relying on the judicial innovation of Restatement (Second) of Torts §

343A, the supreme court also intended to simultaneously overrule the

longstanding exceptions to the traditional, general rule as to a landlord's

duty. We disagree.

As the above discussion indicates, in Daniels the supreme court did

not reject the notion that a landlord may owe a special duty to a tenant

under certain circumstances, nor did the supreme court address whether

it was rejecting other exceptions to the traditional, general rule that had

existed before the Alabama precedents that had applied Restatement

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(Second) of Torts § 343A. The plaintiff in Daniels does not appear to have

adequately argued that any other exception or special duty applied to her

claim, which involved merely a muddy sidewalk leading to the mail kiosk.

Daniels did not expressly discuss Restatement (Second) of Torts §§ 360-

61 or criticize the above-noted precedents discussing those sections as

correct statements of Alabama law regarding exceptions to the general

rule governing a landlord's duty as to an open and obvious danger.7

Indeed, the supreme court referenced Hancock and Coggin as part of

Daniel's inadequately made special-duty argument, describing the cases

7We acknowledge that in Daniels the supreme court expressly

overruled Ex parte Howard ex rel. Taylor, 920 So. 2d 553, (Ala. 2005),

which relied, in part, on § 360 and, in part, on § 343A, and this court's

decision in McDonald v. Lighami Development Co., 962 So. 2d 847, 853

(Ala. Civ. App. 2006) (plurality opinion regarding a tenant's guest who

fell on slippery stepping stones), which relied on § 360 and, in part,

precedents reflecting the adoption of § 343A that were expressly

overruled in Daniels for misstating the rule as to a landlord's duty,

particularly Campbell v. Valley Garden Apartments, 600 So. 2d 240, 241

(Ala. 1992)). However, the supreme court overruled Ex parte Howard

and McDonald as part of a string cite overruling "cases citing, quoting,

and/or applying the Restatement (Second) of Torts § 343A," Daniels, 314

So. 3d at 1225, in other words, those cases were overruled as part of its

decision correcting the misstatement of law that section had represented.

Nowhere in the supreme court's discussion in Daniels does it purport to

overrule exceptions that were not based on the duty described in § 343A.

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as being cited by Daniels for "general propositions of law regarding a

landlord's duty to maintain common areas," see 314 So. 3d at 1225; the

supreme court gave no indication that those cases had incorrectly stated

the law or had been overruled as part of the court's addressing the

general rule as to a landlord's duty.

The present case, unlike Daniels, factually resembles Coggin

regarding the type of danger at issue -- a missing stair handrail leading

to the leased premises -- and involves the issue whether longstanding,

supreme-court approved exceptions to the general rule as to a landlord's

duty apply after the decision in Daniels, specifically the exceptions

described in Restatement (Second) of Torts §§ 360-61. As discussed

above, we cannot conclude that Daniels changed Alabama law as to those

exceptions, and we must therefore apply Coggin as reflecting a proper

statement of Alabama law. See Ala. Code 1975, § 12-3-16. 8

8The parties did not discuss the Alabama Uniform Residential

Landlord and Tenant Act ("the Act"), Ala. Code 1975, § 35-9A-101 et seq.,

in their arguments to the trial court or this court. The Act generally

became effective on January 1, 2007. See § 35-9A-601. The Act includes

a remedial scheme, see § 35-9A-401 et seq., but it does "not create any

duties in tort or causes of action in tort, nor does it deprive anyone of any

causes of action in tort that may exist apart from this chapter." Ala. Code

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In response to Wallace's argument, the Housing Authority

suggests, for the first time on appeal, that the back-porch stair was not a

common area, while continuing to contend that the classification of that

stair is immaterial to the resolution of this case. This is essentially an

attempt to assert an alternative ground for affirmance based on a factual

matter that is inconsistent with the Housing Authority's argument made

in the trial court. In the trial court, the Housing Authority argued that,

as long as the danger at issue is open and obvious, a landlord owes no

duty to a tenant under Daniels, a common-area case, and that Coggin,

also a common-area case, was no longer applicable. The Housing

Authority made no attempt to argue and show that no factual dispute

existed as to the status of the back-porch stair such that Coggin was

1975, § 35-9A-102(c). We must presume that the legislature was familiar

with the decisions of our courts when it passed the Act and chose not to

include provisions addressing tort liability, including the precedents

applying the exceptions described in Restatement (Second) of Torts §§

360-61 and Ex parte Gold Kist, which had declined to adopt Restatement

(Second) of Torts § 343A. See, e.g., Carson v. City of Prichard, 709 So. 2d

1199, 1206 (Ala. 1998) ("The Legislature is presumed to be aware of

existing law and judicial interpretation when it adopts a statute.").

