COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67738 FORRESTER SHARP, ET AL., : : Plaintiffs-Appellees : : vs. : : MR. C'S CHARTER SERVICE COMPANY, : : Defendant : JOURNAL ENTRY : and and : OPINION : ANDRE J. GOODRUM, : : Defendant-Appellee : : and : : CLEVELAND BOARD OF EDUCATION, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 14, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 243142 JUDGMENT : MODIFIED, AND AS MODIFIED, : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellees: Robert A. Boyd 2075 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendant, Mr. C's Charter Joanne Brown Service Company: 2136 Noble Road Cleveland, Ohio 44112 For defendant-appellee, George S. Coakley Andre J. Goodrum: REMINGER & REMINGER 113 St. Clair Avenue Suite 700 Cleveland, Ohio 44114 For defendant-appellant, Earle C. Horton Cleveland Board of Education: Linda L. Bickerstaff Harold C. Reeder National City - East Sixth Building 1965 East Sixth Street Suite 1000 Cleveland, Ohio 44114 -3- NAHRA, J.: In this personal injury action, defendant-appellant the Cleveland Board of Education (the "Board") appeals from the jury verdicts for plaintiffs-appellees Forrester and Christina Sharp and Edward Glass ("appellees") on their complaint and for defendant- appellee Andre J. Goodrum ("Goodrum") on his cross-claim. The Board also appeals from several of the trial court's rulings made during the action. The relevant facts follow. The Board owns and operates a fleet of buses to fulfill its obligation to furnish transportation for school children; however, it also obtains the services of minority-owned business enterprises ("MBE's") to provide "supplemental" transportation for small groups of students to places such as school athletic events. To obtain these supplemental services, the Board requests MBE's to submit "proposals" which meet specifications listed in the published request. These specifications indicate, e.g., the required size of the vehicles and that the drivers must have valid drivers' licenses. In October 1990, W. James Cobbins submitted a proposal to the Board on behalf of "Mr. C's Charter Service Company, Incorporated" ("Mr. C's") to provide such supplemental transportation services. On December 14, 1990, Ernestine Thomas, the Board's program officer for MBEs whose responsibility was to certify that an MBE -4- 1 submitting a proposal was "legitimate," sent a memorandum to her supervisor questioning Mr. C's application for certification on two grounds. In her memo, Ms. Thomas expressed concern that Cobbins had been the owner of a business with which the Board had had problems in the past and also that Cobbins had failed to include all the necessary documents with his application. She noted she would be conducting an "on-site visit" of Mr. C's in the near future. Sometime thereafter, upon ascertaining only that Mr. C's was a "legitimate" MBE, Ms. Thomas withdrew her objections to Mr. C's proposal and certified the company. Ultimately, the Board awarded Mr. C's a contract to provide supplemental transportation services to students. The contract between the Board and Mr. C's contained the following pertinent provisions: [T]he parties agree as follows: 1. SERVICES CONTRACTOR represents and warrants that it possesses the qualifications, resources, experience and qualified personnel for PROVIDING SUPPLEMENTARY FIELD TRIPS FOR STUDENTS, accordance with [the specifications]. 2. TERMS * * * 2.2 [S]hould CONTRACTOR default in the performance of any of its obligations under 1 At trial, Ms. Thomas explained that this meant that the business was actually owned and operated by a minority; it had nothing to do with the financial viability of the business. -5- this Agreement * * * after receipt of written notice thereof from the Board, and CONTRACTOR shall fail to remedy such default * * * then the Board may, at its option, terminate this Agreement as to CONTRACTOR as of the date CONTRACTOR received such Notice of Default. * * * 4. INSURANCE During the term of this Agreement, CONTRACTOR shall procure and keep in full force and effect Comprehensive General Liability Insurance (including Contractual Liability) in an amount of not less than One Million Dollars and Board shall be named as an additional insured. * * * 6. INDEMNIFICATION * * * 6.2 CONTRACTOR shall indemnify, defend, and hold harmless the Board * * * from and against all injury and damages of any kind * * * from all claims, suits, judgements (sic), liabilities, expenses, including attorney's fees, damages and loss of any kind to any person(s) which may arise out of the performance or non-performance of services under this Agreement * * * . 