Nevins v. Ohio Dept. of Transp.

• Citation: 724 NE 2d 433,132 Ohio App.3d 6
• Decision Date: 22 December 1998
• Docket Number: No. 98AP-141, No. 98AP-281., No. 98AP-180
• Parties: NEVINS et al., Appellees and Cross-Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION et al., Appellants and Cross-Appellees.
• Court: United States Court of Appeals (Ohio)

132 Ohio App.3d 6

724 NE 2d 433

NEVINS et al., Appellees and Cross-Appellants, v. OHIO DEPARTMENT OF TRANSPORTATION et al., Appellants and Cross-Appellees.

Nos. 98AP-141, 98AP-AP-281.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided December 22, 1998.

Ruppert, Bronson, Chicarelli Waite, Schneider, Bayless & Chesley, Stanley M. Chesley and Terrence L. Goodman, for appellees and cross-appellants Archie L. Nevins et al.

Betty D. Montgomery, Attorney General, Susan M. Sullivan and Eric A. Walker, Assistant Attorneys General, for appellant and cross-appellee Ohio Department of Transportation.

Reminger & Reminger Co., L.P.A., Douglas P. Holthus, Mark E. Defossez and Clifford C. Masch, for appellant and cross-appellee Concrete Construction Co. JOHN C. YOUNG, Judge.

Plaintiffs-appellees and cross-appellants, Archie L. Nevins, Betsy Nevins, and the estates of decedents Janice, Jonathan, and Anna Nevins ("Nevins"), in addition to defendants-appellants and cross-appellees, Ohio Department of Transportation ("ODOT"), and Concrete Construction Company ("Concrete"), now appeal the judgments in two companion cases entered and filed on February 10, 1998 (case No. 95-07865-PR) and February 17, 1998 (case No. 94-14043).

This cause arose from an automobile accident that occurred on December 14, 1992 at the interchange of Interstate 70 ("I-70") west and Interstate 675 ("675") south. Archie Nevins was driving a van west on 1-70, carrying as passengers his wife Janice Nevins, his mother Anna Nevins, and his two children Jonathan and Betsy. It was dark and Archie Nevins, suddenly realizing that he was about to pass his exit, turned into the "gore" median, an area dividing 1-70 from the exit to 1-675. The Nevinses' van struck a six-inch concrete median divider at a speed of approximately sixty-five miles per hour. The van traversed the exit ramp, slid down an embankment and into a pond adjacent to the interchange. Janice, Anna, and Jonathan drowned as a result of the accident.

The Nevinses filed complaints against both ODOT and Concrete, the general contractor hired to complete modifications to the interchange, including the gore modification project. The Nevinses alleged negligence in the maintenance of the interchange at the time of the accident. Specifically, the Nevinses alleged that the gore was improperly marked as it lacked either signs or reflective markings. In addition, the Nevinses alleged that the interchange was improperly illuminated. The Nevinses' claims against ODOT were filed in the Court of Claims under case number 94-14043. The claims against Concrete were originally filed in the Franklin County Court of Common Pleas, but were later removed to the Court of Claims, as case number 95-07865-PR, based upon Concrete's third-party claim against ODOT for indemnification. As well, ODOT filed a third-party indemnification claim against Concrete. Originally, both ODOT and Concrete filed counterclaims for negligence against Archie Nevins. However, Concrete later dismissed its counterclaim.

The two cases were tried together between April 21 and April 30, 1997, with the case against Concrete being tried to a jury at the request of the parties, and the case against ODOT tried to a judge pursuant to R.C. 2743.11. The jury found Concrete liable to the Nevinses, and awarded damages in the amount of $1,654,417.62. In the companion case, the trial court found ODOT liable, and awarded the Nevinses $1,570,000 in damages against ODOT. This award was adjusted to reflect an offset due to the contributory negligence of Archie Nevins. Final judgments were entered in the two cases, and these consolidated appeals followed.

The Nevinses now assert the following cross-assignments of error regarding the judgment in the case against ODOT:

"I. The trial court erred as a matter of law when it failed to enter a final judgment entry awarding total damages to the plaintiffs in the amount of $3,224,417.62 against ODOT, and instead, apportioned those total damages between the defendants, Ohio Department of Transportation and Concrete Construction Co., Inc.

"II. The trial court erred as a matter of law in failing to specify the separate amounts of survivorship damages, compensatory damages for wrongful death, funeral and burial expenses, and medical bills in its judgment entry in favor of plaintiffs and against ODOT.

"III. The trial court erred as a matter of law when it failed to award prejudgment interest pursuant to Ohio Rev. Code 2743.18."

