Brandy Andler v. Clear Channel Broadcasting, Inc

Rule of Law:

A tort plaintiff can recover for loss of earning capacity, which may include expert projections of future earning potential that reasonably depart from historical earnings if supported by reasonable certainty and not unduly speculative. Under Ohio premises liability, a landowner owes a duty of ordinary care to an invitee, a status that can extend to visitors of paying guests, and the “open and obvious” danger doctrine does not apply if reasonable minds could differ on whether the danger was reasonably observable.

Facts:

• In July 2004, Brandy 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 who were staying at a nearby campground owned and operated by Clear Channel Broadcasting, Inc. as part of the festival.
• Later that night, around 10:00 p.m., Andler and Heitzer left their friends' campsite and walked around the grounds, first stopping to listen to music and then heading towards the restrooms.
• On her way to the restrooms, Andler stepped off the path she was walking on and fell into a six-to-eight-inch grass-covered hole, breaking several bones in both of her feet.
• Andler contended that the hole was not visible because the grass growing in it reached the same height as the surrounding land, and she fell at night.
• As a result of her fall, Andler developed arthritis in her feet.
• Prior to her injury, Andler worked part-time at a childcare center, earning between $9,000 and $10,000 annually.
• Following her injury, Andler switched to full-time work as a manicurist and pedicurist, earning approximately $10,000 in 2006 and $25,000 in 2008.
• Andler testified that she took the childcare job after her divorce because it was located in her children's school district and allowed her to be present for them before and after school, and that her post-injury switch to cosmetology was what she had 'already wanting to do.'

Procedural Posture:

• Brandy Andler brought suit against Clear Channel Broadcasting, Inc. in the United States District Court for the Southern District of Ohio, asserting claims under Ohio tort law for personal injury damages, including medical expenses and loss of earning capacity.
• Clear Channel moved for summary judgment, arguing Andler was a licensee and the hole was an 'open and obvious danger.'
• The district court denied Clear Channel’s summary judgment motion, concluding Andler was a business invitee and that genuine issues of fact existed regarding Clear Channel's duty of care and the 'open and obvious danger' doctrine.
• At the first trial, the jury awarded Andler $200,000, including $148,000 for future economic damages.
• Clear Channel appealed the first jury verdict to the United States Court of Appeals for the Sixth Circuit (Andler v. Clear Channel Broad., Inc., 342 F. App’x 100 (6th Cir. 2009)).
• A prior panel of the Sixth Circuit reversed the district court's judgment, finding an error in refusing to instruct the jury on the 'open and obvious danger' doctrine, and remanded for a new trial.
• Prior to the start of the second trial, the district court granted Clear Channel’s motion in limine to exclude the testimony of Andler's expert witness, Daniel Selby, regarding loss of earning capacity, deeming it 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.
• During the second trial, the district court instructed the jury that it could not award any damages for loss of earning capacity.
• Clear Channel moved for judgment as a matter of law, reiterating arguments that Andler was a licensee and the hole was open and obvious.
• The district court denied Clear Channel's motion for judgment as a matter of law.
• The jury in the second trial awarded Andler $10,000, which did not include any recovery for lost earning capacity (the original $20,000 award was reduced by 50% for Andler's comparative negligence).
• Andler timely appealed the exclusion of Selby’s testimony to the United States Court of Appeals for the Sixth Circuit.
• Clear Channel timely cross-appealed the denial of its motion for judgment as a matter of law to the United States Court of Appeals for the Sixth Circuit.