Brandy ANDLER, Plaintiff-Appellant/Cross-Appellee, v. CLEAR CHANNEL BROADCASTING, INC., Defendant-Appellee/Cross-Appellant.
Nos. 10-3264, 10-3266.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 1, 2011. Decided and Filed: Feb. 29, 2012.
670 F.3d 717
Before: MARTIN, MOORE, and COOK, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Plaintiff-Appellant Brandy Andler appeals the district court‘s decision to exclude the testimony of her expert witness regarding loss of future earning capacity in her personal injury lawsuit against Defendant-Appellee Clear Channel Broadcasting, Inc. (“Clear Channel“). Clear Channel cross-appeals the denial of its motion for judgment as a matter of law on the issue of liability. Because the district court properly applied Ohio tort law, we AFFIRM the denial of Clear Channel‘s motion. We REVERSE the district court‘s ruling on the evidentiary issue as an abuse of discretion, because the proffered expert testimony was not unreasonably speculative as a matter of law and the district court appears to have misunderstood the concept of lost earning capacity. We VACATE the jury‘s award and REMAND for a partial new trial on the issue of damages.
I. BACKGROUND
In July 2004, Andler and her boyfriend Eric Heitzer attended the annual Jamboree-in-the-Hills country music festival in Belmont County, Ohio. On the evening of July 13, Andler and Heitzer visited friends staying at a nearby campground owned and operated by Clear Channel as part of the festival. Neither Andler nor Heitzer were staying at the campground. Later that night, they left their friends and walked around the grounds, first stopping to listen to some campers play music and then, around 10:00 p.m., walking towards the restrooms. On their way to the restrooms, Andler stepped off the path on which she was walking and fell into a six-to-eight-inch grass-covered hole, breaking several bones in both of her feet. Andler contends that the hole was not visible because the grass growing in it reached the same height as the grass on the surrounding land. As a result of her fall, Andler developed arthritis in her feet.
Andler brought suit under Ohio tort law, seeking damages for medical expenses and loss of earning capacity. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year. According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she has worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.
Clear Channel moved for summary judgment on the grounds that it did not
At trial, Andler presented the videotaped deposition of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS“) figures, as to Andler‘s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same. When factoring in the effects of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler‘s damages for lost earning capacity totaled $232,346.1
After trial, the jury awarded Andler $200,000, including $148,000 for future economic damages.2 Clear Channel appealed, and a prior panel of this court reversed on the grounds that the district court erred in refusing to instruct the jury on the “open and obvious danger” doctrine. Andler v. Clear Channel Broad., Inc., 342 Fed.Appx. 100 (6th Cir.2009).
Prior to the start of the second trial, the district court granted Clear Channel‘s motion in limine to exclude Selby‘s expert testimony as unduly speculative. The district court subsequently refused Andler‘s offer to have Selby testify in person and rely solely on Andler‘s actual historical earnings rather than BLS figures. Although Andler testified that her injuries prevented her from performing certain procedures that would have earned her an additional $50 per week, the court instructed the jury that it could not award any damages for loss of earning capacity because Andler had not produced evidence on reducing future earnings to present value. Clear Channel moved for judgment as a matter of law, again arguing that Andler was a licensee and that the hole was open and obvious, which the court denied. The jury awarded Andler $10,000, which did not include any recovery for lost earning capacity.3
Andler timely appealed the exclusion of Selby‘s testimony, contending that his calculations of lost earning capacity were not unrealistically speculative. Clear Channel cross-appealed the denial of its motion for judgment as a matter of law, arguing that the district court erred in finding both that Andler was an invitee rather than a licensee and that the open-and-obvious doctrine did not bar her claim.
II. ANALYSIS
A. Standard of Review
We review a district court‘s evidentiary rulings, including the decision to exclude expert testimony, for an abuse of discretion. Pride v. BIC Corp., 218 F.3d 566, 575 (6th Cir.2000) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). We review de novo the denial of a motion for judgment as a matter of law. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007). Such a motion should “be granted only if in viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion, in favor of the moving party.” Id. (quoting Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001)).
B. Clear Channel‘s Cross-Appeal
1. Licensee vs. Invitee
Under Ohio premises liability law, a landowner‘s duty to someone who has come onto his land depends on whether the person is a trespasser, licensee, or invitee. See, e.g., Gladon v. Greater Cleveland Reg‘l Transit Auth., 75 Ohio St.3d 312, 662 N.E.2d 287, 291 (1996).4 With invitees, the landowner has a duty to exercise ordinary care by maintaining the premises in a safe condition. Provencher v. Ohio Dep‘t of Transp., 49 Ohio St.3d 265, 551 N.E.2d 1257, 1258 (1990). With licensees, the landowner need only refrain from “wantonly or willfully causing injury” and is not liable for mere negligence. Id.