7. CONTRACTOR The parties hereto acknowledge and agree that CONTRACTOR is an Independent Contractor, and has no authority to bind the Board or otherwise act in any way as a representative of the Board. CONTRACTOR shall retain the right to exercise full control and supervision over its employees * * * . * * * 9. DEFAULT BY THE CONTRACTOR Any of the following events shall constitute defaults by CONTRACTOR; -6- a. EVENTS CONSTITUTING DEFAULT 1. Non-performance of any term, covenants or condition of this Agreement including but not limited to those contained in [the specifications] by the CONTRACTOR or any of its subcontractors within the time provided * * * . * * * 6. Failure to maintain the required insurance and equipment * * * . b. EFFECT OF DEFAULT In the event of any default by the CONTRACTOR, the Board may do any one or all of the following: 1. Terminate the Agreement * * * . (Emphasis added.) The specifications attached to the agreement indicated the "contractor" must provide the Board with "written certification" that the vehicles met safety requirements, and that failure to properly maintain the equipment would entitle the Board to terminate the agreement. On February 19, 1992, the Board's insurance manager sent a memorandum to the Board's director of purchasing noting that Mr. C's insurance certificate did not meet with the contract's specifications: the certificate was issued to Cobbins d.b.a. Mr. C's, stated automobile liability coverage rather than comprehen- sive liability coverage in the amount of only $300,000.00, and did not name the Board as an additional insured. The insurance manager stated Mr. C's "should be contacted * * * to complete the contract -7- package." However, no action was taken with regard to the memo. The record reflects that on February 12, 1992, one week prior to the date of the foregoing memo, the certificate of insurance issued to Mr. C's was cancelled by the insurance company due to nonpayment of the premium. Appellee Goodrum was hired by Mr. C's as a driver in January 1992. At trial, Goodrum testified that Mr. C's had seven previously-owned vehicles which it used to transport students. One vehicle was a 1983 Econoline mini-van. In September 1992, Goodrum experienced problems with the van's brakes. He reported the problem twice, to a Mr. C's mechanic and also to Cobbins; Goodrum on two different occasions was assured by those men the problem had been corrected. On September 17, 1992, Goodrum reported to Mr. C's place of business and picked up his "routing slip" for the day. This was a memorandum from the Board which specified the following: 1) the location of the students to be picked up; 2) the transportation contractor's required time of arrival at that location; 3) the time of the contractor's departure from the student's location; and 4) the required time of arrival at the athletic event's location. Goodrum proceeded to Aviation High School at the appointed time, picked up the students, then left on his way to the next stop. As he was exiting the freeway at about 2:50 p.m., however, he found that suddenly the van's brakes were not working. Goodrum attempted to apply the emergency brake but it, too, was nonfunctional. Goodrum could only maneuver the van through -8- traffic, flashing his lights and blowing his horn to alert other drivers that he had a problem with his vehicle. At that time, plaintiffs-appellees Forrester Sharp, his friend Edward Glass, and Sharp's nine-month-old daughter Christina, were sitting in a car that was stopped at a traffic light. They could see Goodrum's van approaching them, but their car was completely blocked by other cars at the intersection. Goodrum's van smashed into appellees' car and pushed it sideways into another car. After the impact, Sharp, who was in the driver's seat, found his left leg pinned between the car door and the steering wheel and his seat twisted to the right. Both his leg and his back were sprained. Glass, the front seat passenger, was slammed into the passenger-side door, and suffered four broken ribs which immobilized him for a time. Christina, who was strapped into a child's car seat in the rear, suffered some contusions. Goodrum received some medical attention after the accident. The students in the van apparently were unhurt. On November 25, 1992, appellees filed their complaint in the Cuyahoga County Court of Common Pleas against Mr. C's and Goodrum alleging their injuries were caused by the defendants' negligence. On February 1, 1993, Mr. C's filed an answer. Discovery proceeded in the action. On June 24, 1993, Goodrum filed an answer, a cross-claim against Mr. C's for indemnity and contribution, and a third-party complaint against the Board, stating that at the time of the -9- accident, he "was * * * an `employee' of" the Board and by virtue of that status, was "entitled to a defense and full indemnity." On July 21, 1993, with leave of the trial court, appellees filed an amended complaint adding the Board as a defendant. Appellees stated their injuries were proximately caused by the Board's negligence based upon three theories: 1) failure to investigate