MEMORANDUM DECISION FILED
Jun 15 2016, 7:23 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Jennifer E. Davis David Andrick
Garan Lucow Miller, P.C. Law Office of Paul A. Rossi, LLC
Merrillville, Indiana Lowell, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Paucak and Bernadette June 15, 2016
Paucak, Court of Appeals Case No.
Appellants-Defendants, 45A05-1509-CT-1364
Appeal from the Lake Superior
v. Court
The Honorable John R. Pera,
Daniel M. Paucak, Judge
Appellee-Plaintiff Trial Court Cause No.
45D10-1402-CT-25
Vaidik, Chief Judge.
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Case Summary
[1] Jerry and Bernadette Paucak appeal following a jury verdict against them and
in favor of their son, Daniel Paucak, based on an injury Daniel suffered when
he fell off a ladder at their house. Jerry and Bernadette contend that the trial
court erred by denying their pre-trial motion for summary judgment and, during
the subsequent trial, by allowing Daniel’s impaired-earning-capacity claim to go
to the jury. Finding no error, we affirm.
Facts and Procedural History
[2] On April 27, 2013, Daniel stopped at Jerry and Bernadette’s house to see them.
Bernadette asked Daniel to check the house’s gutters and to clear them out if
necessary. Daniel retrieved a ladder from the garage and started doing so. On
the north side of the house, he set the ladder in some landscaping rocks along
the house and began climbing. Upon reaching the third or fourth rung, the
right side of the ladder sunk into the ground. Daniel fell and broke his ankle.
As a result of the accident, Daniel is no longer able to work as a spinal fusion
consultant, a job that required him to be on his feet in operating rooms for long
stretches of time.
[3] Daniel sued Jerry and Bernadette, alleging, among other things, that they knew
that the ground on the north side of the house “was soft and wet due to recent
rainfall and water accumulation” and should have warned him. Appellants’
App. p. 21. Jerry and Bernadette filed a motion for summary judgment,
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asserting that there is no evidence that they knew the ground was soft and that,
in any event, Daniel’s placement of the ladder was the cause of his fall. The
trial court found that there were genuine issues of material fact and denied the
motion.
[4] Shortly before trial, Daniel withdrew the economic expert he had retained. In
response, Jerry and Bernadette filed a motion in limine asking the trial court to
preclude Daniel from presenting to the jury an impaired-earning-capacity claim,
based on their “[u]nderstanding that the law in Indiana is that an expert witness
in the science of economics is necessary to prove loss of future earnings and
earning capacity[.]” Appellants’ App. p. 185. The trial court denied the
motion, allowing Daniel to present the claim without an expert.
[5] At trial, after Daniel testified about how much he earned before the accident
and following the accident, Jerry and Bernadette asked the trial court to grant
them a directed verdict on Daniel’s impaired-earning-capacity claim. They
argued that “the jury has no evidence, whatsoever, as to how to arrive at a
correct figure for loss of earning capacity, nor do they have evidence that he
actually lost any capacity.” Tr. p. 674. The trial court denied the motion and
told Jerry and Bernadette, “Make your arguments to the jury.” Id. at 675.
[6] The jury returned a verdict in favor of Daniel. It found Jerry and Bernadette to
be 75% at fault for the accident (and Daniel 25%) and found that Daniel had
suffered $435,000 in damages. Based on these figures, the trial court entered
judgment in favor of Daniel in the amount of $326,250.
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[7] Jerry and Bernadette now appeal.
Discussion and Decision
[8] Jerry and Bernadette’s primary argument on appeal is that the trial court should
have granted their motion for summary judgment and dismissed Daniel’s
claims before trial. They also assert that the trial court should have at least kept
Daniel’s impaired-earning-capacity claim from reaching the jury, by granting
either their pre-trial motion in limine or their mid-trial motion for directed
verdict.
