Nevins v. Ohio Department of Transportation

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 (“1-70”) west and Interstate 675 (“I-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 coun *15 terclaims 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. “HI. 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: *16 “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 *17 upon the total of the two awards in favor of the Nevinses. In his decision, the trial judge held that, in the instant separate action's, “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 plaintiffs 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 this opinion. The Nevinses’ third cross-assignment of error regarding prejudgment interest is not well taken. While R.C. 2743.18(A) does permit prejudgment interest to be allowed in a Court of Claims action where judgment is rendered against the state, such interest is permitted only in the context of contractual disputes as defined by R.C. 1343.03(A). See R.C. 1343.03(D). *18 The Nevinses’ action sounded in tort - and not in contract. Therefore, prejudgment interest is not provided for against ODOT under R.C. 2743.18. The Ohio Supreme Court has held that “in determining whether to award prejudgment interest pursuant to R.C. 2743.18(A) and 1343.03(A), a court need only ask one question: Has the aggrieved party been fully compensated?” Royal Elec. Constr. Corp. v. Ohio State Univ. (1995), 73 Ohio St.3d 110, 116, 652 N.E.2d 687, 691. In the instant matter, both the trial court and the jury awarded the Nevinses compensatory damages. Therefore, the Nevinses have been fully compensated for their damages, and prejudgment interest pursuant to R.C. 2743.18(A) is not applicable. Further, this court has held that a combined reading of the language of R.C. 2743.18(A) with that of R.C. 1343.03 does not support a finding in favor of an award for prejudgment interest in a negligence action such as in the instant matter. Moore v. Univ. of Cincinnati Hosp. (1990), 67 Ohio App.3d 152, 586 N.E.2d 213. Therefore, the Nevinses’ third cross-assignment of error is overruled. The following assignments of error are contained in the Nevinses’ appeal in the Concrete case and will be numbered consecutively with the assignments in the original brief. The Nevinses assert in their fourth cross-assignment of error that the jury was misled by the court and as a result mistakenly awarded only partial damages based upon Concrete’s proportionate share of the total damages. The determination of whether the granting of a motion for a new trial is warranted under the circumstances is within the sound discretion of the trial court. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690, 591 N.E.2d 762, 769; Atkinson v. Internatl. Technegroup, Inc. (1995), 106 Ohio App.3d 349, 666 N.E.2d 257. As has been stated above, the nature of the Court of Claims renders it impossible for a jury to determine damages against the state. R.C. 2743.11. Therefore, the case against Concrete could not be argued to a jury with the state as a party. R.C. 2743.02(E). Because of the statutory provisions governing actions brought in or removed to the Court of Claims, such a concurrent, bifurcated trial was a necessity. As a result, the jury in the Concrete action could only determine the liability of Concrete and could not render a verdict as to ODOT. This court has noted, in Cincinnati Ins., supra, that the possibility of inconsistent verdicts where state actions and nonstate actions are tried concurrently to a judge in one case and a jury in another are a natural consequence of the inherent nature of the Court of Claims. Id. In the instant matter, the record reflects that the jury in the Concrete case was instructed that, because of the unique nature of the cases, it was being asked to determine liability and *19 damages only as to Concrete. This court has found that a trial court does not abuse its discretion when causes such as the instant case are tried separately. Cincinnati Ins., supra. The record reflects that the jury'awarded damages against Concrete as it was instructed to do by the trial court, and pursuant to the provisions of R.C. 2743.01 et seq., governing such actions. We find that the trial court did not err in denying the Nevinses’ motion for a new trial, and the Nevinses’ fourth cross-assignment of error is overruled. This court finds that the trial court did not err in refusing to instruct the jury as to concurrent but independent liability, as argued by the Nevins in their fifth cross-assignment of error. The record reflects that the trial court informed the jury throughout the trial that both ODOT and Concrete were defendants, but that the jury was to determine liability only as to Concrete. See R.C. 2743.11. Concrete asserts that Nevinses waived their right to appeal the issue of jury instruction by failing to raise it at the trial level. We shall, in any event, review these issues in the interests of