Brandy Andler v. Clear Channel Broadcasting, Inc
670 F.3d 717
6th Cir.2012Background
- Plaintiff-appellant Andler sues Clear Channel for premises liability and loss of earning capacity.
- Andler fell into a grass-covered hole at Clear Channel’s campground during a festival, allegedly making the hole open and obvious or requiring duty of care.
- Pre-injury, Andler worked part-time; post-injury she worked as a full-time manicurist/pedicurist with higher reported earnings in later years.
- District court excluded expert Selby's testimony on lost earning capacity as unduly speculative; prior panel had reversed on open-and-obvious duty instruction.
- Jury awarded Andler $200,000 with no explicit allocation for lost earning capacity; Clear Channel appeals on liability and evidentiary rulings; Andler cross-appeals the evidentiary exclusion.
- This court affirms liability ruling, reverses the evidentiary exclusion as misapplied, vacates the verdict, and remands for a partial new trial on damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Status of Andler as invitee or licensee | Andler was an invitee by providing benefit as a social guest at paying campers. | Andler was a licensee once she left the initial area, reducing duty to ordinary care only. | Ambiguity for open issues; jury could find invitee status; district court erred in limiting. |
| Open and obvious danger defense | Hole was not open and obvious; evidence supports duty to exercise care. | Hole was open and obvious; no duty to warn. | Jury question on observability; there was genuine fact dispute; not a JMOL issue. |
| Admissibility of Selby's lost earning capacity testimony | Selby’s projections are admissible; lost earning capacity is not limited to pre-injury earnings. | Selby’s use of averages and speculative methods was improper. | District court abused discretion in excluding; testimony not Unrealistic; admissible with cross-examination. |
| Appropriate standard for lost earning capacity damages | Damages reflect lifetime earning potential, not annual wages; pre-injury earnings need not control. | Damages must closely track pre-injury earnings and be proven with reasonable certainty. | Damages methodology proper; projections permissible; not bound to exact pre-injury earnings. |
Key Cases Cited
- Shump v. First Continental-Robinwood Assocs., 644 N.E.2d 291 (Ohio 1994) (imposes landlord/tenant-like duty for social guests)
- Ray v. Ramada Inn N., 869 N.E.2d 95 (Ohio Ct. App. 2007) (hotel guests’ visitors treated as invitees)
- Uddin v. Embassy Suites Hotel, 848 N.E.2d 519 (Ohio Ct. App. 2005) (visitors of paying guests as invitees)
- Provencher v. Ohio Dep’t of Transp., 551 N.E.2d 1257 (Ohio 1990) (indirect benefits can confer invitee status)
- Hissong v. Miller, 927 N.E.2d 1161 (Ohio Ct. App. 2010) (open-and-obvious observability is a fact-specific issue)
- Bartlebaugh v. Penn. R. Co., 78 N.E.2d 410 (Ohio Ct. App. 1948) (earning-capacity damages may be recoverable despite current earnings)
- Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18 (2d Cir. 1996) (avoid using unrealistic assumptions in earning-capacity projections)
- Eastman v. Stanley Works, 907 N.E.2d 768 (Ohio Ct. App. 2009) (premises liability damages and proof of impairment guidance)
- Cappello v. Duncan Aircraft Sales of Florida, Inc., 79 F.3d 1465 (6th Cir. 1996) (avoid projecting based on lifetime earnings inconsistent with position)