IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1999 Term
TANYA L. LACY AND MICHAEL LACY,
Plaintiffs Below, Appellants
CSX TRANSPORTATION, INC.,
Defendant Below, Appellee
Plaintiff Below, Appellant
CSX TRANSPORTATION, INC.,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable Herman J. Canady, Jr., Judge
Case Nos. 95-C-2633 and 95-C-2680
REVERSED AND REMANDED
Submitted: January 13, 1999
Filed: June 28, 1999
|John H. Skaggs, Esq.
Calwell & McCormick
Charleston, West Virginia
Attorney for Appellant Brooks
William M. Tiano, Esq.
Thomas J. Murray, Esq.
|Marc E. Williams, Esq.
Robert L. Massie, Esq.
Paul J. Loftus, Esq.
Huddleston, Bolen, Beatty,
Porter & Copen
Huntington, West Virginia
Attorneys for Appellee CSX
JUSTICE McGRAW delivered the Opinion of the Court.
JUSTICES WORKMAN and MAYNARD dissent and reserve the right to file dissenting opinions.
SYLLABUS BY THE COURT
latitude is allowed counsel in argument of cases, but counsel must keep within the
evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor
permit or encourage witnesses to make remarks which would have a tendency to inflame,
prejudice or mislead the jury.' Syl. pt. 2, State v. Kennedy, 162 W. Va.
244, 249 S.E.2d 188 (1978). Syl. pt. 8, Mackey v. Irisari, 191
W. Va. 355, 445 S.E.2d 742 (1994).
discretion of the trial court in ruling on the propriety of argument by counsel before the
jury will not be interfered with by the appellate court, unless it appears that the rights
of the complaining party have been prejudiced, or that manifest injustice resulted
therefrom. Syl. pt. 3, State v. Boggs, 103 W. Va. 641, 138 S.E. 321
3. To preserve
error with respect to closing arguments by an opponent, a party need not contemporaneously
object where the party previously objected to the trial court's in limine ruling
permitting such argument, and the argument pursued by the opponent reasonably falls within
the scope afforded by the court's ruling.
4. In a civil
trial it is generally an abuse of discretion for the trial court to instruct the jury or
permit argument by counsel regarding the operation of the doctrine of joint and several
liability, where the purpose thereof is to communicate to the jury the potential
post-judgment effect of their assignment of fault.
West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate
significant discretion to the trial court in making evidentiary and procedural rulings.
Thus, rulings on the admissibility of evidence and the appropriateness of a particular
sanction for discovery violations are committed to the discretion of the trial court.
Absent a few exceptions, this Court will review evidentiary and procedural rulings of the
circuit court under an abuse of discretion standard. Syl. pt. 1, McDougal v.
McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
interpretation of the West Virginia Rules of Evidence presents a question of law subject
to de novo review. Syl. pt. 1, Gentry v. Mangum, 195 W. Va. 512, 466
S.E.2d 171 (1995).
7. Before evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must demonstrate that such evidence is (1) a memorandum, report, record, or data compilation, in any form; (2) concerning acts, events, conditions, opinions or diagnoses; (3) made at or near the time of the matters set forth; (4) by, or from information transmitted by, a person with knowledge of those matters; (5) that the record was kept in the course of a regularly conducted activity; and (6) that it was made by the regularly conducted activity as a regular practice.
8. In order to satisfy the knowledge requirement of W. Va. R. Evid. 803(6), the party seeking to admit such evidence may establish either (1) that the preparer of the record had knowledge of the matters reported; or (2) that the information reported was transmitted by a person with knowledge, who was acting in the course of a regularly conducted activity; or (3) that it was a regular practice of the activity to rely upon communications from persons with knowledge.
9. The foundation required by W. Va. R. Evid. 803(6) may be established by circumstantial evidence, or by a combination of direct and circumstantial evidence.
10. Under W. Va. R. Evid. 803(6), a foundational witness need only be someone with knowledge of the procedure governing the creation and maintenance of the records sought to be admitted.
11. A report or
other record prepared by an organization in routine compliance with state and/or federal
law is prima facie sufficient under W. Va. R. Evid. 803(6), where the duties
imposed by such law give rise to an inference that it was a regular practice to base the
report or record upon first-hand knowledge.
12. A record of a regularly conducted activity that otherwise meets the foundational requirements of W. Va. R. Evid. 803(6) is presumptively trustworthy, and the burden to prove that the proffered evidence was generated under untrustworthy circumstances rests upon the party opposing its admission.
