Nevins v. Ohio Department of Transportation , 132 Ohio App. 3d 6 ( 1998 )

Being unable to agree with all of the majority opinion, I respectfully concur in part and dissent in part.

A. Plaintiffs' Assignments of Error on Cross-Appeal in the ODOT Case The first assignment of error in plaintiffs' cross-appeal asserts that the trial court erred in failing to consolidate the damages the jury awarded against Concrete Construction Company ("Concrete") in case No. 98AP-180 with the damages the trial court awarded against the Ohio Department of Transportation ("ODOT") in case No. 98AP-141. In support of their argument, plaintiffs insist that the jury's $1.65 million award against Concrete and the court's $1.57 million award against ODOT reflect those tortfeasors' proportionate shares of the total liability of approximately $3.22 million. Conversely, ODOT argues that because neither the trial court nor the jury specified that their respective damage awards represented the defendants' proportionate liability, the trial court erred in declaring that the judgments represent the defendants' proportionate liability. ODOT further argues under common-law principles of joint and several liability that allowing plaintiffs to recover the sum of the two awards is tantamount to double recovery for the same harm.

"``"Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury."'" Hitch v. OhioDept. of Mental Health (1996), 114 Ohio App.3d 229, 243, 683 N.E.2d 38,47, quoting Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 584,613 N.E.2d 1014, 1024. According to the evidence at trial, ODOT and Concrete were concurrent tortfeasors in relation to the harms plaintiffs suffered, as Concrete's and ODOT's negligence concurred in point of consequence to produce single, indivisible injuries. Indeed, plaintiffs presented evidence of and claimed the same damages against ODOT and Concrete.

While R.C. 2743.11 required plaintiffs to present their claims against ODOT to the Court of Claims, and plaintiffs elected to present their claims against Concrete to a jury, the existence of two finders of fact does not alter the concurrent nature of the negligence at issue here. At common law, "``where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally.'" Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 286,31 OBR 559, 566-567, 511 N.E.2d 373, 380-381, quoting Transfer Co. v. Kelly (1880), 36 Ohio St. 86, 90. In such a case, "the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm." Pang v. Minch (1990),53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph five of the syllabus. Once this burden is met, a prima facie evidentiary foundation has been established supporting joint and several judgments against the defendants. Id. at 197, 559 N.E.2d at 1323-1324.

"``The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called "philosophical sense," which includes every one of the great number of events without which any happening would not have occurred.'" Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,686, 653 N.E.2d 1196, 1202 (quoting Restatement of the Law 2d, Torts [1965], Section 431, Comment a). While the finder of fact in each case in the trial court did not expressly determine that the negligence of either defendant was a substantial factor in producing the damages awarded, the trial court and the jury by their verdicts on proximate causation necessarily concluded that each defendant's negligence was a substantial factor in bringing about the plaintiffs' injuries. Even though the defendants thus are concurrent tortfeasors, plaintiffs are entitled to only one satisfaction for that judgment. See Seifert v. Burroughs (1988), 38 Ohio St.3d 108, 110, 526 N.E.2d 813, 814-815, citing Restatement of the Law 2d, Judgments (1982) 40, Section 50, Comment d.

Resolution of the damages issue here, however, is complicated by the nature of an action in the Court of Claims. R.C. 2743.11 provides that "[n]o claimant in the court of claims shall be entitled to have his civil action against the state determined by a trial by jury." As a result, ODOT cannot be held accountable for the damages the jury awarded to the extent they exceed the damages the Court of Claims awarded. A ruling to the contrary would allow plaintiffs to recover indirectly, through principles relating to concurrent tortfeasors, what the General Assembly directly prohibited. As a by-product of that dichotomy, the potential for inconsistent verdicts in cases involving claims against both the state and nonstate parties continues to be "an inherent characteristic * * * of the current system by which the state has waived its sovereign immunity and established the Court of Claims." Cincinnati Ins. Co. v. KenecoDistrib., Inc. (Nov. 13, 1997), Franklin App. No. 97API04-459, unreported, 1997 WL 710604. Nonetheless, to determine the propriety of the damages awards, it is necessary to consider whether the verdicts represent total damages, or proportionate damages awarded based on the extent to which each defendant caused the harm.

