Rel: May 24, 2024

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 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0537

_________________________

Ex parte Housing Authority of the City of Talladega

PETITION FOR WRIT OF CERTIORARI 

TO THE COURT OF CIVIL APPEALS 

(In re: Harold Wallace 

v. 

The Housing Authority of the City of Talladega) 

(Talladega Circuit Court: CV-18-900509; 

Court of Civil Appeals: 2210486)

COOK, Justice.
SC-2023-0537

2

Harold Wallace fell while walking down the back-porch stairs to his 

apartment. In December 2018, he filed a complaint in the Talladega 

Circuit Court against his landlord, the Housing Authority of the City of 

Talladega ("the Housing Authority"). Wallace asserted claims of 

negligence and wantonness because the handrails for those stairs were 

missing when he fell. The Housing Authority moved for a summary 

judgment, arguing that the lack of handrails was an "open and obvious" 

danger and that Wallace had conceded in his deposition that the lack of 

handrails was known by him. The trial court agreed and granted the 

Housing Authority's motion for a summary judgment. Shortly afterward, 

Wallace appealed to the Court of Civil Appeals. 

In a 3-2 decision, the Court of Civil Appeals reversed the trial 

court's summary judgment in favor of the Housing Authority. See 

Wallace v. Housing Auth. of Talladega, [Ms. 2210486, Apr. 14, 2023] ____ 

So. 3d ____ (Ala. Civ. App. 2023). The Housing Authority then filed an 

application for a rehearing, which the Court of Civil Appeals overruled, 

without an opinion. 

The Housing Authority then petitioned this Court for certiorari 

review, arguing that the Court of Civil Appeals' decision conflicts with 
SC-2023-0537

3

this Court's prior decision in Daniels v. Wiley, 314 So. 3d 1213 (Ala. 

2020). In Daniels, we affirmed a summary judgment for the defendant 

landlord after concluding that the landlord had no duty to the plaintiff 

tenant with respect to risks created by the muddy condition of a sidewalk 

within her apartment complex because the danger was "open and 

obvious." We granted certiorari review to determine whether the Court 

of Civil Appeals' decision in this case does in fact conflict with our 

decision in Daniels.

As explained below, after careful review, we conclude that the Court 

of Civil Appeals' decision does not conflict with Daniels, and we thus 

affirm. We issue this opinion primarily to clarify the scope and 

applicability of our decision in Daniels, including how the "open and 

obvious" doctrine applies in the landlord-tenant context. 

Facts and Procedural History

After suffering a stroke in 2015, Wallace applied in 2016 to the 

Housing Authority for a transfer to a handicap-accessible apartment in 

the Knoxville Homes apartment complex where his elderly mother lived. 

The Housing Authority approved Wallace's request and authorized his 

transfer, subject to the availability of an apartment.
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In December 2016, Wallace began preparing to move into his new 

apartment at Knoxville Homes. Wallace would later testify during a 

deposition that the Housing 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, he discovered that 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 the 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. Because he could not return to his former apartment, Wallace 

proceeded to move into his Knoxville Homes apartment despite those 

issues. 

When asked during his deposition what it was about the apartment 

that made him think that it was not ready, Wallace stated: 

" It didn't have no rail. They cut the rails and -- they cut 

the rails off. But I was told it [was] 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."
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5

Although a Housing Authority employee told Wallace that the Housing 

Authority would fix everything within a week, Wallace stated that it did 

not do so.

Wallace also 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. According to 

Wallace, the employees of the Housing Authority repeatedly told him 

that the railings would be reinstalled.

Wallace stated that, on the morning of December 29, 2016, he fell 

while descending the back-porch stairs. Although he was using his cane 

to help him keep his balance, Wallace stated that he nevertheless lost his 

balance and fell to the concrete sidewalk below. Wallace attributed his 

fall to the lack of a railing. According to Wallace, as a result of the fall, 

he injured his right shoulder, his knees, and perhaps his neck. 

On December 17, 2018, Wallace sued the Housing Authority. 

Wallace alleged that his injuries from the fall were the result of the 

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

entity who was responsible for the maintenance of his Knoxville Homes 
SC-2023-0537

6

apartment. 

On October 1, 2021, the Housing Authority filed a motion for a 

summary judgment. Relying on this Court's prior decision in Daniels, 

supra, 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. As a result, the 

Housing Authority argued that it owed no duty to Wallace. In support of 

its motion, the Housing Authority included excerpts from Wallace's 

deposition testimony. 

Wallace opposed the Housing Authority's motion for a summary 

judgment. In support of his opposition, Wallace submitted his entire 

deposition testimony.

Following a hearing on the Housing Authority's motion, the trial 

court entered a summary judgment in its favor based on the authority in 

Daniels. As stated previously, Wallace then appealed the trial court's 

decision to the Court of Civil Appeals.

The Court of Civil Appeals, after reviewing the record, held that the 

trial court had erred in relying on Daniels in determining that the 

Housing Authority was entitled to a summary judgment. Thus, the Court 
SC-2023-0537

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of Civil Appeals reversed the trial court's summary judgment in favor of 

the Housing Authority and remanded the case for further proceedings. 

This petition for a writ of certiorari followed. 

Standard of Review

" ' "On certiorari review, this Court accords no 

presumption of correctness to the legal conclusions of the 

intermediate appellate court. Therefore, we must apply de 

novo the standard of review that was applicable in the Court 

of Civil Appeals." ' "

Ex parte S.L.M., 171 So. 3d 673, 677 (Ala. 2014) (quoting Ex parte Helms, 

873 So. 2d 1139, 1143 (Ala. 2003), quoting in turn Ex parte Toyota Motor 

Corp., 684 So. 2d 132, 135 (Ala. 1996)).