Plaintiff-appellants Tanya Lacy and
Richard Brooks were injured when the car in which they were passengers collided with a
train operated by appellee CSX Transportation, Inc. (CSX), at a grade crossing
in St. Albans, West Virginia in January 1995. Plaintiffs brought actions against both CSX
and the driver of the car, Cacoe Sullivan, in the Circuit Court of Kanawha County. At the
close of a two-week trial, which was bifurcated on the issues of liability and damages,
the jury found both defendants negligent, but concluded in its special verdict that CSX's
negligence was not a proximate cause of the accident. Plaintiffs challenge the subsequent
judgment entered in favor of CSX, arguing that (1) the lower court erred in refusing to
instruct the jury on strict liability; (2) counsel for CSX was permitted to engage in
improper argument with respect to the effect of West Virginia law concerning joint and
several liability; and (3) the trial court erred in excluding a statement contained in a
diagram prepared by a CSX employee following the collision indicating the location of one
of the locomotives involved in the accident. We reverse, finding merit in the latter two
Shortly after 11:00 p.m. on January 11, 1995, a car driven by Cacoe Sullivan left the Kroger parking lot in St. Albans, heading west on Third Avenue. Sullivan's fiancee, Richard Brooks, was riding in the front passenger's seat, while her mother, Tanya Lacy, was in the back seat with Sullivan's and Brooks's infant son. CSX's railroad tracks, comprised of two main-line and two side tracks, run parallel to Third Avenue immediately to the south.
While traveling on Third Avenue, Sullivan's car encountered a stop sign from where the occupants could see that the flashing lights and gates of the still-distant Fifth Street crossing were activated. Sullivan's vehicle proceeded to the intersection of Third Avenue and Fifth Street (adjacent to the crossing), slowed but did not stop at a stop sign, made a left turn onto Fifth Street, went around one of the lowered gate arms onto the tracks, and was struck broadside by a westbound train traveling at 50 miles per hour.See footnote 1 1 Brooks was apparently rendered paraplegic by the accident.
It was undisputed that from Sullivan's view traveling on Third Avenue, a second, slower-moving shifter locomotive could be seen approaching the crossing from the west. There was, however, conflicting evidence regarding just how distant this locomotive was at the time of the accident. The testimony of the eastbound locomotive's engineer, Calvin Bowen, placed it as close as 300 to 400 feet west of the Fifth Street crossing, traveling at fifteen to twenty miles per hour, when the car was struck by the westbound train. Plaintiffs proffered evidence in the form of a diagram prepared by a CSX accident investigator, G.A. Green (the accident diagram), indicating that the eastbound locomotive was further away, as far as two to three blocks to the west of the crossing; however, this evidence was excluded by the trial court.
The central issue at trial with respect
to CSX was whether it was negligent in permitting both fast- and slow-moving locomotives
to approach the Fifth Street crossing simultaneously on its main-line tracks. The crossing
had an active warning system consisting of flashing-light signals and automatic gates.
Plaintiffs asserted at trial that the ability of the crossing warning system to provide a
positive warning of an approaching train was effectively neutralized by CSX's
practice of allowing slow-moving switching locomotives to use the main-line tracks. It was
alleged that this practice frequently resulted in the extended activation of the
crossing's flashing lights and gate arms when no trains were in hazardous proximity. As a
result, according to plaintiffs, CSX was not using the warning system in accordance with
its design, and thus was not in compliance with 49 C.F.R. § 234.225 (1998).See footnote 2 2
Several witnesses, including Sullivan,
testified to their past experience of encountering extended activations because of
slow-moving trains in the vicinity of the Fifth Street crossing. The former mayor of St.
Albans, Edward Bassitt, indicated that he had previously discussed with CSX the problem of
extended activations at the Fifth Street crossing as early as 1989. CSX employees also
testified to the fact that drivers in the St. Albans area frequently ignored the crossing
Plaintiffs' expert in the area of
grade-crossing safety, William Berg, Ph.D., testified that the fixed-distance circuitry
installed on the main-line tracks at the Fifth Street crossing is designed to activate a
warning whenever an approaching train is within 2,000 to 2,200 feet of the crossing,
regardless of the train's speed. Thus, while a train traveling at the maximum speed of
sixty miles per hour would give a twenty-five second warning, the approach of a
slower-moving locomotive could result in much longer warning times. Dr. Berg estimated,
based in part upon information contained in the accident diagram, that the eastbound
locomotive would have activated the warning system over forty seconds prior to the
Dr. Berg further stated that the optimal warning time was twenty-five to thirty seconds, and that warning times in excess of forty seconds result in a dramatic increase in the number of people driving around deployed gates. He stressed the importance of giving motorists credible warnings, and the need to provide uniform warning times at crossings where there are significant disparities in train speeds.See footnote 3 3 As one example of alternatives to CSX's practices, Dr. Berg pointed to so-called constant warning-time technology (CWT), which gives a consistent warning regardless of the speed of the approaching train. Other alternatives cited by Dr. Berg included relegating slow-moving trains to side tracks, where the fixed distance circuitry is specifically designed to accommodate the lower speeds,See footnote 4 4 or keeping slower locomotives outside of the circuitry on the main-line tracks when faster trains are approaching.