Mr. C's compliance with the terms of the parties' agreement; 2) respondeat superior; and 3) agency. On January 14, 1994, the Board filed an answer to Goodrum's third-party complaint, a cross-claim against Goodrum and Mr. C's, and an answer to appellees' amended complaint. In these pleadings, the Board asserted the defenses of lack of privity and statutory immunity. The Board further alleged that pursuant to the contract, Mr. C's was an independent contractor and the Board could not be held responsible for Mr. C's negligence. The record reflects that although Goodrum answered the Board's allegations, Mr. C's did not. On March 21, 1994, the Board filed two motions for summary judgment: one with regard to appellees' amended complaint and one with regard to Goodrum's cross-claim. In the first motion, the Board argued it was entitled to summary judgment with respect to appellees' claims for the following reasons: 1) the Board had immunity from appellees' suit 2 pursuant to either R.C. 2744.02(A)(1) or R.C. 2744.02(B)(2), since 2 R.C. 2744.02 states in relevant part as follows: 2744.02 Classification of functions of political subdivisions; liability; exceptions. -10- (A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or property function. * * * (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: (1) Except as otherwise provided in this division, political subdivision are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. * * * * * * (2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. * * * (5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political division is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code * * * . Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general -11- the contract clearly stated Mr. C's was an independent contractor and since the Board's action in choosing a provider of transportation services for students was a "governmental" function; 2) Mr. C's and Goodrum were not employees or agents of the Board at the time of the accident; and 3) appellees could prove neither a duty owed by the Board to them nor that the Board's actions proximately caused their injuries. In its second motion, the Board reiterated its position that Goodrum was not an employee and the Board had no control over his actions. The Board argued that it therefore could not be held liable on Goodrum's claim for indemnity. The Board supported both motions with the following: 1) affidavits of its treasurer and its director of "classified personnel" which essentially stated that Mr. C's and Goodrum were not listed as employees in the records; 2) copies of the pleadings filed in the case; 3) a copy of its contract with Mr. C's; and 4) an unverified copy of what purported to be a police report of the accident. On April 14, 1994, appellees responded to the Board's motion 3 with a brief in opposition. Appellees argued that the facts of this case fit within the exceptions to immunity listed in R.C. authorization that a political subdivision may sue and be sued. (Emphasis added.) 3 Appellees later filed a supplemental brief without documentary evidence. -12- 2744.02(B)(1), (2) and (5). Appellees contended that the Board's overseeing of Mr. C's compliance with contract terms was not a governmental function and that the contract's designation of Mr. C's as an independent contractor was not dispositive of that issue. Appellees further argued the Board's failure to comply with either the contract's terms or statutory insurance mandates was the proximate cause of their injuries since had the Board suspended the contract as it was required to do, Mr. C's would not have been transporting students on the day of the accident. Appellees supported their brief with the deposition testimony of Michael Malloy, the Board's chief of transportation, and with verified copies of several of the Board's internal documents. Malloy stated that had he known Mr. C's did not have insurance on its vehicles, he would have cancelled the contract. The documents indicated questions had been raised in 1990 and 1992 about Mr. C's with regard to compliance with contract requirements; however, no action was taken on the matter. On April 28, 1994, Goodrum filed a brief in opposition to the Board's motion for summary judgment on his cross-claim, stating merely that he joined in the relevant portions of appellees' response. On May 5, 1994, the Board filed a challenge to Goodrum's brief for Goodrum's failure to attach any documentary evidence. On May 6, 1994, the trial court denied the Board's motion for summary judgment without opinion. Thereafter, jury trial commenced on May 25, 1994. Neither Mr. C's nor its counsel appeared for the proceedings. -13- Prior to the appellees' presentation of evidence, the trial court heard arguments on the Board's motion in limine. The Board sought to prohibit the introduction of both its internal memos and any testimony