I. Summary Judgment
[9] Jerry and Bernadette first challenge the trial court’s denial of their motion for
summary judgment. Indiana Trial Rule 56(C) provides that a trial court should
grant a motion for summary judgment only if “the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” In an appeal from a
trial court’s decision on such a motion, we review the matter de novo, applying
that same standard. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
[10] Jerry and Bernadette argue that there was no evidence that they knew or should
have known that the ground on the north side of the house was wet and soft at
the time of the accident. They are incorrect. Daniel testified during his
deposition that after he fell, Jerry said he (Jerry) knew that “it had rained for the
previous week or whatever it was, couple days” and that “it could be wet, so it
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could be potentially dangerous[.]” Appellants’ App. p. 179. Furthermore,
Jerry conceded during his own deposition that he “should have warned Dan
that conditions on the north side of the house tend to get soft and wet and not
good stability for the ladder[.]” Id. at 131. And Bernadette testified that she
knew that the spot where Daniel fell was one of the “mushy parts” of the yard.
Id. at 147. A reasonable inference from these statements, particularly Jerry’s
acknowledgement that he “should have warned” Daniel, is that Jerry and
Bernadette knew—before Daniel fell—that the ground could be wet and soft
and that checking the gutters was a risky task. Therefore, the trial court
properly denied summary judgment on this issue.
[11] Jerry and Bernadette also assert that they were entitled to summary judgment
because “Daniel was in complete control of whether and where to place the
ladder.” Appellants’ Br. p. 21. They cite Daisy v. Roach, 811 N.E.2d 862 (Ind.
Ct. App. 2004), where we held that a homeowner could not be held liable to a
construction worker injured at the home because the worker’s employer was in
control of the construction site. There, the work was being done in February,
and the employee was on the roof. The employee’s supervisor told him to get
off the roof and get some supplies, but the ladder he had used to climb onto the
roof had been moved, so his supervisor told another worker to put the ladder
back up against the house. As the employee was climbing down the ladder, it
slid on ice on the frozen ground. The employee fell and was injured and then
sued the homeowner. The trial court granted summary judgment to the
homeowner, and we affirmed, explaining:
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At the time of the accident in February, the ground was frozen
and icy, a naturally occurring condition during the winter
months in northern Indiana. And while those conditions may
have contributed to the accident, they were not the cause. The
cause of the accident was the failure of [the employees] to safely
secure the ladders they used to climb onto the roof of the house.
There is no assertion that [the homeowner] had any control over
the manner in which the ladders were used. While it may be true
that [the homeowner] had ordered the workers to shut the doors
to the home, obtain supplies, and generally directed how he
wanted the house constructed, the evidence does not support the
conclusion that [the homeowner] was in control of the manner in
which the ladders were used. Rather, the only conclusion
available from the facts before us is that [the company] controlled
the use of the ladders on the site and the area where the accident
occurred at the time it occurred.
Id. at 867.
[12] Our holding in Daisy was rooted in the principle that “[w]hen an owner lets a
contract to another to perform particular work, retaining no control thereof
except the right to require a particular standard of completed work, the owner is
not liable for the negligence of the party to whom the contract is let.” Louisville
Cement Co. v. Mumaw, 448 N.E.2d 1219, 1222 (Ind. Ct. App. 1983), disapproved
on other grounds by Bagley v. Insight Commc’ns Co., 658 N.E.2d 584 (Ind. 1995).
However, there is an important exception to this rule: the owner or occupant of
premises who discovers the existence of a latent or concealed defect in the
property that is not likely to be discovered by an invitee must either correct the
condition or warn the invitee of the latent defect’s existence. Id. at 1221.
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[13] Setting aside the fact that this case does not involve a typical “independent
contractor” arrangement, the key difference between Daisy and this case is that
the frozen, icy condition of the ground in Daisy was common in northern
Indiana and easily discoverable by the workers, whereas there is evidence that
the soft, wet condition of the ground in this case was concealed by the
landscaping rocks and therefore not likely to be discovered by Daniel. If such a
condition existed, and Jerry and Bernadette were aware of it (as discussed
above, there is evidence that they were), then they were required to either
remedy the condition or warn Daniel before he started his work. See Louisville
Cement Co., 448 N.E.2d at 1221. While Daniel’s control of the worksite and of
the placement and use of the ladder was relevant to his comparative fault (as the
jury later found), it did not eliminate Jerry and Bernadette’s separate duty to
him. The trial court did not err by leaving these fact-sensitive questions to the
jury.