In its case, CSX presented the
testimony of Gary Wolf, an expert in railway operations, and Joseph Blaschke, Ph.D., an
expert in traffic engineering and highway design. Both of these witnesses rejected the
contention that twenty-five to thirty seconds was an optimal warning time, and cited the
absence of any federal regulation mandating maximum warning times.See footnote 5 5 Each stated that CWT was intended
primarily to improve vehicular flow at crossings, not to increase traffic safety. Dr.
Blaschke also testified that CWT was indicated in situations involving both heavy
vehicular traffic and heavy train activity, and that the Fifth Street crossing did not
generate the level of vehicular traffic necessary to justify the installation of CWT. He
gave the opinion that the characteristics of the crossing, including the existing presence
of an active warning system with gates, and the excellent sight distance at the crossing,
did not make Fifth Street a priority candidate for CWT.
After hearing the evidence, the jury
deliberated until sending a note indicating that they were having difficulty reaching a
unanimous verdict. The trial court then gave an Allen-type instruction.See footnote 6 6 The jury subsequently
rendered a special verdict regarding liability, finding CSX and Sullivan, as well as
plaintiffs Tanya Lacy and Richard Brooks, negligent, but determining that Sullivan's
negligence was the sole proximate cause of the accident. The jury ascribed one percent
negligence each to CSX, Lacy and Brooks, and ninety-seven percent to defendant Sullivan.See footnote 7 7 The circuit court
entered judgment in favor of CSX based upon the jury's special verdict. Plaintiffs'
subsequent Motion for a New Trial and Judgment Notwithstanding the Verdict was denied by
the trial court.
Joint and Several Liability
Plaintiffs first contend that the trial court erred in permitting counsel for CSX to argue the potential post-judgment effects of joint and several liability to the jury.See footnote 8 8 We reverse on this issue, finding that the trial court abused its discretion by permitting counsel for CSX to speculate and otherwise mislead the jury regarding whether the railroad would ultimately be charged with paying the entire judgment if both CSX and defendant Sullivan were found at fault.
Prior to trial, plaintiffs filed a
motion in limine to exclude any questions, suggestions, comments, allegations,
testimony or argument by the defendant, [CSX], as to the effect that West Virginia's joint
and several liability law may have upon [CSX]. The circuit court ruled on the motion
after CSX proposed an instruction on the issue.See
footnote 9 9 CSX argued to the trial court that the jury needs to
understand the relationship between the parties and the effect of a finding of either one
percent against CSX, because of the way the plaintiffs have plead[ed] this case and argued
this case, because of the relationship between the parties and the cooperation that we've
seen here, the jury needs to fully understand that.
This is no different tha[n] plaintiffs who every time we seem to try a case come in and tell the jury, well, if you find more than fifty percent at fault then this plaintiff is not going to get any money. It's the same thing.
The trial court refused CSX's proposed instruction, but nevertheless ruled that CSX
could argue joint and several liability and point out the intrigue. Counsel
for plaintiffs brought the issue to the court's attention a second time immediately before
closing arguments, citing Valentine v. Wheeling Elec. Co., 180 W. Va. 382, 376
S.E.2d 588 (1988), and asserting that such argument would be tantamount to
invit[ing] the jury to nullify the law of joint and several liability in West
Virginia. The trial court again ruled to permit CSX to argue joint and several
Counsel for CSX stated the following
during closing argument:
Let's just stop for a minute and let's talk about what this case is really about, what has been going on here for two weeks in this trial. Tanya Lacy, Richard Brooks, and Cacoe Sullivan are family. This is not a case where we have two plaintiffs suing two defendants. This is a case in which the family is trying to get money from the railroad. Tanya Lacy doesn't want anything from her daughter.
They spent two weeks trying to convince you that CSX was at fault. They didn't spend two weeks trying to convince you that Cacoe Sullivan was at fault. Why not? I'll tell why not. If you go back into that jury room and return this verdict of shared responsibility that [plaintiffs' counsel] wants, if you go back into that jury room and return a verdict that say[s] . . . 99 percent Cacoe Sullivan's fault, 1 percent CSX's fault, guess what? Tanya Lacy and Richard Brooks can collect the entire judgment from CSX. They can also collect it from Cacoe Sullivan, if they wanted, but what are the odds a mother is going to actually ask her daughter.