" ' The standard of review applicable to a summary 

judgment is the same as the standard for granting the motion 

....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 

So. 2d 957, 958 (Ala. 1992).

" ' A summary judgment is proper when there 

is no genuine issue of material fact and the moving 

party is entitled to a judgment as a matter of law. 

Rule 56(c)(3), Ala. R. Civ. P. The burden is on the 

moving party to make a prima facie showing that 

there is no genuine issue of material fact and that 

it is entitled to a judgment as a matter of law. In 

determining whether the movant has carried that 

burden, the court is to view the evidence in a light 

most favorable to the nonmoving party and to 

draw all reasonable inferences in favor of that 

party. To defeat a properly supported summary 
SC-2023-0537

8

judgment motion, the nonmoving party must 

present "substantial evidence" creating a genuine 

issue of material fact -- "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." 

Ala. Code 1975, § 12-21-12; West v. Founders Life 

Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 

1989).'

"Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So. 2d 

1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. 

Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 

(Ala. 2004)."

Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 935 (Ala. 2006).

Discussion

In its petition, the Housing Authority alleges that the Court of Civil 

Appeals' decision conflicts with this Court's prior decision in Daniels, 

supra, which the Housing Authority cites for the proposition that it had 

no duty to warn of or make safe the condition of the back-porch steps 

because, it says, the danger posed by that condition was "open and 

obvious." According to the Housing Authority, the Court of Civil Appeals 

improperly ignored our holding in Daniels when it concluded that §§ 360 

and 361 of the Restatement (Second) of Torts (Am. L. Inst. 1965) ("the 

Second Restatement") require landlords/lessors to protect tenants/lessees 
SC-2023-0537

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from even "open and obvious" dangers in certain circumstances. 

Because we conclude that the Court of Civil Appeals applied the 

appropriate legal principles, we affirm. However, in light of the apparent 

confusion over the scope and applicability of Daniels, we issue this 

opinion to clarify the proper interpretation of that decision.

I. The Restatement Principles

Our Court has sometimes cited different provisions of the 

Restatements of Torts when discussing how the "open and obvious" 

doctrine applies to premises-liability claims, even in the landlord-tenant 

context. Thus, before turning to this Court's decision in Daniels, we 

believe it helpful to provide a background on the relevant provisions of 

the Restatement (First) of Torts (Am. L. Inst. 1934) ("the First 

Restatement") and the Second Restatement and to discuss the Alabama 

caselaw applying those provisions. 

A. A Landlord's Liability to Tenants Under the First 

Restatement

Section 356 of the First Restatement, which falls within a topic 

titled "Liability of Lessors of Land to Persons Thereon," see First 

Restatement Chapter 13, Topic 3 (emphasis added), states the general 
SC-2023-0537

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rule governing a landlord's liability to tenants for dangerous conditions 

that exist when a lease begins. That rule provides that, "[e]xcept as stated 

in §§ 357 to 362, a lessor of land is not liable for bodily harm caused to 

his lessee or others upon the land with the consent of the lessee or a sublessee by any dangerous condition whether natural or artificial which 

existed when the lessee took possession." First Restatement § 356 

(emphasis added). 

However, there are exceptions to this general rule governing a 

landlord's liability to a tenant. Specifically, §§ 360 and 361 of the First 

Restatement set forth two such exceptions for tenants injured on certain 

parts of the land over which the landlord retained control. The exception 

in § 360 of the First Restatement states that

"[a] possessor of land, who leases a part thereof and 

retains in his own possession 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 sub-lessee for bodily 

harm caused to them 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.) 
SC-2023-0537

11

Crucially, Comment a. to § 360 makes clear that the exception 

"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." (Emphasis added.) Thus, the First Restatement recognizes 

that a landlord owes a duty to protect a tenant from even an "open and 

obvious" danger when that danger exists on a part of the premises (1) 

over which the landlord retained control and (2) that a tenant "is entitled 

to use as appurtenant to the part leased to him [(e.g., stairs or 

elevators1)]." First Restatement § 360.

Comment a. to § 360 further contemplates that a 

"lessee's knowledge may ... put him in ... contributory fault" 

and states that "unless the danger is so great that it is 

unreasonable for the licensee to encounter it in view of the 

purpose of his visit or if knowing of the dangerous condition 

he fails to exercise that caution which a reasonable man 

would under the circumstances, the lessor is liable to him 

notwithstanding his knowledge of the actual conditions." 

1Because "[t]he Housing Authority made no attempt to argue and 

show that no factual dispute existed as to the status of the back-porch 

stairs" before the trial court in this case, Wallace, ____ So. 3d at ____, 

that issue was not litigated, and the Court of Civil Appeals never actually 

determined whether the principles set forth in § 360 should apply to that 

portion of the property. We similarly do not address whether this Court 

has adopted the Comments to § 360 setting forth examples of parts of the 

land that a tenant "is entitled to use as appurtenant to the part leased to 

him."
SC-2023-0537

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(Emphasis added.) In other words, under § 360, the "open and obvious" 

nature of a condition may be considered in determining whether a 

plaintiff was contributorily negligent and may bar recovery for a plaintiff 

who unreasonably encounters a known danger. The existence of an "open 

and obvious" danger does not, however, categorically relieve a landlord of 

his or her duty of care to tenants injured under the circumstances set 

forth in § 360.