Although the trial court's February 10, 1998 decision on Concrete's posttrial request for contribution indicates that "the amount of [the respective judgments against ODOT and Concrete] are directly related to the proportion of negligence that each party exhibited," the trial court should have determined total damages suffered by the plaintiffs, and then, on motion of the defendants, apportioned the damages by determining to what degree each defendant caused the harm at issue. By failing to award total damages against ODOT, the trial court deprived plaintiffs of a judgment for the joint liability of the defendants. Accordingly, I would sustain plaintiffs' first assignment of error on cross-appeal and remand the matter to the trial court to determine the total damages plaintiffs suffered as a result of the negligence of the concurrent tortfeasors.

On remand, if ODOT or Concrete were to request that damages should be apportioned, then the court may consider that issue and rule accordingly. However, the issue of apportionment, a matter to be demonstrated by defendants, may not deprive plaintiffs of the total damage award to which they are entitled as a result of the concurrent negligence of defendants. For the foregoing reasons, I disagree with the majority opinion's disposition of a number of plaintiffs' assignments of error in both cases, as I disagree with the majority's conclusion that the trial court correctly ruled that the awards against both defendants could permissibly represent those defendants' respective shares of liability.

B. Plaintiffs' Case Against Concrete Plaintiffs argue in their first cross-assignment of error in the Concrete case that the trial court erred in denying their motion for a new trial on damages. Plaintiffs' argument on cross-appeal essentially focuses on the adequacy of the damages and is directed to Civ.R. 59(A)(4), which states:

"A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:

"* * *

"(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice * * *."

A trial court's denial of a motion for new trial may be reversed on appeal only where the complaining party demonstrates the trial court abused its discretion. Dillon v. Bundy (1991), 72 Ohio App.3d 767, 773,596 N.E.2d 500, 504. To support a finding of passion or prejudice under Civ.R. 59(A)(4), plaintiffs must demonstrate "that the jury's assessment of the damages was so overwhelmingly disproportionate as to shock reasonable sensibilities." Pena v. Northeast Ohio Emergency Affiliates,Inc. (1995), 108 Ohio App.3d 96, 104, 670 N.E.2d 268, 273. In assessing such a claim, a reviewing court should consider the amount of the verdict, whether the jury considered incompetent evidence, improper argument by counsel, or other improper conduct which can be said to have influenced the jury. Dillon, supra.

Plaintiffs do not allege that the jury considered incompetent evidence, improper argument, or other improper conduct by counsel. Rather, plaintiffs' entire argument with regard to the court's denial of their motion for a new trial on damages focuses on the inadequacy of the jury instructions, resulting in the jury's allegedly allocating damages between Concrete and ODOT. While the absence of instruction in that regard may suggest that the jury was confused, such an omission does not render the verdict the product of passion or prejudice. The amount of damages in this case, without more, is insufficient to demonstrate passion or prejudice. Nor is the award so overwhelmingly disproportionate as to shock reasonable sensibilities. The mere fact that a larger amountcould have been awarded does not necessarily show that the jury lost its way. See Dillon, at 774, 596 N.E.2d at 504-505; cf. Jeanne v. HawkesHosp. of Mt. Carmel (1991), 74 Ohio App.3d 246, 257, 598 N.E.2d 1174,1181 ("The mere size of a verdict does not afford proof of passion or prejudice."). For the foregoing reasons, I would overrule plaintiffs' first cross-assignment of error in the Concrete case.

Plaintiffs' second, third, and fourth cross-assignments of error in the Concrete case are interrelated and will be addressed together.

Plaintiffs' second cross-assignment of error asserts that the trial court improperly omitted their proposed jury instruction regarding concurrent but independent negligence. Similarly, plaintiffs' third and fourth cross-assignments of error contend that the trial court did not properly instruct the jury regarding the decedents' survival claims and erred in refusing to instruct the jury regarding Concrete's dismissal of its contributory negligence claim against Archie Nevins. In response, Concrete initially argues that plaintiffs have waived their right to appellate review of any of the instructions because plaintiffs did not object under Civ.R. 51(A) following the charge.

As to plaintiffs' second cross-assignment of error, plaintiffs submitted the following proposed jury instruction for inclusion in the court's charge to the jury:

"If a person is injured by the negligence of persons or entities who act independently, and their acts combine to proximately cause injury, each of the wrongdoers is liable to such person for the full amount of the damage. The injured person may enforce his claim in an action against only one of the wrongdoers individually. (Court of Claims case No. 95-07865-PR, Plaintiffs' Proposed Jury Instruction 15. Citing 1 Ohio Jury Instructions 7.80.)"