An invitee is someone who enters another‘s property “by invitation, express or implied, for some purpose which is beneficial to the owner.” Id. A licensee, by contrast, enters “for his own pleasure or benefit, and not by invitation.” Id. Andler was thus an invitee rather than a licensee if she provided some “economic (or tangible) benefit” to Clear Channel. Id. at 1259.5 When the facts are undisputed, an entrant‘s status is a question of law for the court to determine. Wiley v. Nat‘l Garages, Inc., 22 Ohio App.3d 57, 488 N.E.2d 915, 922 (1984).
The Ohio Supreme Court has not directly addressed the status of campers’ guests for the purposes of premises liability. That court has held that a landlord owes the same duty of care to social guests of a tenant as to the tenant himself. Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 644 N.E.2d 291, 296 (1994). The landlord/tenant relationship is distinguishable, but Shump suggests that the Ohio Supreme Court would likely adopt Andler‘s position.
Further, the Ohio Court of Appeals has held that visitors of paying hotel guests are invitees. Ray v. Ramada Inn N., 171 Ohio App.3d 1, 869 N.E.2d 95, 103 (2007); Uddin v. Embassy Suites Hotel, 165 Ohio App.3d 699, 848 N.E.2d 519, 523 (2005). A hotel owner “reasonably contemplates that members of the public will enter at the invitation of the guests, and the hotel benefits both directly and indirectly from accommodating its paying guests in that respect.” Ray, 869 N.E.2d at 103. In the absence of a direct statement on the issue from the state supreme court, decisions of state appellate courts are “[r]elevant data” that “should not be disregarded unless we are presented with persuasive data that the [Ohio] Supreme Court would decide otherwise.” Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir.2001) (quoting Kingsley Assocs. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir.1995)). Shump undercuts Clear Channel‘s argument that we should ignore Ray and Ud-
Although she was not a paying guest at the campsite, Andler was visiting her friends who had paid to camp and thus provided an economic benefit to Clear Channel. Like a hotel, a campground benefits by accommodating its paying guests’ desires to have visitors. A campground that discourages visitors by declining to exercise ordinary care for their safety may lose paying guests. This reasoning is particularly applicable when the campground is part of a large social event like a music festival where visitors are expected. Clear Channel thus received some economic benefit from Andler‘s presence at its campground on July 14. The benefit may have been somewhat indirect, but it was not intangible. Cf. Provencher, 551 N.E.2d at 1258-59 (rejecting invitee status for a motorist injured at a highway rest stop because the increased highway safety the state achieved by providing such rest stops was only an intangible benefit).6
Clear Channel further argues that, even if Andler was an invitee when visiting her friends’ campsite, she lost her invitee status when she left to listen to music and then to walk to the restroom and was thus a licensee at the time of her fall. A person maintains invitee status so long as “she is on the part of the land to which the invitation extends and conforms her conduct to the terms of the invitation.” Conniff v. Waterland, Inc., 118 Ohio App.3d 647, 693 N.E.2d 1127, 1129 (1997) (citing Gladon, 662 N.E.2d at 291-92). Determining the scope of the invitation is an objective inquiry that considers factors such as the landowner‘s conduct, the nature of the business conducted on the premises, and the arrangement and design of the premises. Id. (citing Blair v. Ohio Dep‘t of Rehab. & Corr., 61 Ohio Misc.2d 649, 582 N.E.2d 673, 677-678 (Ohio Ct.Cl.1989)).
Because Andler was not a traditional invitee like a customer in a store, the scope of the invitation in this situation is more nebulous. As described above, the “terms of the invitation” were that Andler was visiting paying guests of the campground. Again, the social atmosphere of a festival campground suggests a wide scope of invitation for visitors. Part of the festival experience is meeting fellow attendees with shared interests; in the case of Jamboree-in-the-Hills, this may well include seeking an audience or participants for impromptu jam sessions like the one Andler and Heitzer watched after leaving their friends’ campsite. Festivalgoers may be more likely to select a campground that accommodates visitors even if they do not know those visitors prior to the visit. Even after leaving her friends, Andler was still visiting paying campers and thus providing the same benefit to Clear Channel.
A trip to the restroom cannot reasonably be considered a sufficient deviation to divest Andler of invitee status. Nor did she leave an area designated for invitees. Cf. Gladon, 662 N.E.2d at 292 (ticketed passenger lost invitee status when he left the train platform and went onto the tracks). The campground was not designed in such a way to direct visitors to stick to certain paths; the “path” Andler left before her fall had been created by the heavy car traffic from festivalgoers rather than officially designated as a trail for pedestrians.