Section 361 of the First Restatement provides another exception to 

the "open and obvious" doctrine and explains that

"[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 sub-lessee for bodily 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

"(a) could have discovered the condition and the 

risk involved, and

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

(Emphasis added.)2 Comment a. to § 361 states that the foregoing rule 

2Comment b. to § 361 provides examples of parts of the land that 

are "necessary to the safe use of the leased part" and explains as follows: 
SC-2023-0537

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"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."

(Emphasis added.) As with § 360, the "open and obvious" doctrine does 

not negate a landlord's duty of care to tenants under § 361. See Comment 

a. to § 361 ("As to the effect of the knowledge of the lessee and others 

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

Comment a. to § 360 ("[T]he lessor is liable to [a lessee] notwithstanding 

[the lessee's] knowledge of the actual conditions."). Similarly, the "open 

and obvious" nature of danger may properly be considered as part of the 

contributory-negligence analysis. Id.

Thus, under the traditional common-law principles of premises 

"The rule stated in this Section applies to the maintenance of 

walls, roofs, and foundations of an apartment house or office 

building. It applies also to any other part of the land, the 

careful maintenance of which is essential to the safe use of the 

rooms or offices or portion of land leased to the various 

lessees, such as the central heating, lighting, or water 

system."
SC-2023-0537

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liability embodied in the First Restatement, the openness and 

obviousness of a danger does not nullify a landlord's duty to protect a 

tenant, in certain circumstances, from dangerous conditions on parts of 

the land over which the landlord retained control, subject to the defense 

of contributory fault for the tenant's failure to "exercise that caution 

which a reasonable man would under the circumstances." Comment a. to 

§ 360.

However, to the extent that a tenant could be argued in some 

circumstances and some locations to be only a "gratuitous licensee" or a 

"business visitor," the principle set forth in § 340 of the First Restatement 

may instead apply.3 Section 340 provides the general rule for "open and 

obvious" dangers and states that landowners do not owe "licensees, 

whether business visitors or gratuitous licensees," a duty of care 

regarding dangerous conditions if the licensees "know of the condition 

3As explained below, some Alabama caselaw has treated tenants, in 

certain circumstances or when in certain locations, as licensees or 

invitees. See, e.g., Shelton v. Boston Fin., Inc., 638 So. 2d 824, 825 (Ala. 

1994) (plurality opinion) ("With respect to the common areas of an 

apartment complex, a tenant has the same legal rights as an invitee."). 
SC-2023-0537

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and realize the risk involved therein."4

B. The Second Restatement's Position on "Open and 

Obvious" Dangers

The Second Restatement was published in 1965. Sections 360 and 

361 of the Second Restatement are virtually identical to §§ 360 and 361 

4The First Restatement, published in 1934, embodies the 

traditional "no duty" rule of the "open and obvious" doctrine. See Ann K. 

Dittmeier, Premises Liability: The Disappearance of the Open and 

Obvious Doctrine, 64 Mo. L. Rev. 1021, 1025 (1999) (explaining that the 

First Restatement reflects the common-law "no duty" rule with respect to 

"open and obvious" dangers). Section 340 is entitled "General Liability of 

Possessors of Land to Licensees, Whether Business Visitors or 

Gratuitous Licensees," and states the rule as follows:

"A possessor of land is not subject to liability to his 

licensees, whether business visitors or gratuitous licensees, 

for bodily harm caused to them by any dangerous condition 

thereon, whether natural or artificial, if they know of the 

condition and realize the risk involved therein."

(Emphasis added.) 

In contrast to §§ 360 and 361, § 340 of the First Restatement does 

not include the additional requirement that the licensee be contributorily 

negligent for a landowner to avoid liability. However, Comment a. to 

§ 340 does acknowledge that some exceptions to the "no duty" rule in § 

340 for "open and obvious" dangers do exist. For instance, that comment 

states that the rule set forth in § 340 does not apply to "persons who enter 

land of another under a privilege which is independent of the consent of 

the possessor ..., as where a patron of a public utility enters land in its 

possession seeking its services to which, as a member of the public, he is 

entitled (see § 347, Comment a)." Comment a. to § 340.
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of the First Restatement. Indeed, as the Court of Civil Appeals correctly 

noted in its opinion, "substantially the same principles are present in the 

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

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." Wallace, ____ So. 3d at ____. 

However, by adopting § 343A, the Second Restatement did relax the 

general rule, embodied in § 340 of the First Restatement, that applies to 

"invitees" (or "business visitors") injured as a result of "open and obvious" 

dangers.5 Section 343A, which replaced § 340 of the First Restatement, 

provides, in pertinent part:

"(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." 

5In contrast to the First Restatement, the Second Restatement 

distinguishes between the general duty owed to licensees and "invitees" 

(a category akin to "business visitors" under the First Restatement) in 

the case of "open and obvious" dangers. The Second Restatement defines 

an "invitee" as "either a public invitee or a business visitor." § 332. A 

"business visitor," in turn, is defined as "a person who is invited to enter 

or remain on land for a purpose directly or indirectly connected with 

business dealings with the possessor of the land." Id. 
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(Emphasis added.) See also Michalski v. Home Depot, Inc., 225 F.3d 113, 

118-19 (2d Cir. 2000) (noting that, in response to widespread backlash to 

the "availability of the open and obvious doctrine as a complete and total 

defense to premises liability," the Second Restatement "adopted a 

different view, relating the liability of landowners for harm caused by 

obvious dangers to the foreseeability of that harm"). Thus, under § 343A, 

a landowner owes no general duty to protect invitees from "open and 

obvious" dangers "unless the possessor [or landowner] should anticipate 

the harm despite such knowledge or obviousness." (Emphasis added.)