During the hearing on jury instructions, jury interrogatories, and verdict forms, the trial judge agreed to give plaintiffs' proposed instruction. For whatever reason, the court did not include the instruction in its charge to the jury. Instead, the court instructed the jury, as to proximate cause, as follows:

"A party who seeks to recover for an injury must prove not only that the other party was negligent, but also that such negligence was a proximate or direct cause of injury.

"Proximate cause is an act or failure to act which in the natural and continuous sequence directly produces the death or injury, and without which it would not have occurred. Cause occurs when the death or the injury is the natural and foreseeable result of the act or failure to act.

"There may be more than one proximate cause. When the negligent act or failure to act of one party continues, combines with, or joins with the negligence of another to produce the injury or damage, the negligence of each or both is a cause. It is not necessary that the negligence of each occur at the same time, nor that there be a common purpose or action."

Following the charge to the jury, the court inquired of counsel, "[a]re there any corrections or omissions other than those already stated in the record?" Plaintiffs' counsel replied, "I think we've covered them, Your Honor."

Civ. R. 51(A) provides that "[o]n appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." The purpose of the rule is to make the trial court aware of alleged errors in the instructions when it still has an opportunity to correct the mistake or defect. Presley v. Norwood (1973), 36 Ohio St.2d 29, 33,65 O.O.2d 129, 131, 303 N.E.2d 81, 84-85.

Plaintiffs contend that Presley excuses their failure to timely object to the court's omission of their proposed instruction. In Presley, the Ohio Supreme Court created an exception to Civ.R. 51(A), holding that "[w]here the record affirmatively shows that a trial court has been fully appraised of the correct law governing a material issue in dispute, and that the complaining party has unsuccessfully requested the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto." (Emphasis sic.) Presley, supra, paragraph one of the syllabus, citing Civ.R. 51(A); see, also, Mers v. Dispatch Printing Co. (1988),39 Ohio App.3d 99, 107-108, 529 N.E.2d 958, 967-969 (construing Presley,supra). If the party makes its position sufficiently clear to give the court an opportunity to correct a defect in the charge, then the rationale of giving the court notice of the defect is no longer served by a formal objection after the charge is given. State v. Wolons (1989),44 Ohio St.3d 64, 67, 541 N.E.2d 443, 445-446, and State v. Banks (1992), 78 Ohio App.3d 206, 211-212, 604 N.E.2d 219, 222-224, both construing analogous Crim.R. 30(A). Presley applies when a party unsuccessfully argues for inclusion of a proposed jury instruction, and the charge as presented to the jury is different from or contrary to the proposed instruction. At that point the material issue is in dispute for the purposes of the Presley exception. Thus, Ohio appellate courts have uniformly applied Presley where the trial court refused to charge the jury as requested or charged the jury inconsistently with a proposed instruction. See, e.g., Krischbaum v. Dillon (1991), 58 Ohio St.3d 58,567 N.E.2d 1291; Wolons; Banks, supra; Jenks v. W. Carrollton (1989),58 Ohio App.3d 33, 567 N.E.2d 1338; Mers, supra.

By contrast, the trial court here did not reject plaintiffs' proposed instruction or refuse to give it. Plaintiffs have cited no authority applying the Presley exception in a situation in which the trial court merely fails to charge the jury as requested without an implicit rejection of the proposed instruction by inclusion of a contrary or dissimilar instruction. Further, federal courts, construing analogous Fed.R.Civ.P.51¹ have rejected such an application. See, e.g., UnitedStates v. Heyward-Robinson Co. (C.A.2, 1970), 430 F.2d 1077, 1084-1085 (distinguishing Sweeney v. United Feature Syndicate [C.A.2, 1942],129 F.2d 904 [cited with approval in Presley, supra, at 33,65 O.O.2d at 131, 303 N.E.2d at 84-85]); Pauling v. News Syndicate Co. (C.A.2, 1964),335 F.2d 659, 669-670 ("The case is not like the decisions * * * where the judge, having focussed on the point, charged the opposite of what had been requested, so that objection would have been a useless formality. * * * [T]he defect was solely of omission." [Citations omitted.]).

