Andler v. Clear Channel Broad., Inc.

670 F.3d 717

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.

ARGUED: Richard L. Lancione, Lancione, Lloyd & Hoffman, Bellaire, Ohio, for Appellant. Matthew L. Schrader, Reminger Co. LPA, Columbus, Ohio, for Appellee. ON BRIEF: Richard L. Lancione, Lancione, Lloyd & Hoffman, Bellaire, Ohio, for Appellant. Matthew L. Schrader, Reminger Co. LPA, Columbus, Ohio, for Appellee.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 breach its duty of care to Andler because she was a licensee and because the hole was an “open and obvious danger.” The district court denied Clear Channel's motion, concluding that Andler was a business invitee and that genuine issues of fact existed as to whether Clear Channel breached its duty of care and whether the hole was an “open and obvious danger.”

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–Appeal1. 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 Uddin as contrary to how the Ohio Supreme Court would rule on the issue.

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...