II. Impairment of Earning Capacity
[14] Jerry and Bernadette also contend that the trial court should have granted their
pre-trial motion in limine and barred Daniel from making an impaired-earning-
capacity claim, based on the fact that Daniel did not have an expert witness to
support such a claim. Alternatively, they urge that the trial court should have
granted them a directed verdict on the claim at the end of Daniel’s case-in-chief.
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A. Motion in Limine
[15] In support of their motion in limine, Jerry and Bernadette cited our decision in
Ollis v. Knecht, 751 N.E.2d 825 (Ind. Ct. App. 2001), reh’g denied, which they
said stands for the proposition that a plaintiff seeking damages for impairment
of earning capacity must present the testimony of an expert witness. See
Appellants’ App. p. 185-86, 204, 207. We said no such thing in Ollis; that case
was about the reliability and the probative value of the testimony of the
defendants’ economic expert. 751 N.E.2d at 828-31. With regard to a plaintiff’s
burden on an impaired-earning-capacity claim, we held long ago that “impaired
earning capacity . . . may be proven by both expert and non-expert testimony.”
Scott v. Nabours, 296 N.E.2d 438, 441 (Ind. Ct. App. 1973). The trial court did
not err when it denied Jerry and Bernadette’s motion in limine.
B. Directed Verdict
[16] Jerry and Bernadette’s final argument is that even if the trial court properly
allowed Daniel to make an impaired-earning-capacity claim, the evidence he
presented was insufficient to make out such a claim, and they were entitled to a
directed verdict on the issue. We review the decision on a motion for directed
verdict de novo, applying the same standard that governed the trial court in
making its decision. State Farm Mut. Auto. Ins. Co. v. Noble, 854 N.E.2d 925, 931
(Ind. Ct. App. 2006), trans. denied. We examine only the evidence and the
reasonable inferences that may be drawn therefrom that are most favorable to
the nonmovant, and the motion should be granted only where there is no
substantial evidence supporting an essential issue in the case. Id. If there is
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evidence that would allow reasonable people to differ as to the result, a directed
verdict is improper. Id.
[17] In order to recover on an impaired-earning-capacity claim, an injured plaintiff
must prove (1) that the injury caused an inability to engage in his vocation and
(2) the difference between the amount the plaintiff was capable of earning
before the injury and the amount he is capable of earning thereafter. Scott, 296
N.E.2d at 441. Jerry and Bernadette acknowledge that Daniel presented
evidence that he is unable to continue working as a spinal fusion consultant
because of the need to stand for long periods; however, they question the extent
of his financial loss, if any, arguing that Daniel’s testimony in this regard “was
nothing but speculation[.]” Appellants’ Br. p. 28. We disagree.
[18] Daniel testified that he was earning about $87,000 per year before the accident
but had earned only about $38,000 per year since the accident, working as a DJ
and in medical sales. Tr. p. 542-69. He presented a variety of tax forms and
other documents that substantiated this testimony. See Plaintiff’s Ex. 16. He
also testified that he thought he would work for approximately twenty-one
more years, until he is sixty-seven years old. Tr. p. 567. This evidence was not
“mere conjecture or speculation” by Daniel. Scott, 296 N.E.2d at 441 (quoting
18 A.L.R.3d 88, 97 (1968)). And while Daniel’s calculations were not highly
scientific, he was not required to “show conclusively or with absolute certainty
that earning capacity has been impaired[.]” Id. He had to show only a
“reasonable certainty or reasonable probability” of impairment. Id. He did so,
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and the trial court did not err by denying Jerry and Bernadette’s motion for a
directed verdict and letting the issue go to the jury.
[19] Affirmed.
Barnes, J., and Mathias, J., concur.
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