Further, plaintiffs' proposed instruction did not call to the court's attention a deficiency in the charge, as the court had not yet made available to counsel its draft of the charge. Moreover, before the jury retired, the court specifically asked the parties whether they had any corrections or omissions in the charge, as given. In response, plaintiffs' counsel stated that he had none. Accordingly, Civ.R. 51(A) prohibits plaintiffs from raising an objection to the charge in this court. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207,24 O.O.3d 316, 436 N.E.2d 1001, paragraph one of the syllabus. Therefore, plaintiffs' second cross-assignment of error in the Concrete case must be overruled unless the trial court committed plain error. Id. at 209,24 O.O.3d at 317, 436 N.E.2d at 1002-1003.

"In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson (1997),79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus.

Here, although plaintiffs do not contest the trial court's instruction on the issue of concurrent causation, plaintiffs insist that the omission of their proposed jury instruction "raises serious concern about the basic fairness and integrity of the judicial process in the Ohio Court of Claims." Plaintiffs argue that the omission, coupled with the court's admonition that the jury should determine liability only as to Concrete, confused the jury and resulted in the jury's apportioning the damages solely for the portion of the harm Concrete caused. In particular, plaintiffs contend that the jury's award of twenty-three percent of the funeral expenses for each decedent suggests apportionment of some kind.

The alleged apportionment cannot be said to challenge the legitimacy of the underlying judicial process. The interrogatories, which the parties reviewed at a precharge hearing, directed the jury to determine the "total amount of damages," without qualification, to the estates of Anna Nevins, Janice Nevins, and Jonathan Nevins, and "the total amount of compensatory damages," without qualification, to Betsy Nevins and Archie Nevins for emotional distress. The court inquired of counsel at least twice concerning the correctness of the jury instructions, and counsel failed to challenge the omission of the requested instruction. It is doubtful that the public's confidence in the jury system is undermined "``by requiring parties to live with the results of errors that they invited, even if the errors go to "crucial matters." In fact, the idea that parties must bear the cost of their own mistakes at trial is a central presupposition of our adversarial system of justice.'" (Emphasissic.). Goldfuss, supra, at 121, 679 N.E.2d at 1103 (quoting Montalvo v. Lapez [1994], 77 Haw. 282, 884 P.2d 345 [Nakayama, J., concurring in part and dissenting in part]).

For the foregoing reasons, I would overrule plaintiffs' second cross-assignment of error in the Concrete case.

Plaintiffs' third and fourth cross-assignments of error challenge the trial court's refusal (1) to clarify the definition of "survival claim," and (2) to instruct the jury regarding Concrete's withdrawal of its contributory negligence defense. Plaintiffs failed to assert a postcharge objection to either omission. If plaintiffs are not excused from making a formal objection, they have waived appellate review of the omissions under all but the plain error standard of review. Civ.R. 51(A); Schade,supra; see, also, Lawson v. Sivillo (May 15, 1980), Cuyahoga App. No. 41284, unreported (applying waiver to Civ.R. 51[B] cautionary instruction).

Plaintiffs did not waive their right to appellate review of the court's refusal to clarify its instruction on the decedents' survival claims. Counsel for plaintiffs specifically brought to the trial court's attention their concerns that the charge inadequately instructed the jury on the issue of survivorship, but the court declined to clarify the charge. Having satisfied the purpose of Civ.R. 51(A), plaintiffs were not required to formally object to the same instruction. Presley, supra.

Similarly, plaintiffs preserved their right to appeal the court's refusal to instruct the jury on Concrete's withdrawal of its comparative negligence claim. Regarding that instruction, plaintiffs asked the trial court to instruct the jury that Concrete had withdrawn its allegation of comparative negligence; plaintiffs were concerned that the jury would improperly consider evidence presented in relation to that issue. The court refused to include such an instruction because Concrete objected to it. Thus, plaintiffs articulated their concerns about the proposed omission, yet, the court indicated that it would not act on those concerns. Moreover, whether the court should admonish the jury concerning Concrete's last-minute withdrawal of its contributory negligence defense, after both parties had presented evidence regarding the defense, was "material" and "in dispute" for the purposes of the Presley exception. Cf. Steinke v. Koch Fuels, Inc. (1992), 78 Ohio App.3d 791,797, 605 N.E.2d 1341, 1345 (instruction regarding claim dismissed before trial "potentially confusing and legally incorrect"). Accordingly, plaintiffs properly preserved the issue for appeal, in spite of their failure to offer a postcharge objection to the court's omission. Thus, plaintiffs have not waived the errors asserted in their third and fourth cross-assignments of error.