regarding: 1) Mr. C's noncompliance with the contract's insurance requirements; 2) problems experienced with Cobbins' previous company; and 3) how Cobbins' new company, Mr. C's, became Board-certified as an MBE. The trial court denied the first two portions of the Board's motion but reserved its ruling on the last portion. Subsequently, prior to appellees' cross-examination of Ms. Thomas, however, the trial court permitted the testimony and exhibits to be introduced. In presenting their case to the jury, appellees testified in their own behalf and also cross-examined Ms. Thomas, Michael Malloy, and Goodrum. Furthermore, they presented into evidence photographs of the damage done to the car in which they were sitting, their medical records, the articles of incorporation of Mr. C's, the Board's contract with Mr. C's, and the Board's internal memos. After appellees had rested their case, the Board moved for a directed verdict. The trial court denied the motion. The Board then proceeded to reexamine Goodrum and Malloy before resting its case. Thereafter, the Board's renewed motion for a directed verdict was denied. Prior to instructing the jury, the trial court granted appellees' oral motion to amend their complaint to "conform with the evidence," viz., that the Board's actions could be construed as -14- 4 "reckless and wanton misconduct." The trial court also heard objections and arguments concerning the instructions to be given to the jury. Following closing arguments, the trial court once again sought the parties' input on jury instructions before they were 4 R.C. 2744.03 states in relevant part: 2744.03 Defenses or immunities of subdivision and employee. (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: * * * (5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose in bad faith, or in a wanton or reckless manner. (6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division, the employee is immune from liability unless one of the following applies: (a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; (b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; (c) Liability is expressly imposed upon the employee by a section of the Revised Code. (Emphasis added.) -15- given. The jury ultimately found for appellees on their complaint against Mr. C's and the Board. Each appellee was awarded damages against each defendant in separate amounts as follows: $2,000.00 for Christina Sharp, $8,000.00 for Edward Glass and $5,000.00 for Forrester Sharp. The jury also awarded judgment to Goodrum on appellees' complaint and on the Board's cross-claim against him. On Goodrum's cross-claim against the Board, judgment was granted to Goodrum and he was also granted damages against Mr. C's and the Board in the amount of $4,000.00. The jury granted judgment for the Board on only its cross-claim against Mr. C's; however, the judgment was for "$0.00" in damages. In the interrogatories propounded to it, the jury gave the following answers: 1) both Mr. C's and the Board were negligent and their negligence was "a proximate cause of the injuries received by [appellees];" 2) Goodrum was not negligent; 3) Mr. C's was not an independent contractor but was "an employee or agent of" the Board; 4) the Board's conduct was "wanton or reckless" and that conduct was "a proximate cause of the accident." At this point, the Board moved for a new trial, arguing that the jury's answers to the interrogatories were inconsistent with the verdict and the evidence, that the jury did not specify how the Board was negligent, and that an award of damages on Goodrum's cross-claim was inappropriate. The trial court denied the motion. The Board's subsequently-filed written motion entitled "motion for -16- judgment notwithstanding the verdict; motion for a new trial; and motion for remittitur" was also denied. The Board has filed a timely appeal in this court. Although it presents six assignments of error, a review of the Board's appellate brief reveals that many of the arguments raised in the first assignment of error are interrelated with assignments of error III through VI. In order to fulfill its duty pursuant to App.R. 12(A)(1), therefore, this court must address these together. I. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY DENYING THE CLEVELAND BOARD OF EDUCATION'S MOTIONS FOR SUMMARY JUDGMENT; MOTIONS FOR DIRECTED VERDICT; MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTIONS FOR A NEW TRIAL. III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY DENYING THE CLEVELAND BOARD OF EDUCATION'S MOTIONS IN LIMINE TO EXCLUDE INADMISSIBLE EXHIBITS AND INADMISSIBLE TESTIMONY PURSUANT TO RULES 402, 403, 407 AND 411 OF THE OHIO RULES OF EVIDENCE. IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY ISSUING MISLEADING, INAPPROPRIATE AND INCORRECT JURY INSTRUCTIONS. V. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY REFUSING TO RETURN THE JURY FOR FURTHER DELIBERATION, OR IN THE ALTERNATIVE, ORDERING A NEW TRIAL, PURSUANT TO RULE 49(B) OF THE OHIO RULES OF CIVIL PROCEDURE AS A RESULT OF IRRECONCILABLE INCONSISTENCIES BETWEEN THE JURY VERDICTS AND ANSWERS TO THE JURY INTERROGATORIES. VI. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY -17- GRANTING PLAINTIFFS-APPELLEES LEAVE TO AMEND THEIR AMENDED COMPLAINT. In its lengthy first assignment of error, the Board argues the trial court improperly denied its pretrial motions for summary judgment, its motions for directed verdict made during trial, and because of errors made during the proceedings, which it discusses in more detail in the other assignments of error, also its postjudgment motions. Especially with regard to the motions for summary judgment, directed verdict and judgment notwithstanding the verdict, the Board contends it was entitled to judgment as a matter of law on both appellees' complaint and Goodrum's cross-claim on the following grounds, viz., 1) appellees' evidence was insufficient to overcome the immunity granted by R.C. 2744.02(A)(1); 2) appellees' evidence was insufficient to demonstrate the Board owed a duty of care toward them; 3) appellees' evidence was insufficient to establish either an employment or an agency relationship between the Board and Mr. C's and Goodrum; 4) appellees failed to specifically plead allegations of wanton and reckless conduct; 5) appellees lacked "privity" to attack the terms of the contract between the Board and Mr. C's; and 6) Goodrum failed to produce evidence that he was an "employee" of the Board so as to support a judgment in his favor. This court had considered all of the above contentions in light of the record and has found them to be unpersuasive. -18- The standard of review on appeal when considering either a motion for summary judgment, a motion for directed verdict, or a judgment notwithstanding the verdict, is essentially the same: In each instance, the evidence is construed most strongly in favor of the party against whom the motion is directed, and the motion must be overruled unless from the evidence so construed reasonable minds could reach no other conclusion but that, under the applicable law, the movant is entitled to a judgment in his favor. Rayburn v. J.C. Penney Outlet Store (1982), 2 Ohio App.3d 463. (Emphasis added.) See, also, Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181; Civ.R. 56(C). It has been held that the determination of whether immunity may be invoked pursuant to R.C. Chapter 2744 is "`purely a legal issue, properly determined by the court prior to trial, * * * and preferably on a motion for summary judgment,'" Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396 at 400. This court has previously held that a plaintiff's failure to plead that the judgment or discretion of the appellees' employees was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner permit[s] the application of immunity to the appellants' claim of injury. Mackulin v. Lakewood Board of Education (Mar. 22, 1993), Cuyahoga App. No. 61808, unreported. (Emphasis added.) See, also, Keller v. City of East Cleveland (August 10, 1989), Cuyahoga App. No. 55773, unreported; Herd v. City of Shaker Heights (May 17, 1990), Cuyahoga App. No. 57001, unreported; cf., Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666; Epperly v. Medina City Bd. of Edn. (1989), 64 Ohio App.3d 74; Koch v. Avon Bd. of Edn. (1989), 64 Ohio -19- App.3d 78; Banchich v. Port Clinton Pub. School Dist. (1989), 64 Ohio App.3d 376 at footnote 2; Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287. However, in Continental Ins. Co. v. Whittington (1994), 74 Ohio St.3d 150, the supreme court stated the following: We hold that any error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made. [Footnote omitted.] * * * [W]here, * * * , a motion for summary judgment is denied upon a finding that genuine issues of material fact exist that must be determined at trial, and the subsequent trial on the issues raised in the motion support a final judgment for the party against whom the motion was made, that final judgment is not to be disturbed solely because it might have appeared before trial that no genuine issue of material fact existed. (Emphasis added.) Moreover, Civ.R. 15(B) states in relevant part: (B) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. (Emphasis added.) In this case, appellees predicated their theory of liability upon the Board's complete failure to monitor Mr. C's, one of its supplemental transportation providers, arguing that the Board's inaction negated the immunity granted by R.C. 2744.02(A)(1). -20- Appellees presented evidence that the Board's failure occurred despite the following: 1) several "red flags" raised concerning Mr. C's, one raised as early as a year and a half prior to the accident; 2) the mandates of R.C. 3327.09, which requires boards of