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inapplicable. 9 Thus, the burden did not shift to Wallace to respond with

an evidentiary submission or argument as to that issue. See Prince,

supra; see also Hathcock Roofing & Remodeling Co. v. Compass Bank, 50

So. 3d 1097, 1101 (Ala. Civ. App. 2010) (noting that due process

constraints do not permit the affirmance of a summary judgment on an

alternative, unasserted ground as to the adequacy of the plaintiff's

evidence to establish his or her claim). Under the circumstances, we

cannot agree that the Housing Authority demonstrated that no disputed

material fact existed as to the status of the back-porch stair such that the

9The Housing Authority's evidentiary submissions were directed to

the issue whether the danger at issue was open and obvious, not the

status of the back-porch stair itself. The Housing Authority did not

submit a copy of its lease with Wallace or an affidavit from a

representative of the Housing Authority averring that the back-porch

stair belonged only to Wallace under the lease and that the Housing

Authority had no control over that area. Also, Wallace did not admit in

his deposition that he had been granted the exclusive right to use or

control the back-porch stair or that the Housing Authority, which

obviously had control over the Knoxville Homes apartment complex to

the extent it had not been granted to someone else, had not retained

control over the back-porch stair. Instead, the record includes a picture

of the back-porch stair to Wallace's apartment and Wallace's testimony

regarding his knowledge that the railings were missing, the Housing

Authority's commitment to repair the railings, and its subsequent repair

of the railings.

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above-discussed precedents applying the principles from Restatement

(Second) of Torts §§ 360-61 discussed in Coggin were inapplicable and

that the Housing Authority was entitled to a judgment as a matter of law.

Based on the foregoing, the trial court erred in relying on Daniels

and rejecting Coggin in determining whether the Housing Authority was

entitled to a summary judgment on the ground that it owed no duty to

Wallace because the missing back-porch-stair railing was an open and

obvious danger. The judgment is reversed and the case is remanded to

the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Moore, J., concur.

Hanson, J., dissents, with opinion, which Fridy, J., joins.

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HANSON, Judge, dissenting.

I respectfully dissent. On appeal, Harold Wallace argues that the

Restatement (Second) of Torts § 360 (Am. L. Inst. 1965), and Coggin v.

Starke Bros. Realty Co., 391 So. 2d 111 (Ala. 1980), are controlling in this

case and that Daniels v. Wiley, 314 So. 3d 1213 (Ala. 2020), is factually

distinguishable from his claims for alleged injuries that he suffered as a

result of a fall while descending the back-porch stairs of his apartment

operated by The Housing Authority of the City of Talladega ("the Housing

Authority").

I disagree that Coggin and the Restatement (Second) of Torts § 360

(Am. L. Inst. 1965), are controlling in this case. The issue presented in

Coggin is whether substantial fact issues existed as to the landlord's

duty, the breach thereof, and the injury proximately caused by the

alleged breach. When addressing the issue presented in Coggin, our

supreme court cites Restatement (Second) of Torts § 360 (Am. L. Inst.

1965), in explaining the general law that tenants are considered invitees

of the landlord while utilizing the common areas of the landlord's

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property. However, in Coggin, our supreme court's analysis does not

address "open and obvious" conditions.

The issue presented in this case is whether the Housing Authority

owed any legal duty to Wallace because the lack of handrails on the back

porch stairs created an "open and obvious" condition that was known to

Wallace, which is the same question presented in Daniels. Similar to the

tenant in Daniels, Wallace asserts that "the duty owed by the owner or

occupier of a premises is to protect an invitee from hidden defects that

are unknown to the invitee and that would not be discovered by the

exercise of ordinary care" and that "even though a defect is open and

obvious, an injured invitee is not barred from recovery where the invitee,

acting reasonably, did not appreciate the danger of the defect."

In support of his contention, Wallace cites Campbell v. Valley

Garden Apartments, 600 So. 2d 240 (Ala. 1992), and Turner v. Dee

Johnson Properties, 201 So. 3d 1197 (Ala. Civ. App. 2016), which, he says,

hold that, in a premise-liability case, even if a tenant/invitee knows of the

open and obvious danger that causes the injury, the landlord may still be

liable for damages if the landlord knows of the danger and should have

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anticipated the harm created by the danger. He reasons that the

"evidence bearing on the defense of 'open and obvious danger,' " presents

genuine issues of material fact which are created for the jury to resolve.

Notably, our supreme court in Daniels overruled Turner, Campbell,

and other cases citing, quoting and/or applying the Restatement (Second)

of Torts § 343A (Am. L. Inst. 1965). Specifically, our supreme court stated

that it had explicitly recognized in Sessions v. Nonnenmann, 842 So. 2d

649 (Ala. 2002), that the law holding that a landlord has a duty to

eliminate open and obvious dangers or to warn an invitee of such dangers

if the invitor "should anticipate the harm" is not the law in Alabama.

Daniels, 314 So. 3d at 1224-25.

Applying Daniels to the facts of this case and viewing the evidence

in a light most favorable to Wallace, as we are required to do, the lack of

handrails is an "open and obvious" danger. A condition is "open and

obvious" when it is "known to the [plaintiff] or should have been observed

by the [plaintiff] in the exercise of reasonable care. " Quillen v. Quillen,

388 So. 2d 985, 989 (Ala. 1980)." Denmark v. Mercantile Stores Co., 844

So. 2d 1189, 1194 (Ala. 2002). The evidence that the lack of handrails on

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the stairs was open and obvious danger is undisputed. Wallace agreed

that the lack of handrails on the stairs created an open and obvious

danger, and he admitted that he appreciated the danger created by the

lack of handrails when he testified in his deposition that he alerted the

Housing Authority of the lack of handrails. Browder v. Food Giant, Inc.,

854 So. 2d 594, 596 (Ala. Civ. App. 2002) (holding danger was open and

obvious when invitee admitted that she was not paying attention to

where she walked). Accordingly, I must respectfully dissent.

Fridy, J., concurs.

35