Plaintiffs' third cross-assignment of error challenges the trial court's refusal to modify the language of its charge on survivorship damages. A court is not required to use the precise language a party proposes for a jury instruction. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d at 690, 591 N.E.2d at 769. Thus, the challenged language must be reviewed within the context of the entire charge. Reversible error generally cannot be predicated upon a portion of the charge; where the charge, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion of it. Sech v. Rogers (1983),6 Ohio St.3d 462, 464, 6 OBR 515, 516-517, 453 N.E.2d 705, 707-708;Snyder v. Stanford (1968), 15 Ohio St.2d 31, 44 O.O.2d 18, 238 N.E.2d 563, paragraph three of the syllabus.

At the trial court's request, counsel engaged in a detailed colloquy concerning the differences between plaintiffs' survivorship claim and the wrongful death claim. The court eventually indicated that it understood that the survivorship claim addressed the pain and suffering endured by the decedents from the time of the accident to the time of their deaths. However, the survivorship instruction, as presented to counsel for review, referred to the pain and suffering and mental anguish endured by the plaintiffs generally, rather than the plaintiffs' decedents. When plaintiffs' counsel expressed their concern, the following discussion with the trial court ensued:

"MR. GOODMAN: I was reviewing the instructions that you proposed to us, I saw — I believe you gave a survivorship interrogatory, but there was not a definition of survivorship in the instructions — survival.

"THE COURT: I put in word for word from the case you gave me, word for word.

"MR. GOODMAN: But that's for the —

"THE COURT: But the factors to be considered under death benefits are there. What other language can you use? Go ahead.

"MR. SMITH: Judge, let me — the language from the Binns case applies to Arch and Betsy Nevins' claims.

"THE COURT: That's correct.

"MR. SMITH: The survival claim is for the decedents for pain and suffering before they died.

"THE COURT: If you look at my charge, I say on Page 12, extent of physical illness to the Plaintiffs and pain and suffering that they experience. What other claims do you have? Bring the jury in. Let's move on."

The court charged the jury on survivorship and wrongful death, as follows:

"If you find for the Plaintiffs, the first consideration is to determine what damages, if any, may have been sustained by the Plaintiffs. In making this determination, you will consider the following:

"The nature and extent of the physical and mental injuries to the Plaintiffs; any pain and suffering that they experienced, including mental anguish.

"* * *

"If you find for the Plaintiff[s], you will determine what sum of money will compensate the beneficiaries for the injury and the loss to them by reason of the wrongful death of the decedents, plural.

"In determining damages suffered by reason of the wrongful death, you may consider all factors existing at the time of the decedent's death." (The court then presented a list of factors to consider in awarding damages for wrongful death.)

R.C. 2305.21 provides that "causes of action for * * * injuries to the person * * * shall survive; and such actions may be brought notwithstanding the death of the person entitled * * * thereto." Gene Hollinger, the administrator of Janice and Jonathan Nevins's estates, and Reginald Nevins, the administrator of Anna Nevins's estate, brought the instant action, in part, on behalf of the estates of the decedents to recover for the pain and suffering Anna, Jonathan, and Janice suffered as a result of the accident allegedly caused by Concrete. Those claims represented the survivorship portion of the action. By contrast, R.C.2125.01 affords a civil remedy that compensates others for the death of a person caused by the wrongful act, neglect, or default of a third person. Gene Hollinger and Reginald Nevins, among other plaintiffs, brought wrongful death claims on behalf of the decedents' next-of-kin.

Because plaintiffs sought to recover for both wrongful death and survivorship claims, the court had a duty to separate those claims and instruct the jury on the law as to each issue. See Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12, 19 OBR 8, 10, 482 N.E.2d 583, 585. The court incorrectly instructed the jury that, in awarding damages for the survivorship claim, it was to consider "the nature and extent of the physical and mental injuries to the Plaintiffs; any pain and suffering that they experienced, including mental anguish." (Emphasis added.) The error is only exacerbated by the trial court's instructions to the jury panel prior to voir dire that "the plaintiffs" in this action were Archie Nevins, Betsy Nevins, and the estates of Anna Nevins, Janice Nevins, and Jonathan Nevins. The charge, considered as a whole, failed to adequately separate the basis for damages in the wrongful death claim from the basis for damages in the survivorship claim. The court's refusal to entertain counsel's concern regarding that issue was error.