education to procure motor vehicle insurance for vehicles used in the transportation of school children, and R.C. 4509.101, which prohibits the operation of motor vehicles without proof of liability insurance; and 3) the specific language of the contract with Mr. C's, which provided for termination of Mr. C's services for failure to comply with contract terms. Appellees also provided the testimony of Michael Malloy, both on deposition and at trial, who admitted that had the Board followed up on the "red flags," Mr. C's would not have been transporting school students on the day of the accident. Under the circumstances, both the trial court and the jury were correct in concluding the Board's actions were not protected by the immunity granted by R.C. 2744.02(A)(1). Indeed, the Board's omissions fit squarely within the exception to immunity set forth in R.C. 2744.03(A)(5) since the evidence proved that its judgment in hiring and overseeing Mr. C's was exercised in a wanton or reckless manner. Patton v. Cleveland (1994), 95 Ohio App.3d 21; Hallett v. Stow Bd. of Edn. (1993), 89 Ohio App.3d 309; see, also, Brodie v. Children's Services Bd. (1990), 51 Ohio St.3d 112. Moreover, the record demonstrates not only that the Board was aware of appellees' theory from the time of its filing of its motion for summary judgment, but that it was not prejudiced by the trial -21- court's action in permitting the post-trial amendment to the pleadings. Therefore, the trial court did not abuse its discretion in this matter. State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41. Undisputably, the Board could exercise discretion in choosing a provider of supplemental transportation. Tinkham v. Groveport- Madison Local School Dist. (1991), 77 Ohio App.3d 242. However, the evidence presented in this case was sufficient to remove the Board from the protection afforded by R.C. 2744.02(A)(1). Minnick v. Springfield Schools Bd. of Edn. (1992), 81 Ohio App.3d 545; Jackson v. Butler Cty. Bd. of Commrs. (1991), 76 Ohio App.3d 448; Epperly v. Medina City Bd. of Edn., supra. Cf., Colling v. Franklin Cty. Children Serv. (1993), 89 Ohio App.3d 245; Doe v. Jefferson Area Local School Dist. (1994), 97 Ohio App.3d 11; Zellman v. Kenston Bd. of Edn., supra; Crago v. Lorain Cty. Commrs. (1990), 69 Ohio App.3d 24. The Board also argues that appellees' evidence failed to show the Board owed them a duty of care; however, the statutes requiring motor vehicle liability insurance were enacted to protect persons in appellees' position as well as the Board and its employees. In addition, the contract's requirements and specifications were set forth to the same purpose. It was certainly foreseeable, therefore, that the Board's failure to monitor its supplemental transportation provider could lead to injuries such as appellees'. Focusing only on its own evidence, the Board further contends it was insufficient to demonstrate Mr. C's was either its employee -22- or its agent so as to create liability pursuant to R.C. 2744.02(B)(1). Both the trial court and the jury, which had the benefit of considering all the exhibits and testimony presented found otherwise. A consideration of the degree of control the Board did and potentially could exercise over both Mr. C's, from the specification of the type of vehicles it could use to transport students, to the performance of its duties, and its power to discharge unacceptable drivers, lends support for their conclusion. See, e.g. Bostic v. Connor (1988), 37 Ohio St.3d 144; cf., Sponagle v. US Air Group, Inc. (1992), 81 Ohio App.3d 789. "Operation" is defined in Webster's Third Collegiate Dictionary (1976) in pertinent part as: "an exertion of power or influence * * * the quality or state of being functional or operative * * * a method or manner of functioning * * * ." Thus, the jury could find not only wanton and willful misconduct on the Board's part, but also that Mr. C's was an employee or agent of the Board which was operating a motor vehicle on the highways, creating liability pursuant to R.C. 2744.02(B)(1). In view of its enactment of statutes such as R.C. 3327.09, R.C. 3937.18 and R.C. 4509.101, the Ohio legislature has demonstrated that liability for motor vehicle accidents is of utmost concern in this state. Moreover, the wording of R.C. 2744.02's subsections (A)(1) and (B)(1) clearly indicates a legislative intent to make political subdivisions liable for motor vehicle accidents. -23- In this case, the Board attempted to absolve itself from some of that responsibility by hiring subcontractors to provide supplemental motor vehicle transportation for its students. However, the evidence in this case indicated both that the Board, i.e., the political subdivision, was negligent in fulfilling its statutory resonsibilites and that its "instrumentality," i.e., Mr. C's, was acting within the scope of the authority granted to it by