justice. The Nevinses assert that it was plain error for the trial court not to instruct the jury to determine the liability and damages of both ODOT and Concrete. Application of the plain error doctrine permits correction of an error when that error is clearly apparent on the face of the record and the error was prejudicial to the party asserting the error. Atkinson, supra. As has been stated, the trial court could not have the liability of the state determined by a jury. R.C. 2743.11. Therefore, there is no error on the face of the record regarding the instruction to the jury to determine the liability of only Concrete. Also, the record reflects that the Nevinses did receive separate verdicts for damages against both ODOT and Concrete in the two cases and, therefore, there was no prejudice to the Nevinses in this regard. In addition, Civ.R. 51(A) provides, in part, “[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.” The record does not reflect that the Nevins made such objection to the asserted failure to give the jury instructions here requested. There being no error on the face of the record and no apparent prejudice to the Nevinses, coupled with the Nevinses’ failure to object to the lack of instruction concerning concurrent negligence, the Nevinses’ fifth cross-assignment of error is overruled. In their sixth cross-assignment of error, the Nevinses assert that the trial court erred in failing to give a proper instruction to the jury as to the survival claims brought by the estates of decedents Janice, Anna, and Jonathan Nevins, and that the jury misunderstood the instructions it was given. The Nevinses base their *20 argument on the assertion that the jury’s award of survival claims was illogical and was lower than the award sought by the estates of the decedents. The law of Ohio provides that it is the jury, as trier of fact, that shall determine the compensation and the damages to be awarded in a case. Preston v. Rappold (1961), 172 Ohio St. 524, 528, 18 O.O.2d 62, 64, 178 N.E.2d 787, 790. The assessment of damages is a matter within the sole province of the jury. Litchfield v. Morris (1985), 25 Ohio App.3d 42, 25 OBR 115, 495 N.E.2d 462. A jury verdict on damages supported by some competent, credible evidence will not be reversed on appeal. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. This court finds from a review of the record, that the trial judge did correctly instruct the jury on the survival claims, and that upon making its determination, the jury awarded damages on the survival claims in addition to other damages awarded to the decedents’ estates, and awarded only compensatory damages to Archie and Betsy Nevins. From the record, this court concludes that the trial court’s instructions regarding the decedents’ causes of action for injuries to person or property pursuant to the survival of claims statute, R.C. 2305.21, were properly given, and that the jury rendered a verdict for survival claims for decedents. The mere fact that the jury returned a verdict for survival damages that was lower than those sought is not in itself indicative that the jury misunderstood its duty. Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601, 612, 597 N.E.2d 474, 482-483; Millard v. CSX Transp., Inc. (Feb. 10, 1998), Franklin App. No. 97APE05-717, unreported, 1998 WL 63546. The evidence suggests that survival instructions were given, and that the jury understood the instructions and made its determinations accordingly. Therefore, we do not find that the trial court erred in its survival claim instructions. .Accordingly, the Nevinses’ sixth cross-assignment of error is overruled. In their seventh cross-assignment of error, the Nevinses assert that the trial court erred in failing to instruct the jury regarding Concrete’s withdrawal of its negligence counterclaim against Archie Nevins. In Snyder v. Stanford (1968), 15 Ohio St.2d 31, 44 O.O.2d 18, 238 N.E.2d 563, the Ohio Supreme Court set forth the following three factors for determining whether a trial court’s charge on the issue of contributory negligence constitutes prejudicial error: (1) was contributory negligence properly in issue at the trial, (2) was the trial court’s instruction on that issue so confusing, ambiguous and misleading to the jury to require reversal, and (3) did the trial court’s instruction impose upon the party a greater burden of proof concerning contributory negligence than is required by law. Id. at 39, 44 O.O.2d at 22-23, 238 N.E.2d at 569-570. *21 This court finds that, while the issue of contributory negligence was properly in issue at trial, the trial court’s instruction was not confusing, ambiguous and misleading, and the instruction did not place a greater burden of proof on the Nevinses than that required by law. As a matter of fact, the court’s instructions placed no burden of proof on the Nevinses regarding contributory negligence because the jury was not asked to consider the negligence of Archie Nevins in making its decision. The only instruction given to the jury was for it to consider whether or not Concrete was negligent, and whether or not Concrete’s actions were the proximate cause of the accident. The jury found that Concrete’s negligence was the proximate cause of the injuries suffered, and awarded damages to the Nevinses accordingly. There is no evidence in the record that shows that the failure of the court to give a specific instruction as to Concrete’s withdrawal of its counterclaim was prejudicial to the Nevinses, affected a substantial right of the Nevinses, or that the jury even considered the negligence of Archie Nevins in making its determination. Any such instructional error is therefore harmless. Civ.R. 61. Accordingly, the Nevinses’ seventh cross-assignment of error is overruled. The Nevinses contend, in their eighth cross-assignment of error, that the jury verdict was against the manifest weight of the evidence in that the damage awards were inadequate. As has been stated above, the fact that the jury’s award of damages is lower than that desired or sought is not in itself indicative that the jury misconstrued the evidence. Fantozzi, supra. When the claim is that the jury verdict is against the manifest weight of the evidence, a reviewing court must examine the entire record to determine if the verdict is supported by some competent, credible evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. An appellate court will not overturn a verdict supported by competent, credible evidence. Seasons Coal, 10 Ohio St.3d at 80, 10 OBR at 410-411, 461 N.E.2d at 1276-1277. Without evidence in the record reflecting that the jury was wrongfully influenced or that the award was manifestly excessive or inadequate, a reviewing court may not interfere with a jury’s verdict on damages. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 655, 635 N.E.2d 331, 345-346. When the award to the injured party is so inadequate as to deny the party justice, the trial court should grant a new trial. Miller v. Irvin (1988), 49 Ohio App.3d 96, 98, 550 N.E.2d 501, 503-504. Upon review, the asserted inadequate award must shock the reasonable sensibilities in order to be determined against the manifest weight of the evidence. Bailey v. Allberry (1993), 88 Ohio App.3d 432, 624 N.E.2d 279. *22 In the instant matter, there is no evidence that the jury award against Concrete was unreasonable. A review of the record reveals that the amount awarded against Concrete was equal to, if not greater than, the verdict against ODOT. Further, with regard to the Nevinses’. claim that the jury determination as to funeral and burial expenses was unreasonably low, this court finds that the jury, as trier of fact, may review the evidence available and make the award it deems reasonable and just under the circumstances. Preston, supra. The jury’s award does not shock the senses, and the award is not manifestly inadequate. There being no evidence that the jury’s verdict is against the manifest weight of the evidence, the Nevinses’ eighth cross-assignment of error is overruled. In its first assignment of error, ODOT argues that the trial court erred in failing to deduct collateral recovery by the Nevinses against Concrete, pursuant to R.C. 2743.02(D). We disagree. R.C. 2743.02(D) provides in part that “[r]ecoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant.” Black’s Law Dictionary (6 Ed.1991) 179, defines the term “collateral” to mean additional, supplementary, complementary or accompanying as a coordinate. The Ohio Supreme Court has held that a collateral benefit is deductible as a setoff only to the extent that the loss that it collaterally compensates is included in the award. Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 652 N.E.2d 952. A deductible benefit must be matched to the award for which setoff is sought. Van Der Veer v. Ohio Dept. of Transp. (1996), 113 Ohio App.3d 60, 69, 680 N.E.2d 230, 235-236. See, also, Cincinnati Ins., supra. In other words, a collateral source benefit is one that is in excess of one hundred percent of the total damages awarded to the plaintiff. As noted by the trial court, the damages awarded against Concrete were not supplemental to those awarded against ODOT. Rather, the damages constituted Concrete’s proportionate share of the Nevinses’ entire damage award. The Nevinses’ damages attributable to Concrete are, therefore, not collateral to or additional to ODOT’s share, but are part of the primary damages awarded to the Nevins. The damages awarded against Concrete make up their share of the one hundred percent total damages awarded to the Nevinses and are not a collateral source under R.C. 2743.02(D). Therefore, the trial court did not err in refusing to set off ODOT’s damages against those of Concrete. ODOT’s first assignment of error is overruled. ODOT argues in its second assignment of error that the trial court erred in finding that it was negligent per se for failing to install a gore exit sign marking the exit from 1-70 west to 1-675 south, and in its fourth assignment of *23 error ODOT contends that Archie Nevins’s actions were the intervening, superseding proximate cause of the accident. In substance, ODOT asserts that the court’s decision was against the manifest weight of the evidence. A reviewing court will not reverse a trial court’s decision where there is sufficient evidence upon which the court could reasonably conclude that all the elements of the claim have been proven. State v. Conley (Dec. 16, 1993), Franklin App. No. 93AP-387, unreported, 1993 WL 524917. “Sufficiency of the evidence” is a term of art meaning that legal standard applied to determine whether the evidence is legally sufficient to support a verdict as a matter of law. Although a verdict may be sustained by the sufficiency of the evidence, a reviewing court may conclude that the judgment is against the weight of the evidence. Weight of the evidence regards the evidence offered at trial in supporting one side of an issue rather than the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541, 546-547. In order to establish actionable negligence, a plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately caused from said breach. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469-470. The trial court determined that ODOT’s failure to follow statutory standards regarding the posting of the gore exit sign rendered ODOT negligent per se. While a finding that a party is negligent per se provides proof that a defendant breached a duty to the plaintiff, there still must be shown that the breach proximately caused injury to the plaintiff. ODOT concedes that it had a duty to maintain its highways in a reasonably safe condition. See Knickel v. Dept. of Transp. (1976), 49 Ohio App.2d 335, 3 O.O.3d 413, 361 N.E.2d 486. The court found that the interchange was marked as “Exit 44,” thereby giving rise to a statutory duty on the part of ODOT to install a gore exit sign at the gore apex. Section 2V-1 of the Ohio Manual of Uniform Traffic Control Devices (“OMUTCD”) provides that the major signs to be posted at exits and exit approaches are advance guide signs, exit direction signs, and gore signs. These signs are considered to be necessary to provide guidance to motorists using the highways and interchanges. See OMUTCD, Section 2V-6. In this case, the trial court found that ODOT failed to install the necessary signage, breaching its statutory duty to maintain the highway in a reasonably safe manner. Therefore, the court did not err in finding that ODOT was negligent per se. The record reflects that ODOT was required to post a gore sign and did not, and that the Nevins family was injured as a result of their van striking the gore divider. The question then remains whether the evidence in the record *24 supports a finding that ODOT’s failure to post the gore sign proximately caused the Nevinses’ injury. In Mussivand v. David (1989), 45 Ohio St.3d 314, 544 N.E.2d 265, the Ohio Supreme Court explained: “ * * * [T]o establish proximate cause, foreseeability must be found. In determining whether an intervening cause ‘breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence. If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence.’ ” Id. at 321, 544 N.E.2d at 272. As the trier of fact in the Nevinses’ case against ODOT, the trial court made three important findings of fact: that at the time of the accident (1) no gore sign was posted at the gore apex although one was required, (2) the gore was not adequately marked by reflective channeling strips, and (3) ODOT had not restored lighting to the I-70/I-675 interchange, thereby decreasing visibility in the gore area. The trial court went on to determine that the highway and interchange were open to motorist traffic. It can be reasonably inferred that traffic traveling at sixty-five miles per hour on an open highway may seek to exit at an interchange and is a foreseeable event in light of the circumstances. Archie Nevins was driving his van at sixty-five miles per hour on an open highway when he attempted to exit at the I-70/I-675 interchange. During this attempted exit, the van struck the gore median and slid into the pond, causing the Nevinses’ injuries. The trial court found that, coupled with the evidence of lack of interchange lighting and gore pavement markings, Archie Nevins would not have struck the concrete median but for the lack of the sign. Based upon a careful review of the record, we find that the evidence is sufficient to support the court’s findings that the accident was foreseeable, ODOT was negligent and its negligence was a proximate cause of the Nevinses’ injuries. Therefore, the court’s determination was not against the manifest weight of the evidence, and ODOT’s second assignment of error is overruled. The evidence is further sufficient to warrant a finding that, although certain actions taken by Archie Nevins may