2. Open and Obvious Danger
Regardless of an entrant‘s status, a landowner has no duty to warn her
The observability determination “depends upon the particular circumstances surrounding the hazard,” Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 874 N.E.2d 811, 818 (2007) (internal quotation marks omitted), and is “extremely fact-specific,” Henry v. Dollar Gen. Store, No. 2002-CA-47, 2003 WL 139773, at *4 (Ohio Ct.App. Jan. 17, 2003). Despite the plethora of slip-and-fall cases that have wended their way through the Ohio courts, previous decisions regarding open and obvious dangers are thus of “limited value.” Hissong, 927 N.E.2d at 1167. Although the open-and-obvious doctrine goes to the existence of a duty, which is a question of law, observability can be rendered a question for the jury when the underlying facts are disputed and reasonable minds could disagree. See e.g., Hissong, 927 N.E.2d at 1167; Henry, 2003 WL 139773, at *2-3.
Because the record contains conflicting evidence as to whether the hole was reasonably observable, judgment as a matter of law would have been inappropriate. Both parties point to the trial testimony of James Vincent as support for their position. Vincent testified that he saw the hole (which he refers to as a “trench“) prior to Andler‘s fall, suggesting that it was observable, but he also stated that “it was very difficult to see” and “[y]ou couldn‘t see it unless you either fell in it or walked right up to it and happened to look down.” R.149 at 140, 142 (Trial Tr.). Andler did not have an ongoing duty to look downward as she walked, especially when doing so might cause her to careen into other people who were nearby. See Hudspath, 2005 WL 3528896, at *5. Moreover, Vincent saw the hole in daylight, but Andler fell at night. Clear Channel thus has not shown that a “reasonable jury would not have a legally sufficient evidentiary basis to find for [Andler] on that issue.”
C. Andler‘s Expert Witness
1. Loss of Earning Capacity
A tort plaintiff can recover future economic damages for any loss of earning capacity caused by her injury. A plaintiff claiming lost earning capacity must offer sufficient proof of (1) “future impairment” and (2) “the extent of prospective damages flowing from the impairment.” Eastman v. Stanley Works, 180 Ohio App.3d 844, 907 N.E.2d 768, 776 (2009) (quoting Power v. Kirkpatrick, No. 99AP1026, 2000 WL 992028 (Ohio Ct.App. July 20, 2000)). The measure of damages in the second step is “the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.” Id. at 775 (quoting Hanna v. Stoll, 112 Ohio St. 344, 147 N.E. 339 (1925)). Because predictions about future earning potential are necessarily somewhat speculative, an exact calculation of what the plaintiff could have earned but for the injury is not required; a plaintiff must prove damages with “reasonable certainty.” Id. at 776.
The damages are awarded for loss of earning power, not simply loss of earnings. The proper focus is thus what the injured plaintiff could have earned over the course of her working life without the injury versus what she will now earn, not what she earned or will earn in any given year. See id. (plaintiff must show that “the amount of wages [he] will be capable of earning over his working life after his injury is less than the amount of wages he was capable of earning over his working life before his injury“). Accordingly, the fact that a plaintiff earns a higher annual salary after an injury than she did prior to the injury does not bar her from recovering for loss of earning capacity. See, e.g., Taylor v. Freedom Arms, Inc., No. CT2008-0071, 2009 WL 3863123, at *3 (Ohio Ct.App. Nov. 17, 2009); 2 Stein on Personal Injury Damages § 6.9 (“A plaintiff who, at the time of trial, is receiving higher wages than those which he or she was earning at the time of the injury, may nevertheless recover for impairment of
Similarly, “the jury may consider the earnings of the plaintiff at the time of the injury, but the jury is not bound to accept such earnings as conclusive of his future earning power.” Bartlebaugh v. Penn. R. Co., 78 N.E.2d 410, 413 (Ohio Ct.App.1948), judgment modified, 150 Ohio St. 387, 82 N.E.2d 853 (1948). A plaintiff who is unemployed or otherwise earning below her potential at the time of injury, for example, can recover damages for lost earning capacity, as can an injured child, student, or homemaker. See id.; 30 Ohio Jur.3d Damages § 42; see also 29 Am.Jur. Proof of Facts 3d 259, § 4 (1995 & Supp.2011) (“[I]f the plaintiff was underemployed at the time of the accident, and can prove it, the plaintiff should be entitled to prove loss of earning capacity based upon his or her true capabilities and potential without regard to the less-favorable earnings or employment record at the time of the accident.“).