the Board when the accident occurred. Cf., Wilson v. Stark Cty. Dept. of Human Serv. (1994), 70 Ohio St.3d 450. Upon a review of the record, including the allegations of negligence appellees made in their amended complaint, the evidence presented, and mindful of the applicable legal standards involved, this court finds the trial court did not err in denying the Board's motions for summary judgment, directed verdict, or judgment notwithstanding the verdict. Continental Ins. Co. v. Whittington, supra; Herd v. City of Shaker Heights, supra; Gladon v. Greater Cleveland Regional Transit Authority (Mar. 10, 1994), Cuyahoga App. No. 64029, unreported; Martin v. Cleveland (1991), 66 Ohio App.3d 634. Proceeding to its argument that it was entitled to a new trial in this case, the Board first urges this court to determine the trial court improperly admitted testimony and exhibits concerning Mr. C's certification as an MBE and the status of Mr. C's insurance coverage prior to and subsequent to the accident. Although the Board relies primarily on Evid.R. 411, 403(A), and 407 in support of its argument, its reliance is misplaced. -24- The decision to admit or exclude relevant evidence is within the sound discretion of the court and cannot be reversed absent a showing of an abuse of discretion. Gladon v. Greater Cleveland Regional Transit Authority, supra. A review of the record reveals the admission of the challenged evidence did not violate the foregoing rules; rather, it was "for another purpose," viz., to prove the disputed issue of agency or "ownership, control or feasibility of precautionary measures." See, e.g., Carney v. Knollwood Cemetery Assn. (1986), 33 Ohio App.3d 31 at 38; Felden v. Ashland Chemical Co., Inc. (1993), 91 Ohio App.3d 48 at 58-59. Under these circumstances, the trial court did not abuse its discretion in overruling the Board's motion in limine. The Board next argues the trial court's instructions to the jury were inappropriate and misleading. In considering whether specific portions of the trial court's instructions complained of were improper, the instructions as a whole must be reviewed. However, even if reversible error is found in the charge, it must also be shown that the substantial rights of the party complaining of the charge have been directly affected and to his prejudice before a reversal can be justified. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, headnote 13. Upon a review of the instructions given by the trial court in this case, this court cannot justify a reversal of the verdict for appellees. The Board first takes issue with the instruction concerning "willful and wanton misconduct." However, although some appellate -25- courts in Ohio have required some form of the word "perverse" to be used in describing such misconduct in governmental immunity cases, this court has used the term only with regard to cases involving police officers responding to emergency calls. Herd v. City of Shaker Heights, supra; cf., Martin v. Cleveland, supra; Moore v. Columbus (1994), 98 Ohio App.3d 701; Poe v. Hamilton (1990), 56 Ohio App.3d 137. Moreover, the Ohio Supreme Court has not indicated such a requirement exists. Furthermore, the jury specifically found Mr. C's was an employee or agent of the Board, thereby determining liability was appropriate pursuant to R.C. 2744.02(B)(1); therefore, the Board cannot prove it was prejudiced by the trial court's instruction on "willful and wanton misconduct." The Board also disputes the instruction given on "independent contractor." However, the transcript fails to demonstrate either that the charge was incorrect or that the Board actually objected to the charge as required by Civ.R. 51(A). Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207; cf., R.H. Macy & Co. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108. Finally, although the Board argues the jury received no "immunity" instruction, a review of the charge as a whole reveals the trial court adequately stated the applicable legal standards involved. Therefore, with regard to the jury instructions given in this case, no ground for reversal exists. Wagenheim v. Alexander Grant & Co., supra. -26- Next, the Board contends it was entitled to a new trial or to further deliberation by the jury because the answers to the interrogatories were "inconsistent" with the general verdict. This court disagrees. First, there was no inconsistency in finding Goodrum not negligent but the Board liable for appellees' injuries: the jury specifically found both that Mr. C's was negligent in operating its vehicles on the road and that Mr. C's was the Board's "employee." Thus, R.C. 2744.02(B)(1) still applied. See, e.g., Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6; Siders v. Reynoldsburg School Dist. (1994), 99 Ohio App.3d 173. Second, there is no "inconsistency" between a finding for Goodrum and an award of