Lerone Ramson appeals from a summary judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Dwonna Brittin. We affirm.
The record, when viewed in a light most favorable to Ramson, the nonmovant, see Johnson v. Jester, 941 So.2d 307, 312 (Ala. Civ.App.2006), shows that Ramson occasionally would perform yard work for Brittin at her home to earn extra money. On August 15, 2009, Ramson went to Brittin's home to cut tree limbs. He took with him an extension ladder that reached as high as 14 feet, a smaller 6-foot ladder, and cutting tools referred to as "loppers" and "a little hand saw." Ramson did not take with him a tie-off rope or harness to prevent him from falling.
After witnessing Ramson climb the extension ladder to cut the first tree limb, Brittin expressed concern at the height of the job. Ramson thus asked Brittin to hold the ladder, which she did. After successfully cutting the first limb, Ramson climbed down, moved the ladder, and climbed back up to cut a second limb, with Brittin continuing to hold the ladder. Ramson repeated this maneuver a third time. Ramson, however, did not assure that Brittin was holding the ladder on the third occasion before he started cutting the third limb. As it turns out, Brittin had walked off to gather the previously cut limbs, leaving the ladder without additional support. While Ramson was reaching out to cut the third limb, "figur[ing] that [Brittin] should have been holding the ladder," the extension ladder fell from beneath him. Ramson grabbed the branch he was cutting and yelled for Brittin. When Brittin returned, because Ramson did not believe Brittin could lift the extension ladder, Ramson instructed Brittin to gather the six-foot ladder he had brought with him and to place it underneath him in order to break his fall. After Brittin went and retrieved the smaller ladder and placed it underneath Ramson, Ramson released his grip, which caused him to fall. Ramson broke both of his wrists when he fell.
On October 14, 2009, Ramson filed a complaint against Brittin, alleging that Brittin had negligently or wantonly failed to secure the ladder. Brittin filed her answer on November 13, 2009, denying the material allegations of the complaint and asserting various affirmative defenses, including contributory negligence. After deposing Ramson, Brittin filed a motion for a summary judgment on April 5, 2010,
Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1103-04 (Ala.Civ.App.2001).
On appeal, Ramson argues that the trial court erred in entering a summary judgment on his negligence claim for the same reasons he asserted in the trial court.
Assuming that Ramson's claim is governed by negligence principles, see Orr v. Turney, 535 So.2d 150 (Ala.1988), that Brittin voluntarily assumed a duty to hold the ladder, see Cox v. Dick, 31 N.C. App. 565, 568, 229 S.E.2d 843, 845 (1976) ("When defendant agreed to hold the ladder for plaintiff he assumed and therefore owed plaintiff a legal duty."), and that Brittin breached that duty by walking away from the ladder while Ramson cut the third limb, see Wuellner v. Crescent Planing Mill Co., 303 Mo. 38, 259 S.W. 764 (1923) (foreman breached duty of care by releasing hold on ladder thereby causing it to fall), those facts alone do not constitute negligence. In addition, Ramson would have to prove proximate causation and damages. Jones Food Co. v. Shipman, 981 So.2d 355, 361 (Ala.2006). In her summary-judgment motion, Brittin did not
After carefully reviewing the record, we conclude that Ramson did not respond to Brittin's proximate-cause argument. His brief filed with the trial court does not even mention the argument, much less attempt to explain why it should not prevail. Although a lack of response will not automatically result in the entry of a summary judgment, a party will risk having a summary judgment entered against him or her if granting the summary-judgment motion is appropriate on the merits. Ex parte Oden, 617 So.2d 1020 (Ala.1992). As noted, the trial court did not state its basis for entering the summary judgment. In such cases, we must presume that the trial court relied on every ground asserted in the summary-judgment motion. See Soutullo v. Mobile County, 58 So.3d 733 (Ala.2010). Hence, in this case, we presume the trial court found the proximate-cause argument made by Brittin to be meritorious.
We note that, "[t]ypically, the question of proximate causation is a question of fact to be resolved by the jury; that question must be decided by the jury if reasonable inferences from the evidence support the plaintiff's claim." Miller v. Cleckler, 51 So.3d 379, 383 (Ala.Civ.App. 2010). The fact that Brittin had twice held the ladder without incident while Ramson had performed the same cutting maneuver could imply that she would have been able to safely hold the ladder a third time so as to avoid the accident, making proximate causation a question for the jury. However, Ramson has not made that argument, or any other argument regarding the proximate-cause issue, on appeal.
Because we affirm the summary judgment on that ground, we need not discuss
AFFIRMED.
PITTMAN, BRYAN, and THOMAS, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.