C. Alabama Caselaw

In its opinion, the Court of Civil Appeals emphasized that, although 

our caselaw rejects § 343A of the Second Restatement's "more liberal 

approach" as to a landowner's general duty regarding "open and obvious" 

dangers, Wallace, ____ So. 3d at ____, the specific rules relating to 

landlords set forth in §§ 360 and 361 of both the First Restatement and 

the Second Restatement continue to reflect a "proper statement of 

Alabama law." Id. As discussed below, we agree with the Court of Civil 

Appeals' characterization of our controlling precedent.
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1. Alabama Courts Apply the General, Traditional Rule 

of the "Open and Obvious" Doctrine -- Rejecting 

§ 343A's Applicability to Invitees

This Court has repeatedly affirmed that, " 'as a general rule, an 

invitor will not be liable for injuries to an invitee resulting from a danger 

which was known to the invitee or should have been observed by the 

invitee in the exercise of reasonable care.' " Edwards v. Hammond, 510 

So. 2d 234, 236 (Ala. 1987) (quoting Quillen v. Quillen, 388 So. 2d 985, 

989 (Ala. 1980) (plurality opinion)) (emphasis omitted); see also Lamson 

& Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937); 

Sloss Iron & Steel Co. v. Tilson, 141 Ala. 152, 161, 37 So. 427, 429 (1904). 

Thus, we have adopted the general rule set forth in § 340 of the First 

Restatement, which provides that the openness and obviousness of a 

dangerous condition relieves landowners of a duty of care to "gratuitous 

licensees" and "business visitors" (or "invitees") whose privilege to enter 

the land depends on the landowner's consent. 

We acknowledge that this Court appeared to briefly deviate from 

this traditional formulation of the "open and obvious" doctrine when, in 

1989, we began relying on § 343A of the Second Restatement in several 

decisions concerning premises liability. See, e.g., Terry v. Life Ins. Co. of 
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Georgia, 551 So. 2d 385, 386 (Ala. 1989), Campbell v. Valley Garden 

Apartments, 600 So. 2d 240 (Ala. 1992), and Sisk v. Heil Co., 639 So. 2d 

1363, 1365 (Ala. 1994). 

However, we clearly returned to our former position when, in Ex 

parte Gold Kist, Inc., 686 So. 2d 260, 261 (Ala. 1996), and Sessions v. 

Nonnenmann, 842 So. 2d 649 (Ala. 2002), we expressly rejected the 

principle set forth in § 343A. In Gold Kist, 

"[the plaintiff], an employee of the United States 

Department of Agriculture ('USDA'), was injured while 

working at her job when she slipped in water, grease, and 

other substances that had accumulated on the floor of [the 

defendant]'s poultry processing plant. The USDA had an 

office and a break room at [the defendant's] plant to facilitate 

the inspection of poultry. [The plaintiff] had been working at 

the plant for nine months before the accident. In the accident 

she injured her back; she sued, alleging that the accident was 

caused by an unsafe or hazardous condition created by [the 

defendant]."

686 So. 2d at 261. The trial court instructed the jury that the plaintiff 

"could not recover if the condition that caused the accident was open and 

obvious," and the jury returned a verdict in favor of the defendant. Id. On 

appeal to this Court, the plaintiff, relying on § 343A of the Second 

Restatement, argued "that the trial court should have further explained 

that a possessor of land is not liable for harm caused by open and obvious 
SC-2023-0537

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danger 'unless the possessor should anticipate the harm despite such 

knowledge or obviousness.' " Id. This Court, however, was unpersuaded 

by the plaintiff's argument and concluded that § 343A was not "a correct 

statement of the law relating to the liability of a possessor of land." Id. 

The relevant holding in Sessions similarly concerned whether a 

possessor of land had a general duty to protect invitees from "open and 

obvious" dangers. In Sessions, the plaintiff, a plumbing subcontractor, 

sued the defendant, a general contractor, after the plaintiff "fell through 

an opening for a stairwell in the second floor of the building the parties 

were constructing." 842 So. 2d at 651. On appeal, this Court noted that 

there was "undisputed evidence that the hazard of the unguarded 

stairwell was open and obvious," id., and -- relying on Gold Kist -- 

concluded that the openness and obviousness of the hazard "negate[d] 

any general duty in the defendant general contractor to barricade the 

stairwell or to warn the subcontractor plaintiff of the hazard." Id. at 654 

(emphasis added).

Thus, despite the confusion created by some of our prior caselaw's 

reliance on § 343A of the Second Restatement, this Court -- when 

applicable -- continues to apply the traditional, and general, rule of 
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liability with regard to "gratuitous licensees" and "business visitors" (or 

"invitees") set forth in § 340 of the First Restatement.

2. Alabama Courts Recognize a Landlord's CommonLaw Duty to Tenants With Regard to "Open and 

Obvious" Conditions in Certain Circumstances

Importantly, cases dealing with the general liability of landowners 

to licensees or invitees do not ordinarily govern a landlord's specific 

liability to tenants injured on certain parts of the land over which the 

landlord retained control. As the Court of Civil Appeals' decision 

explains, in contrast to § 343A -- which has "no foundation in Alabama 

law" -- this Court has consistently embraced the specific rules set forth 

in §§ 360 and 361 of the First Restatement and the Second Restatement 

as "the long-standing law in Alabama." Wallace, ____ So. 3d at ____. 

For example, in 1936, we observed, in Prudential Insurance Co. of 

America v. Zeidler, 233 Ala. 328, 171 So. 634 (1936),

"that the general authorities -- state and federal -- in this 

jurisdiction are to the effect that, 'to the rule that a 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 
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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.' " 

233 Ala. at 333, 171 So. at 638 (citing Annotation, Liability of Landlord 

for Personal Injuries Due to Defective Halls, Stairways, And the Like, 

For Use of Different Tenants, 25 A.L.R. 1273 (1923) (discussing Roman 

v. King, 289 Mo. 641, 233 S.W. 161 (1921)), and Mudd v. Gray, 200 Ala. 

92, 75 So. 468 (1917)) (emphasis omitted; emphasis added).6 This view is 

entirely consistent with the principles reflected in § 360 of the First 

6Both Roman and Mudd are consistent with § 360. For instance, in 

Roman, the Missouri Supreme Court embraced the proposition that the

" '[m]ere continued use of a common passageway, after 

knowledge of its dangerous condition, is not of itself conclusive 

evidence of a lack of due care on the part of the tenant, since 

such knowledge does not require the tenant to desist from 

using same in a careful manner, nor render the careful use of 

same contributory negligence.' " 

289 Mo. 641, 233 S.W. at 165 (quoting Home Realty Co. v. Carius, 189 

Ky. 228, 224 S.W. 751, 752 (1920)).

In Mudd, this Court stated that "[a] reading of the authorities 

would clearly disclose that the obligation of the landlord ... as to keeping 

in repair the stairway used in common by the different tenants and 

controlled by the landlord, extended not only to the tenant, but to his 

invitees, whether expressly or by implication." 200 Ala. at 94, 75 So. at 

470.
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Restatement and the Second Restatement. 

More recently, in Hancock v. Alabama Home Mortgage Co., 372 So. 

2d 858, 858 (Ala. 1979) ("Hancock I"), we recognized that the rule set 

forth in § 360 of the Second Restatement "has long been the rule in this 

State." Applying the principles in § 360, we reversed the trial court's 

summary judgment in favor of the defendant landlord and remanded the 

case for further proceedings. Id. In a subsequent appeal, we explained 

that the rule concerning a landlord's liability with respect to certain areas 

over which the landlord retained control, as described in Zeidler, 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.' " 

Hancock v. Alabama Home Mortg. Co., 393 So. 2d 969, 970 (Ala. 1981) 

("Hancock II") (quoting Preston v. LaSalle Apartments, 241 Ala. 540, 543, 

3 So. 2d 411, 413 (1941)). 

Likewise, our Court has expressly affirmed the rule set forth in 

§ 361. See Chambers v. Buettner, 295 Ala. 8, 12, 321 So. 2d 650, 653 

(1975).

Again, in Coggin v. Starke Bros. Realty Co., 391 So. 2d 111, 113 
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(Ala. 1980), a plurality of this Court affirmed the rules set forth in §§ 360 

and 361. In that case, the plaintiff tenant slipped and fell down the back 

steps to her apartment that "were a portion of the common area of the 

rental property used by [the plaintiff tenant] and the other tenants." Id. 

at 112. The plaintiff tenant admitted that she had noticed "that the back 

steps leading up to her dwelling were 'steep and narrow' and lacked a 

handrail" before her fall. Id. The trial court entered a summary judgment 

in favor of the defendant landlord. This Court reversed and concluded 

that the "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 [the plaintiff tenant] is 

entitled to have submitted, pursuant to appropriate instructions, for a 

jury's determination." Id. at 113.7 As the Court of Civil Appeals' decision 

7And there are other Alabama cases applying the principles from 

§§ 360 and 361. For instance, in Berness v. Regency Square Assocs., Ltd., 

514 So. 2d 1346, 1348 (Ala. 1987), we similarly reversed a trial court's 

summary judgment in favor of a defendant landlord after explaining that, 

in contrast to our decisions applying the general "open and obvious" rule, 

the plaintiff tenant's knowledge of the dangerous condition in that case 

raised a factual question regarding whether she was contributorily 

negligent rather than a legal question involving the defendant landlord's 

"threshold duty to warn" of the danger posed by the dangerous condition. 
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correctly notes, the present case "factually resembles Coggin regarding 

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

leased premises ...." Wallace, ____ So. 3d at ____.

Thus, when applicable, this Court has repeatedly, and expressly, 

affirmed the substantive propositions in §§ 360 and 361 of the First 

Restatement and the Second Restatement. 

II. This Court's Decision in Daniels

With the above background in mind, we now turn to this Court's 

decision in Daniels, supra. In Daniels, the plaintiff, a resident of an 

apartment complex owned and managed by the defendants, was "walking 

on the sidewalk from her apartment to the mail kiosk for her building to 

retrieve her mail." 314 So. 3d at 1215. According to the plaintiff, because 

of rain earlier that day, mud had accumulated on the sidewalk. Id. The 

In Nayman v. Tracey, 599 So. 2d 604, 605 (Ala. 1992), we again 

emphasized that the parties in that case were "related as landlord and 

tenant and that [the plaintiff tenant] contend[ed] that the area where he 

was injured was a 'common' area over which [the defendant landlord] 

retained control." Accordingly, we reversed a trial court's summary 

judgment in favor of defendant landlord after concluding that §§ 360 and 

361, as well as our prior caselaw, recognize a landlord's duty to maintain 

the common areas of an apartment complex in a reasonably safe 

condition in certain circumstances. Id. at 606-07.
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plaintiff alleged that, when she stepped off the sidewalk curb, she slipped 

and fell -- breaking both of her knees. Id. The plaintiff sued, alleging that 

the defendants "had breached duties 'to ensure that the premises of the 

apartment complex were reasonably safe for tenants' and 'to not create 

and/or allow dangerous conditions on the premises of the apartment 

complex.' " Id. 