damages to him, however inappropriate the award. Although the Board is correct in asserting the damage award to Goodrum was not based upon the evidence, Civ.R. 49(B) is not the appropriate basis upon which to challenge the award. Rather, the trial court should have granted the Board's motion for judgment notwithstanding the verdict as to Goodrum's award. See, e.g., Kenney v. Fialko (1991), 75 Ohio App.3d 47; Cataland v. Cahill (1984), 13 Ohio App.3d 113. A motion for new trial rests in the sound discretion of the trial court and that court's ruling will not be disturbed on appellate review unless there is an abuse of discretion; a trial court abuses its discretion in granting said motion when there is -27- substantial evidence to support said verdict. Verbon v. Pennese (1982), 7 Ohio App.3d 182. In this case, there was substantial evidence supporting the jury's verdict for appellees and for Goodrum; hence, the trial court did not abuse its discretion in denying the Board's motion for a new trial. Martin v. Cleveland, supra. Based upon the record, however, the Board is correct in asserting that an award of damages to Goodrum was unwarranted since throughout the proceedings below, Goodrum neither claimed nor proved he suffered any damages. See, e.g., Henry v. Akron (1985), 27 Ohio App.3d 369. For the foregoing reasons, the Board's first assignment of error is sustained only in part and the award of damages to Goodrum is reversed. Assignments of error III through VI are overruled. The Board's remaining assignment of error states: II. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY DENYING THE CLEVELAND BOARD OF EDUCATION'S MOTION TO STAY ENTRY OF JUDGMENT AND FOR DISCLOSURE AND DEDUCTION OF COLLATERAL BENEFITS FROM JURY AWARD PURSUANT TO 2744.05 OF THE OHIO REVISED CODE. The Board argues the trial court improperly ignored the mandate of R.C. 2744.05 regarding deduction of collateral benefits. This assignment of error has merit. The directives of R.C. 2744.05 are mandatory in nature, since it states in relevant part: 2744.05 Limitations on damages awarded. Notwithstanding any other provisions of the Revised Code or rules of a court to the contrary, in an action against a political subdivision to recover damages for injury, death, or loss to persons or property caused by -28- an act or omission in connection with a governmental or proprietary function: * * * (B) If a claimant receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against a political subdivision recovered by that claimant. No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against a political subdivision with respect to such benefits. * * * . (Emphasis added.) Moreover, in Galanos v. Cleveland (1994), 70 Ohio St.3d 220 at 222, the supreme court held that a plaintiff "has no right to receive that portion of [a] judgment associated with * * * collateral source payments." The holding in Galanos is directly applicable to this case, since the record reveals $1,805.95 of appellees' medical bills incurred as a result of the accident were paid by the Ohio Department of Human Services. The court in Galanos expressly stated that such payments are precisely "the type of collateral source benefits contemplated by R.C. 2744.05(B)." Id. See, also, Consorte v. City of Cleveland (June 20, 1991), Cuyahoga App. No. 58858, unreported; Gladon v. Greater Cleveland Regional Transit Authority, supra; cf., Martin v. Cleveland, supra. Although appellees attempt in their appellate brief to challenge the constitutionality of R.C. 2744.05(B), their effort is unavailing for two reasons: 1) they failed to raise such a challenge in the trial court; and 2) both this court and the Ohio -29- Supreme Court have previously rejected such a challenge. Bushman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260; Gladon v. Greater Cleveland Regional Transit Authority, supra; Remley v. Cincinnati Metro. Housing Auth. (1994), 99 Ohio App.3d 573. Therefore, the Board's second assignment of error is sustained. This court, however, does not find it necessary to remand this case. The record clearly demonstrates only $1,805.95 in collateral source benefits was received by appellee Edward Glass. Therefore, the award of damages against the Board as to him is reduced by that amount. In summary, the damage award to appellee Goodrum is stricken and the damage award in favor of appellee Glass against the Board is reduced by $1,805.95. In all other respects, the verdicts of the jury and the judgment and orders of the trial court are affirmed. Modified, and as modified, affirmed. -30- It is ordered that appellees Sharp recover of appellant their costs herein taxed. Remainder of costs assessed one-half to appellant and one-half divided equally between appellee Glass and appellee Goodrum. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, DAVID T., P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .