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.




Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 1 of 10
                                          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,


      Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 2 of 10
      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.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 3 of 10
[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

       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 4 of 10
       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:


       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 5 of 10
               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.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 6 of 10
[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.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 7 of 10
                                         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
       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 8 of 10
       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,



       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 9 of 10
       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.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1509-CT-1364 | June 15, 2016   Page 10 of 10