The defendants moved for a summary judgment, arguing, among 

other things, that "they were not liable for [the plaintiff's] injuries 

because, they argued, the alleged danger created by mud was open and 

obvious." Id. In support of their summary-judgment motion, the 

defendants attached the affidavit of the apartment complex's community 

manager. Id. at 1216. In that affidavit, the community manager testified 

"that a diligent search had been conducted of the records of 

the apartment complex and that no record was located 

concerning complaints about mud accumulating on the 

sidewalk near the area where [the plaintiff] fell or other 

complaints regarding the general condition of the sidewalk 

before [the plaintiff's] fall .... According to [the community 

manager], neither [the plaintiff] nor any other tenant had 

reported a problem with the condition of the sidewalk to her. 

[The community manager] explained that, in addition to 

walking on the sidewalk to retrieve the mail, [the plaintiff] 

could walk on the street, walk through a breezeway, or drive 

her car to the mail kiosk and park in front of it in one of the 

spaces provided for that purpose."
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Id. (emphasis added). The defendants additionally submitted "deposition 

testimony from [the plaintiff] regarding her knowledge of the condition 

of the sidewalk, her navigation of the sidewalk, and the circumstances 

surrounding her accident." Id. 

In response, the plaintiff acknowledged that she was aware of "the 

danger created by the accumulated mud on the sidewalk and curb." Id. 

at 1217. However, she argued that this knowledge did not foreclose her 

negligence and wantonness claims because the defendants "should have 

anticipated her being injured by the danger because, she said, they did 

not provide her with a 'reasonable and safe alternative' means for 

retrieving mail on a rainy day." Id. Further, she argued that the 

defendants were "liable for her injuries because, she said, they knew or 

should have known about the danger created by the mud on the sidewalk, 

which, she said, was 'plainly visible.' " Id. In support of this proposition, 

the plaintiff cited Campbell, supra, which in turn quoted § 343A of the 

Second Restatement and held that a plaintiff's knowledge of the slippery 

condition of a sidewalk did not bar her negligence claim. Daniels, 314 So. 

3d at 1217; Campbell, 600 So. 2d at 241-42. 
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The defendants replied, arguing that "Campbell had been overruled 

by Ex parte Gold Kist, Inc., 686 So. 2d 260, 261 (Ala. 1996) (declining to 

adopt Restatement (Second) of Torts § 343A (1965), which was quoted in 

Campbell ....), and that, consequently, [the plaintiff's] reliance on 

Campbell [was] misplaced." Daniels, 314 So. 3d at 1218 (footnote 

omitted). 

The trial court agreed with the defendants and entered a summary 

judgment in their favor. On appeal, we affirmed the trial court's 

judgment. In our decision, we noted that, in Gold Kist and Sessions, this 

Court had " 'decline[d] to adopt § 343A as a correct statement of the law 

relating to the liability of a possessor of land.' " Id. at 1222 (quoting Gold 

Kist, 686 So. 2d at 261). We further stated that, "[t]o the extent that ... 

Campbell, supra[,] ... and other cases citing, quoting, and/or applying the 

Restatement (Second) of Torts § 343A may hold otherwise, they are 

overruled." Id. at 1225. 

As to the facts in Daniels, we noted (1) that it was undisputed that 

the condition of the muddy sidewalk and curb created an "open and 

obvious" danger and (2) that the plaintiff admitted "that she appreciated 

the danger created by the mud when she testified that she typically 
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avoided the danger by hopping over the mud." Id. (emphasis added). 

Therefore, we determined that the defendants did not owe the plaintiff 

"any general duty to mark the sidewalk and curb where the mud had 

accumulated or to warn [the plaintiff] of the danger ...." Id. (emphasis 

added). We also held that the plaintiff had failed to demonstrate that the 

defendants had "breached a special duty, as distinguished from the 

general duty ... already discussed." Id. Specifically, we held that, because 

the plaintiff had failed to cite any relevant legal authority for her claim 

that a "landlord's safety manual imposes a special duty of care on the 

landlord to protect tenants from open and obvious dangers," she had 

"waived any challenge to the summary judgment in this regard." Id. at 

1226. We further stated that, "[t]o the extent that [the plaintiff] may 

argue that [the defendants] breached a special duty by failing to provide 

a safe, alternative route for [the plaintiff] to retrieve the mail," that 

"alleged special duty rests upon the principal of law this Court rejected 

in Gold Kist and, thus, is unavailing." Id. 

III. Daniels Did Not Reject the Principles Set Forth in §§ 360 and 

361 of the First Restatement and the Second Restatement

As noted, the Housing Authority argues that any duty imposed by 
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§§ 360 and 361 was abrogated by our decision in Daniels. After careful 

consideration, we see no reason to conclude that this Court's decision in 

Daniels upended our entire body of caselaw concerning the separate and 

distinct duties described in §§ 360 and 361 of the First Restatement and 

the Second Restatement. 