Departures from actual pre-injury earnings must be justified and cannot be unduly speculative. Like all expert testimony, an expert witness‘s calculations of future earning capacity are inadmissible under
Testimony regarding what an injured plaintiff could have earned should take into account factors such as the plaintiff‘s age, employment record, training, education, ability to work, and opportunities for advancement. See Bartlebaugh, 78 N.E.2d at 413; Restatement (Second) of Torts § 924 cmt. d (1979). Further, an expert may reasonably depart from historical earning patterns in light of changed circumstances that occurred prior to the injury but were not yet reflected in the plaintiff‘s actual salary. See Boucher, 73 F.3d at 22 (listing “a change in family
When calculating earning-capacity factors such as projected salary and years in the workforce, experts often consult actuarial tables, Bureau of Labor Statistics figures, or other averages along with the plaintiff‘s historical earnings. See e.g., Taylor, 2009 WL 3863123, at *3; Deyo v. Adjutant General‘s Dep‘t, No. 93API12-1667, 1994 WL 425003, at *6 (Ohio Ct.App. Aug. 16, 1994); see also Tatum v. Land, No. 95-6378, 1997 WL 85144, at *4 (6th Cir. Feb. 26, 1997) (unpublished opinion) (“In this case as in other similar cases, we cannot really know what the decedent would have earned in the future, and earnings projections are essential.“). We held in Cappello v. Duncan Aircraft Sales of Florida, Inc. that calculating lost earning capacity based on the plaintiff‘s actual average income for the previous five years was unreasonable, in part, because that figure was inconsistent with the average lifetime earnings profile for someone in the plaintiff‘s position. 79 F.3d 1465, 1476 & n. 18 (6th Cir.1996).
2. Daniel Selby
The district court granted Clear Channel‘s motion in limine to exclude the testimony of expert witness Daniel Selby regarding Andler‘s loss of earning capacity on the grounds that he used a statistical average salary in calculating Andler‘s pre-injury earning capacity that was several thousand dollars higher than Andler‘s actual pre-injury annual salary. The district court found Selby‘s methodology to be “unreasonable speculation” and thus inadmissible.9
The concern with the use of BLS averages rather than Andler‘s actual historical earnings suggests a confusion of the concepts of lost earnings and lost earning capacity. As explained above, lost earning capacity does not necessarily rely on a plaintiff‘s historical earnings. What matters is what Andler would have earned over the course of her working life, not what she earned in any given year. Andler‘s historical earnings are relevant, but the fact that she did not meet her earning capacity in the two years prior to her injury does not necessarily render Selby‘s projections inaccurate or even unreasonable. Although Andler did not work full-time before her injury, Selby‘s projection that she would work full-time is not “clearly contradicted by the evidence.” Boyar, 954 F.Supp. at 9. Andler testified that she took the childcare job after her divorce because it was located in the district where her children attended school and she “wanted things to pretty much stay the same for my kids until they got out of elementary school.” R.148 at 35 (Trial Tr.). Working at the childcare center, she was able to “be[] there for them before and after school.” Id. This testimony suggests she may have changed jobs once her children were older.10 Moreover, Andler had attended massage school and had worked for a chiropractor before working
Selby‘s testimony that Andler would have earned more over the course of her working life than the earning capacity suggested by her salary in the two years prior to her injury is not unreasonable as a matter of law. Unlike Boucher, for example, Andler maintained regular employment and worked all the hours that were available to her at the childcare center. The shift from part-time to full-time, especially for a mother as her children grow older, is not as speculative as the shift from seasonal employment to a regular 40-hour workweek with full benefits. Selby‘s testimony involves a degree of speculation, as does all analysis of future damages, but not unrealistic speculation. The factual basis for using full-time averages in Selby‘s pre-injury earning capacity calculation may not be particularly strong, but “it is not proper for the Court to exclude expert testimony ‘merely because the factual bases for an expert‘s opinion are weak.‘” Boyar, 954 F.Supp. at 7 (quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C.Cir.1993)). The jury could have weighed Selby‘s opinion, informed by Clear Channel‘s vigorous cross-examination.11
Because we conclude that the district court‘s initial decision to exclude Selby‘s testimony was an abuse of discretion, we do not address Andler‘s alternative argument that the court should have allowed Selby to testify in person using Andler‘s historical earnings in his calculations of lost earning capacity.
III. CONCLUSION
Because Andler was an invitee under Ohio law and questions of fact existed as to whether the grassy hole was an open and obvious danger, we AFFIRM the denial of Clear Channel‘s motion for judgment as a matter of law. We REVERSE the grant of Clear Channel‘s motion in limine excluding the testimony of Andler‘s expert witness as an abuse of discretion premised on a misunderstanding of the concept of lost earning capacity, VACATE the jury‘s award, and REMAND for a partial new trial on the issue of damages.
KAREN NELSON MOORE
UNITED STATES CIRCUIT JUDGE