The amounts of the survivorship damages themselves demonstrate sufficient prejudice to merit reversal. The primary evidence regarding the decedents' pain, suffering, and mental anguish were the video depositions of the coroners who prepared the decedents' death certificates. All three decedents suffered various abrasions, contusions, and bruises as a result of the tumbling motion of the van during the accident. Additionally, Dr. Dirk Gregory, who performed the autopsy on Anna Nevins, concluded that Anna Nevins suffered a crushed chest with multiple rib fractures, rendering her unable to breath normally. All three decedents ultimately died of freshwater drowning, a process which renders a person unconscious within, at most, three minutes of involuntarily inhaling water.

The survivorship damages awarded for each decedent indicate that the jury was confused as to the nature of survivorship damages. The jury awarded the most damages for Jonathan Nevins, the youngest decedent, even though Anna Nevins clearly sustained the most serious, and arguably the most painful, injuries as a result of the accident. Similarly, the jury awarded far less damages for Janice Nevins than for Anna or Jonathan. The awards are more in line with the amount a jury would award the surviving family members for wrongful death. The tremendous diversity in the survivorship awards is not supported by, and is at odds with, the only evidence adduced on the subject of pain, suffering, and mental anguish suffered by the decedents, thus reflecting the prejudice plaintiffs sustained by the court's incorrect instruction on survivorship damages. Accordingly, I would sustain plaintiffs' third cross-assignment of error in the Concrete case.

Under plaintiffs' fourth cross-assignment of error, the requested instruction regarding Concrete's withdrawal of its comparative negligence defense was essentially a request for a cautionary instruction. Plaintiffs sought by the instruction to prevent the jury from considering evidence that ODOT's experts presented on Archie Nevinses' comparative negligence. The decision to give a cautionary instruction under Civ.R. 51(B) rests within the sound discretion of the trial court and will not be disturbed by a reviewing court absent an abuse of discretion. Lambertv. Shearer (1992), 84 Ohio App.3d 266, 275, 616 N.E.2d 965, 970-971;Berlinger v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 830, 840,589 N.E.2d 1378, 1384-1385. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482-483, 450 N.E.2d 1140,1142.

The trial court allowed ODOT to elicit testimony from several witnesses regarding Archie Nevins's negligence. The jury heard Highway Patrol Officer Kenneth Garloch testify that Archie Nevins failed to brake as his vehicle approached the lake. ODOT utilized a similar technique with Highway Patrol Officer Christopher Dickens, who also used photographs of the crash site to demonstrate to the jury that Archie Nevins failed to brake or steer before the van hit the lake. Similarly, Trooper Greg Crisp testified that on the night of the accident, Archie Nevins told him that Nevins allowed the van to coast into the lake without braking or steering. Further, ODOT's collision analysis and reconstruction expert, Walter Kennedy, testified that Archie Nevins's lane change immediately before the crash was not a gradual lane change, but a "lane swerve maneuver." Kennedy's ultimate conclusion, that such failure was "careless," was stricken from the record.

Even if the court's refusal to caution the jury not to consider the foregoing evidence constituted an abuse of discretion, plaintiffs have not demonstrated prejudice. While plaintiffs contend that the absence of such an admonition "clearly contributed to the jury's confusion and inexplicable verdict," plaintiffs have not tied the court's refusal to admonish the jury to any evidence or action reflecting confusion. Indeed, plaintiffs have not even attempted to connect the reduced burial expenses award to the court's refusal to give the requested instruction.

Moreover, the court instructed the jury to apply the law as provided in the charge, and not their conception of what the law should be. Concrete, itself, informed the jury several times during its closing argument that it did not consider the accident to be Mr. Nevins's fault ("This was an accident. It wasn't our fault, and it wasn't — obviously wasn't Mr. Nevins' fault." "And don't get me wrong, I'm not saying [Mr. Nevins] should have hit the brakes. * * * I don't think [his actions were] unreasonable.").

Plaintiffs nonetheless suggest that Snyder, supra, and McCullough v.Spitzer Motor Ctr., Inc. (1996), 108 Ohio App.3d 530, 671 N.E.2d 306, require reversal. In Snyder, the Ohio Supreme Court indicated that where evidence of contributory negligence is adduced at trial, the trial court commits reversible error in failing to instruct the jury on that issue, even if the issue was not raised in the pleadings. Snyder, however, addressed the court's duty to provide an instruction on the merits, where plaintiffs' assigned error involves a cautionary instruction lying within the sound discretion of the trial court. Moreover, Snyder ultimately held that because the record failed to demonstrate substantial prejudice resulting from the charge as given, the trial court had not committed reversible error. Plaintiffs' argument suffers from a similar deficiency.