First, the plaintiff in Daniels based her argument on § 343A of the 

Second Restatement. In concluding that the defendants in Daniels owed 

no general duty to the plaintiff with respect to the danger posed by the 

muddy sidewalk, this Court expressly relied on (1) Gold Kist's holding 

that we have not adopted " '§ 343A as a correct statement of the law 

relating to the liability of a possessor of land,' " Daniels, 314 So. 3d at 

1222 (quoting Gold Kist, 686 So. 2d at 261), and (2) this Court's 

subsequent recognition in Sessions that the general rule set forth in 

§ 343A of the Second Restatement "is not the law in Alabama." Id. at 

1224-25. Importantly, the holdings in Gold Kist and Sessions concern 

only whether a possessor of land owes his or her invitee a general duty to 

protect the invitee against known or obvious conditions on the land if "the 

possessor should anticipate the harm despite such knowledge or 

obviousness." §343A. In neither case did we mention -- much less reject 
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-- the specific rules of liability embodied in §§ 360 and 361 of the First 

Restatement and the Second Restatement that govern a landlord's duty 

of care to tenants in certain circumstances.

Further, our opinion in Daniels expressly noted that the plaintiff in 

that case had testified that "she typically avoided the danger by hopping 

over the mud," 314 So. 3d at 1225, and that there was evidence indicating 

that, "in addition to walking on the sidewalk to retrieve the mail, [the 

plaintiff] could walk on the street, walk through a breezeway, or drive 

her car to the mail kiosk and park in front of it in one of the spaces 

provided for that purpose." 314 So. 3d at 1216.8

8As discussed above, in Hancock II, this Court explained that the 

specific rule concerning a landlord's liability with respect to certain areas 

over which the landlord retained control 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.' " 393 So. 2d at 970 (quoting Preston, 

241 Ala. at 543, 3 So. 2d at 413) (emphasis added). As noted above, in 

Daniels, there was evidence indicating that other means of "egress and 

ingress" were available to the plaintiff. Thus, the result in Daniels is 

consistent with the underlying purpose of the rules set forth in §§ 360 

and 361. 

As illustrated by Daniels, if the specific conditions set forth in §§ 

360 and 361 do not apply, a tenant may be treated as an invitee in areas 

outside of the actual leased premises. Daniels, 314 So. 3d at 1222 n.4 

(" 'With respect to the common areas of an apartment complex, a tenant 
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Our decision in Daniels also did not -- expressly or implicitly -- 

overrule this Court's decisions in Hancock I, Chambers, or Coggin, supra, 

which recognized that the rules set forth in §§ 360 and 361 are well 

established under Alabama law. As the Court of Civil Appeals further 

explained in its opinion:

"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. 

... [T]he supreme court gave no indication that [Coggin or 

Hancock I] 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."

Wallace, ____ So. 3d at ____. 

For these reasons, we agree with the Court of Civil Appeals that 

this Court, in Daniels, did not intend to overrule long-standing Alabama 

law recognizing the specific rules of liability set forth in §§ 360 and 361. 

has the same rights as an invitee.' ") (quoting Shelton, 638 So. 2d at 825); 

id. at 1225 ("Applying Sessions [(an invitee case)] to the facts of this case 

...."). 
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Thus, although our holding in Daniels is sound, we caution that it should 

not be interpreted as rejecting a landlord's duties under the 

circumstances described in §§ 360 and 361 of the First Restatement and 

the Second Restatement. Moreover, because the Housing Authority failed 

to raise a genuine issue of material fact as to whether the principles set 

forth in §§ 360 and 361 apply to the circumstances in this case, we 

conclude that the Court of Civil Appeals properly held that the Housing 

Authority was not entitled to a judgment as a matter of law.

Conclusion

Based on the foregoing, we conclude that there is no conflict 

between the Court of Civil Appeals' decision in the present case and our 

prior decision in Daniels. We therefore affirm the judgment of the Court 

of Civil Appeals.

AFFIRMED.

Parker, C.J., and Shaw, Stewart, and Mitchell, JJ., concur. 

Bryan and Mendheim, JJ., concur in the result. 

Sellers, J., dissents, with opinion, which Wise, J., joins.
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SELLERS, Justice (dissenting).

I agree with Judge Hanson's dissenting opinion, joined by Judge 

Fridy, which concludes that the Court of Civil Appeals' ruling in this case 

conflicts with this Court's recent decision in Daniels v. Wiley, 314 So. 3d 

1213 (Ala. 2020). Accordingly, I respectfully dissent from this Court's 

decision to affirm the judgment of the Court of Civil Appeals.

In Campbell v. Valley Garden Apartments, 600 So. 2d 240 (Ala. 

1992), which was overruled by Daniels, supra, this Court reversed a 

summary judgment that had been entered in favor of a landlord in a 

premises-liability action brought by one of the landlord's tenants after 

she slipped and fell on a slippery steel plate that spanned a drainage 

ditch on her way to the garbage dumpster that served her apartment. 

The trial court in Campbell had entered the summary judgment in favor 

of the landlord based on the fact that the tenant had knowledge of the 

slippery condition of the steel plate and, apparently, the implicit finding 

that she was contributorily negligent as a matter of law in choosing to 

walk over it. On appeal, this Court noted that "[a] landlord has a duty to 

maintain common areas in a reasonably safe condition in order to avoid 

liability for injury to a tenant or a guest." 600 So. 2d at 241. In support, 
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the Court in Campbell cited Hancock v. Alabama Home Mortgage Co., 

393 So. 2d 969 (Ala. 1981), which acknowledged an exception to the 

general rule that tenants take leased premises subject to existing defects:

" '[T]he 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.' "

393 So. 2d at 970 (quoting Prudential Ins. Co. of America v. Zeidler, 233 

Ala. 328, 333, 171 So. 634, 638 (1937)). The Court in Campbell also 

pointed to the Restatement (Second) of Torts § 343A (Am. L. Inst. 1965), 

which provides that the possessor of land is generally not liable for harm 

caused to invitees if the danger that caused the harm was "known or 

obvious" to the injured invitee "unless the possessor should anticipate the 

harm despite such knowledge or obviousness." Based on Hancock and 

the Restatement, the Court in Campbell concluded that the landlord in 

that case had a duty to remedy the dangerous condition caused by the 

slippery steel plate even though that danger was known by the tenant. 