The Nevinses further assert the following cross-assignments of error regarding the judgment in their case against Concrete:

"[IV]. The trial court erred in overruling plaintiffs' motion for new trial on damages where the jury was obviously misled and awarded only partial damages.

"[V]. The trial court erred in failing to instruct the jury as to concurrent but independent negligence.

"[VI]. The trial court erred as a matter of law in failing to instruct the jury regarding the decedents' survival claims.

"[VII]. The trial court erred as a matter of law when it refused to instruct the jury that defendant, Concrete Construction Co., Inc., had withdrawn its claim of negligence against Archie Nevins.

"[VIII]. The jury verdict is against the manifest weight of the evidence."

ODOT asserts the following assignments of error:

"Assignment of Error No. 1

"The Trial Court Erred in Failing to Deduct Collateral Sources Pursuant to R.C. 2743.02(D).

"Assignment of Error No. 2

"The Trial Court Erred in Holding That ODOT Was Negligent Per Se for Failing to Install a Gore Exit Sign.

"Assignment of Error No. 3

"The Trial Court Erred in Ruling That ODOT Was Negligent For Not Installing Full Pattern Pavement Markings Before the Accident.

"Assignment of Error No. 4

"The Trial Court Erred in Finding That ODOT's Alleged Acts of Negligence Proximately Caused the Accident and the Deaths of the Nevins Family."

Concrete asserts the following assignment of error:

"The trial court erred in failing to order that ODOT was required to fully indemnify Concrete Construction Company."

Initially, we note that a reviewing court is not to substitute its judgment for that of the trial court, but may reverse only where it finds an abuse of discretion. An abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218-219, 5 OBR 481, 482, 450 N.E.2d 1140, 1141-1142.

Actions in the Court of Claims against the state cannot be tried to a jury. R.C. 2743.11. However, those cases against a nonstate party may be tried to a jury if requested. Id. The trial judge has discretion to try cases separately, pursuant to Civ.R. 14(A). This court has held that given the inherent nature of the Court of Claims, the possibility that independent or inconsistent verdicts may be rendered in the same case is quite real. Cincinnati Ins. Co. v. Keneco Distributors, Inc. (Nov. 13, 1997), Franklin App. No. 97API04-459, unreported, 1997 WL 710604. See, also, Moritz v. Troop (1975), 44 Ohio St.2d 90, 73 O.O.2d 349, 338 N.E.2d 526. The cases against ODOT and Concrete were not consolidated, but they were heard together in the Court of Claims. The Concrete action was tried to a jury, while the ODOT action was not. See R.C. 2743.11, 2743.02(E); Torpey v. State (1978), 54 Ohio St.2d 398, 8 O.O.3d 403, 377 N.E.2d 763.

The following are cross-assignments of error as referenced in the Nevinses' original brief.

In their first assignment of error, the Nevinses argue that the trial court erred in not entering judgment against ODOT in the amount of $3,224,417.62, based upon the total of the two awards in favor of the Nevinses. In his decision, the trial judge held that, in the instant separate actions, "this court rendered a judgment against ODOT in the amount of $1,570,000. In the [Concrete] case, a jury rendered a judgment against Concrete in the amount of [$1,654,417.62]. The court finds that the amount of these [two separate] judgments are directly related to the proportion of negligence that each party exhibited."

As has been mentioned above, the nature of the proceedings in the Court of Claims makes it impossible for the trial court to make a single determination of damages in cases involving a jury trial for a nonstate party and a bench trial for the state. However, in the instant matter, while the damages against the two defendants individually cannot be greater than those awarded against them in their respective trials, the trial court makes it clear that the separate awards do, while remaining separate, combine to make a total award to the Nevinses in the amount of $3,224,417.62. Indeed, the Nevinses, in their motion to the trial court dated January 8, 1998, concede that the awards are proportionate as against the parties and do combine for the total they seek.

Therefore, we find that the trial court did not err in not entering final judgment for the combined award against ODOT, and the Nevinses' first cross-assignment of error is overruled.

Regarding the Nevinses' second cross-assignment of error, this court finds that pursuant to R.C. 2315.19(B), the court in a nonjury action shall return a general verdict specifying the plaintiff's total compensatory damage. That verdict should also set forth those portions of the damages that represent economic and noneconomic damage, and should also include burial expenses and survival claims damages. R.C. 2323.54. See, also, Atkinson v. Archer (Nov. 29, 1994), Franklin App. No 94APE03-416, unreported, 1994 WL 672875.

The record indicates that the trial judge, while determining total proportionate damages against ODOT, did not separately state the amounts of individual compensatory damages, funeral and burial expenses, and survival claims. In this regard, the Nevinses' second assignment of error is sustained, and this cause is remanded to the trial court for a finding on damages in accordance with...