have been negligently performed, those actions were normal incidents of the risks that ODOT created. Accordingly, the actions of Archie Nevins were not superseding causes of the injuries suffered by the Nevinses. As the trial court noted, the lack of a gore sign and pattern markings created a situation that left Archie Nevins unwarned and unaware of the gore median *25 hazard. As has been stated above, the evidence in the record reflects that, not being warned, Mr. Nevins attempted to exit at the interchange unaware that the concrete divider blocked his path. His van struck the concrete median, causing the van to slide into the pond. The negligently unmarked gore created the hazard that proximately caused the Nevinses’ injuries. Therefore, Mr. Nevins’s acts do not supersede ODOT’s own negligence as a proximate cause of the injury incurred. See Westfield Ins. Co. v. HULS Am., Inc. (1998), 128 Ohio App.3d 270, 714 N.E.2d 934. ODOT’s fourth assignment of error is therefore overruled. In its third assignment of error, ODOT argues that the trial court erred in ruling that ODOT was negligent for failing to install pattern pavement markings at the interchange in question. The trial court found that the negligent lack of a gore sign, coupled with the negligent lack of pattern markings and lack of lighting, contributed to the hazard created by ODOT’s negligent act that ultimately caused the injury to the Nevins family. While the evidence supports a finding that it was Concrete, not ODOT, that was the party responsible for placement of the pavement markings at the gore, the record also reflects that ODOT had a duty to protect the motoring public by ensuring that the interchange was adequately marked by those markings. Although the record reflects that Concrete had the duty to install adequate pavement markings, and that it had breached this duty, the record also reflects that ODOT failed to ensure that the markings were properly installed, breaching its duty to the public in this regard. Therefore, the trial court’s decision regarding ODOT’s negligence concerning pavement markings was not in error. Further, we find that, based upon the court’s finding of negligence regarding ODOT’s failure to post a gore sign, if indeed the court’s ruling as to ODOT’s negligence concerning the pavement markings were to be considered error, it would be harmless error. Civ.R. 61. This court has held that, where the trial court premises liability on more than one negligent act, an error in holding one of the acts negligent is harmless. Ridenour v. Ohio Dept. of Transp. (Dec. 23, 1997), Franklin App. No. 97API05-731, unreported, 1997 WL 798296. Therefore, the trial court could have found ODOT negligent regardless of whether or not it breached a duty to place the pavement markings. The alleged error of the trial court would not affect a substantial right of ODOT, and for these reasons, ODOT’s third assignment of error is overruled. In its sole assignment of error, Concrete asserts that the trial court erred in failing to order ODOT to fully indemnify Concrete for the damages awarded against Concrete by the jury. This argument is based upon the premise that Concrete was a contractor that merely followed the specifications set out by *26 ODOT, and that any liability for negligence should ultimately rest with ODOT. This argument fails, however, for the reasons stated herein. This court has held: “[I]n order to qualify for indemnification, the party claiming the right must be merely passively negligent. Conversely, where two parties actively participate in the commission of a tort they are deemed concurrent or joint tortfeasors, and no right of indemnification exists between the two, although a right of contribution may be proper.” Mahathiraj v. Columbia Gas of Ohio, Inc. (1992), 84 Ohio App.3d 554, 564, 617 N.E.2d 737, 744. See, also, Reynolds v. Physicians Ins. Co. of Ohio (1993), 68 Ohio St.3d 14, 16, 623 N.E.2d 30, 31-32. A party is deemed to be actively negligent when the tort committed is through the tortfeasor’s actual participation in the tort or his knowing acquiescence in the continuation of a dangerous situation that gives rise to the injury. Lattea v. Akron (1982), 9 Ohio App.3d 118, 122, 9 OBR 182, 185-186, 458 N.E.2d 868, 872-873. Section 7A-4 of the OMUTCD provides that the provisions for public protection contained within the manual apply to both the state highway department and to contractors employed in road construction. Concrete was employed by ODOT in the interchange construction project, and, therefore, had an active duty to provide for the public protection. See, also, Fannin v. Cubric (1970), 21 Ohio App.2d 99, 50 O.O.2d 206, 255 N.E.2d 270. The concrete median apparently functions as an island barrier to channel traffic going onto the interchange, keeping such traffic separate from that of 1-70 proper. Section 4A-11 of the OMUTCD provides that the approach end of a traffic channelization island must be