Nor is McCullough dispositive. In McCullough, the Court of Appeals for Cuyahoga County remarked: "It is only common sense that the jury be advised of the court's decision to withdraw a previously contested issue from consideration." McCullough, supra, at 536, 671 N.E.2d at 310, citing 89 Ohio Jurisprudence 3d (1989) 358-359, Trial, Section 292, andLewistown Foundry Machine Co. v. Hartford Stone Co. (1915),92 Ohio St. 76, 110 N.E. 515. Whether the trial court exercised common sense does not resolve the assigned error given that plaintiffs have failed to demonstrate prejudice as a result of the court's action. Accordingly, I would overrule plaintiffs' fourth cross-assignment of error for the above-mentioned reasons only.

C. Remaining Assignments of Error I concur in the majority's rationale that Concrete is not entitled to indemnification because Concrete was actively negligent, though I disagree with the majority's discussion of contribution and proportionate awards.

As to ODOT's first assignment of error regarding deductions for collateral recovery under R.C. 2743.02(D), that section states in pertinent part: "Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant."

While R.C. 2743.02(D) allows the state to deduct a collateral recovery from the award to a claimant, R.C. 2744.05(B), concerning damages recoverable against political subdivisions, speaks in terms of collateral "benefits." The Ohio Supreme Court has defined "benefit" under R.C.2744.05(B) to mean "``"financial assistance received in time of sickness, disability, unemployment, etc. either from insurance or public programs such as social security."'" Buchman v. Wayne Trace Local School Dist.Bd. of Edn. (1995), 73 Ohio St.3d 260, 264, 652 N.E.2d 952, 957, quotingVogel v. Wells (1991), 57 Ohio St.3d 91, 98, 566 N.E.2d 154, 161, and Black's Law Dictionary (6 Ed. 1990) 158. ODOT has proffered no reason why the General Assembly's allowance of a deduction for collateral source benefits by political subdivisions should be treated more narrowly than the allowance for such a deduction by the state. A judgment against a joint or concurrent tortfeasor is not a benefit under the analogousVogel interpretation and is properly considered in the context of contribution and indemnification. Cf. State ex rel. Wallace v. Tyack (1984), 13 Ohio St.3d 4, 5, 13 OBR 379, 380, 469 N.E.2d 844, 846; Stateex rel. Brown v. Shoemaker (1988), 38 Ohio St.3d 344, 345, 528 N.E.2d 188,189-190 (judgment is "not necessarily a collateral source of recovery for damages alleged to be caused by [the state]").

Indeed, even under the literal language of R.C. 2743.02(D), until the plaintiffs satisfy one of the two judgments, both defendants are liable for the full amount. In this context, a pending, enforceable judgment is not a recovery until that judgment is executed against a defendant. At that time, the principles already mentioned regarding prohibitions against double recovery obviate the need for a broad application of the collateral recovery rule. Accordingly, I would overrule ODOT's first assignment of error.

D. Conclusion For the foregoing reasons, I would affirm in part and reverse in part the judgment of the Court of Claims in case No. 98AP-141 and remand for consideration of total damages incurred by plaintiffs and plaintiffs' decedents, in accordance with this opinion's disposition of plaintiffs' first cross-assignment of error in the Concrete case.

I would also reverse the judgment in case No. 98AP-180 and remand that case to the trial court for a new trial, solely on the issue of damages, due to the error in instructions on damages regarding the survivorship claim. At that time, the trial court would be required to instruct the jury to find the total damages plaintiffs sustained as a result of the incident at issue. With that instruction, the trial court would have properly derived two awards for total damages: one from the jury and its own from the case against ODOT.

Assuming ODOT and Concrete would have raised issues of contribution and apportionment, the trial court, if it determined that the harm was apportionable, would then determine the proportionate liability of the defendants. Because ODOT cannot be bound by the jury's award of damages, Concrete would still be solely liable for damages the jury awarded to the extent they exceeded the trial court's total award in the ODOT case.

¹ Fed.R.Civ.P. 51 provides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." The rule is "essentially identical to Civ.R. 51(A)."Presley v. Norwood (1973), 36 Ohio St.2d 29, 32, 65 O.O.2d 129, 131,303 N.E.2d 81, 84.