The Court noted that there was evidence suggesting that the tenant had 
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no reasonable alternative to walking over the plate to reach the garbage 

dumpster. Thus, according to the Court, questions of her contributory 

negligence or assumption of the risk were for a jury to decide and were 

not an appropriate basis for a summary judgment. 600 So. 2d at 242. 

Campbell arguably would support the position of the plaintiff in the 

present case, who fell while descending stairs with no safety rail leading 

from his apartment. See also Coggin v. Starke Bros. Realty Co., 391 So. 

2d 111 (Ala. 1980) (plurality opinion) (cited by the Court of Civil Appeals 

in the present case and reversing a summary judgment that had been 

entered in favor of a landlord in an action with facts similar to those in 

this case). But Campbell has since been overruled, and its reasoning has 

been reasoning rejected by this Court.

In Daniels, supra, a tenant, Daniels, sued her landlord after she 

slipped in mud that had accumulated on the sidewalk leading from her 

apartment to the mail kiosk for her apartment building. The presence of 

the mud was open and obvious, and Daniels admitted to knowledge of it. 

The trial court in Daniels entered a summary judgment in favor of the 

landlord. On appeal, Daniels pointed to Campbell, supra, in support of 

an argument that her landlord could not escape liability based solely on 
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the open and obvious nature of the danger and her awareness of that 

danger because, she asserted, the landlord should have anticipated that 

tenants would walk through the accumulated mud in order to retrieve 

their mail. However, 

"contrary to Daniels's contention, this Court in Sessions [v. 

Nonnenmann, 842 So. 2d 649 (Ala. 2002),] 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."

314 So. 3d at 1224-25. The Court in Daniels expressly overruled 

Campbell and other landlord-liability cases to the extent that they held 

otherwise. And, because the accumulation of mud that caused Daniels's 

injuries was open and obvious (indeed, the danger was known and 

appreciated by Daniels), the landlord "did not owe Daniels any general 

duty to mark the sidewalk and curb where the mud had accumulated or 

to warn Daniels of the danger." Id. at 1225. The Court also rejected 

Daniels's position to the extent that she claimed that her landlord had 

"breached a special duty by failing to provide a safe, alternative route for 

Daniels to retrieve her mail" because such an argument was based on the 

already rejected concept that a landlord has a duty to remedy open and 
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obvious dangers if the landlord has reason to anticipate that a tenant will 

be injured notwithstanding the open and obvious nature of the danger. 

Id. at 1226.

Although the Court in Daniels expressly discussed (and rejected) § 

343A of the Restatement (Second) of Torts, I cannot, as the main opinion 

does, read the opinion in Daniels as affecting only the relevance of that 

particular Restatement provision and not precedent applying §§ 360 and 

361 of the Restatement (First) of Torts (Am. L. Inst. 1934) and the 

Restatement (Second) of Torts. The Court in Daniels clearly stated that 

landlords do not have a duty to remedy dangerous conditions that are 

open and obvious and rejected Daniels's argument that the lack of a safer 

alternative route to the apartment building's mailboxes served to impose 

a special duty on the landlord to remedy the danger resulting from the 

accumulation of mud. I do not see any meaningful distinction between 

Daniels and the present case.

Moreover, it appears to me that Campbell, supra, which was 

undisputedly expressly overruled in Daniels, relied on precedent 

applying the concepts embodied in §§ 360 and 361 of the First 

Restatement and the Second Restatement, upon which the main opinion 
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in the present case relies. Specifically, Campbell cited Hancock v. 

Alabama Home Mortgage Co., 393 So. 2d 969 (Ala. 1981) ("Hancock II"), 

for the proposition that landlords have a duty to maintain common areas 

in a safe condition. Campbell, 600 So. 2d at 241. The Court in Hancock 

II referenced an earlier opinion involving the same parties in that case, 

Hancock v. Alabama Home Mortgage Co., 372 So. 2d 858 (Ala. 1979) 

("Hancock I"), which, as the main opinion points out, stated that the rule 

set out in § 360 of the Restatement (Second) of Torts "has long been the 

rule in this State." 372 So. 2d at 858. Thus, it seems to me that, in 

overruling Campbell, the Court in Daniels rejected the basis of imposing 

a duty on landlords to remedy open and obvious dangers that the 

majority opinion in this case embraces. 

In sum, I cannot construe Daniels's conclusion that landlords do not 

have a duty to remedy open and obvious dangers as leaving unaffected 

prior opinions that can be read to suggest the opposite conclusion, albeit 

with references to portions of the Restatement not expressly discussed in 

Daniels. This includes Coggin, supra, upon which the Court of Civil 

Appeals relied in reversing the trial court's judgment in the present case 

and which cited Hancock I and §§ 360 and 361 of the Restatement in 
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reversing a summary judgment in favor of a landlord that had been sued 

by a tenant who fell from a staircase lacking a handrail. Because I 

believe that Daniels overruled prior decisions suggesting that landlords 

have a duty to remedy open and obvious dangers, I respectfully dissent. 

I do not mean to suggest that landlords might not be required under other 

laws and regulations to repair their properties to remedy defects posing 

a danger to tenants. But those other rules, under Alabama law and based 

on Daniels, cannot make a landlord an insurer of a tenant's actions on 

the property.

Wise, J., concurs.