provided with a maximum degree of warning to motorists of the presence of the island. Gore pavement markings, as well as proper signage and illumination, are among the approved methods of warning outlined in section 4Arll. The technical requirements for proper pavement markings are set forth in Section 3 of the manual. Section 3B-26 outlines the pavement markings that are to be utilized in marking an exit channel or gore. The markings consist of a solid white triangle delineated as a neutral area placed in front of the median island. The base of the triangle abuts the island and the apex extends away from and in front of the median. Diagonal markings are applied within the triangle, and the apex of the island itself is to be painted white. All markings are to be composed of reflective materials capable of being illuminated by the headlights of a vehicle on the highway. Figures P-11 and P-12, contained in Section 3 of the OMUTCD, indicate that such pavement marking configurations are to be used as a warning to the approach end of a traffic channelization island such as was *27 constructed at the I-70/I-675 interchange. The purpose of the markings is to warn the traveling public of the median obstruction separating the interchange from the highway. At trial, Concrete conceded it had a duty to place pavement markings in the gore median, and failed to do so. This breach of duty was claimed in the Nevinses’ complaint and was alleged as a proximate cause of the Nevinses’ injuries. Concrete’s failure to install the markings was presented to the jury as evidence of Concrete’s negligence. Based upon the evidence presented, the jury found Concrete’s negligence to be the proximate cause of the Nevinses’ injuries. The record reflects that Concrete displayed active negligence through its knowing decision not to install the required pavement markings. The trial court also found that Concrete displayed negligence in failing to install traffic control devices at the interchange. Therefore, because Concrete was found to be actively negligent and jointly liable to the Nevinses, its claim for indemnification is not well taken. However, the Ohio Supreme Court has held that the Ohio statutes regarding joint tortfeasors, R.C. 2307.31 and 2307.32, permit a defendant, under certain circumstances, to recover as contribution from the other tortfeasor a portion of the damages paid to the plaintiff. Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, 202, 690 N.E.2d 502, 506. Notwithstanding the fact that ODOT was found to be liable in tort to the Nevins family, Concrete is not automatically entitled to contribution from ODOT. Although both ODOT and Concrete, in their separate actions, were found to be liable in tort to the Nevinses, the Supreme Court has held that liability for contribution is different and distinct from the liability for the jointly committed tort. MetroHealth Med. Ctr. v. Hoffmann-La Roche, Inc. (1997), 80 Ohio St.3d 212, 217, 685 N.E.2d 529, 533. The Fidelholtz court stated that the goal of the joint tortfeasor statutes was to ensure that each tortfeasor would share the burden of making the injured party whole. Id. at 203, 690 N.E.2d at 506-507. The right to contribution is the right to recover from another who is also liable for the proportionate share of that joint tortfeasor’s liability. Frank Lerner Assoc., Inc. v. Vassy (1991), 74 Ohio App.3d 537, 547, 599 N.E.2d 734, 740. Given the evidence in the record, this court concludes that Concrete is not entitled to contribution from ODOT. Concrete was found to have breached its duty to install proper pavement markings or otherwise properly mark the gore median, and the damages awarded against Concrete were determined to be for Concrete’s proportionate share of the total damages suffered by the Nevinses. The award against ODOT was determined to be ODOT’s proportionate share of the total. Ordering ODOT to pay contribution to Concree would force ODOT to *28 pay more than its determined proportionate share of the damages. Since both parties have been found liable for their share of the damages, Concrete is not entitled to contribution from ODOT. See R.C. 2807.31(B). The trial court did not err in finding that ODOT was not required to pay indemnification or contribution to Concrete. Concrete’s assignment of error is overruled. For the foregoing reasons, the Nevinses’ second cross-assignment of error is sustained, and their cross-assignments of error one, three, four, five, six, seven, and eight are overruled. ODOT’s assignments of error one, two, three, and four are overruled, and Concrete’s single assignment or error is overruled. The judgments of the Court of Claims are affirmed in part and reversed in part, and these causes are remanded to the Court of Claims of Ohio for disposition in accordance with this decision. Judgments affirmed in part, reversed in part and causes remanded. Mason, J., concurs. Peggy Bryant, J., concurs in part and dissents in part.