So when you go back into that jury room and fill out this verdict form, any finding on the part of CSX, 1 percent, 10 percent, 50 percent, 100 percent, it's the same thing. One percent is, in essence, telling CSX, you are completely and totally responsible for this accident.
So you have two choices when you go out on this verdict form. You can find that the responsibility for this accident was solely Cacoe Sullivan's fault, or solely CSX's fault, because any split and they're going to come looking for us.
Counsel for Cacoe Sullivan objected to this argument at the time it was delivered, but was overruled by the trial court.
As a threshold matter, CSX obliquely
suggests that appellate review of this issue is barred by plaintiffs' failure to object
during closing argument. This Court previously held in Syllabus point 1 of Wimer
v. Hinkle, 180 W. Va. 660, 379 S.E.2d 383 (1989), that [a]n objection to an
adverse ruling on a motion in limine to bar evidence at trial will preserve the
point, even though no objection was made at the time the evidence was offered, unless
there has been a significant change in the basis for admitting the evidence. While
the present case involves the arguments of counsel rather than the introduction of
evidence, the underlying principle is equally applicable such that to preserve error with
respect to closing arguments by an opponent, a party need not contemporaneously object
where the party previously objected to the trial court's in limine ruling
permitting such argument, and the argument subsequently pursued by the opponent reasonably
falls within the scope afforded by the court's ruling. This conclusion is bolstered by
West Virginia Trial Court Rule 23.04, which disfavors objections by counsel during closing
arguments: Counsel shall not be interrupted in argument by opposing counsel, except
as may be necessary to bring to the court's attention objection to any statement to the
jury made by opposing counsel and to obtain a ruling on such objection.
Plaintiffs were not, in this case,
required to lodge an objection at the time counsel for CSX made the challenged remarks,
since the trial court had already ruled in limine on plaintiffs' objection to this
line of argument. Consequently, the present issue has been preserved for review.
Reaching the merit of plaintiffs' assertion of error, we note that this Court reviews rulings by a trial court concerning the appropriateness of argument by counsel before the jury for an abuse of discretion. [A] trial court has broad discretion in controlling argument before the jury, Dawson v. Casey, 178 W. Va. 717, 721, 364 S.E.2d 43, 47 (1987) (per curiam) (citation omitted), and such discretion will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom, Syl. pt. 3, State v. Boggs, 103 W. Va. 641, 138 S.E. 321 (1927). See also Syl. pt. 2, State v. Bennett, 183 W. Va.570, 396 S.E.2d 751 (1990). As we noted in Syllabus point 8 of Mackey v. Irisari, 191 W. Va. 355, 445 S.E.2d 742 (1994), '[g]reat latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.' (Quoting Syl. pt. 2, State v. Kennedy, 162 W. Va. 244, 249 S.E.2d 188 (1978)).
While our ultimate focus is therefore
on whether the trial court abused its discretion by permitting argument regarding the
potential post-judgment effect of joint and several liability, such inquiry requires us to
first determine whether it is generally appropriate to inform the jury about this
This Court previously touched upon the
issue of whether it is permissible to instruct a jury on joint and several liability in Valentine
v. Wheeling Elec. Co., 180 W. Va. 382, 376 S.E.2d 588 (1988). In Valentine,
the trial court gave an instruction identical to that proposed by CSX in the present case.
See note 9, supra. On appeal, the defendant attempted to justify the trial court's
action by citing to Syllabus point 2 of Adkins v. Whitten, 171 W. Va.
106, 297 S.E.2d 881 (1982), which requires a court to instruct the jury on the doctrine of
modified comparative negligence when requested. The Court rejected the applicability of Adkins,
observing that the proposed instruction . . . did not deal with measuring the
negligence of the appellant against that of the alleged tortfeasors. Rather, it
dealt with apportionment of damages among alleged tortfeasors. Consequently, the
duty of a trial court imposed by Adkins to instruct the jury as to the effect of
comparative negligence did not exist in this case.
Valentine, 180 W. Va. at 386, 376 S.E.2d at 592 (emphasis in original).
After concluding that the proffered instruction was not appropriate in this
case, id., the Court went on to find that any error in instructing the jury
on joint and several liability was harmless because the jury found neither defendant
negligent. While Valentine certainly suggests that it is error to inform the jury
of the doctrine of joint and several liability, the Court in that case did not attempt to
forge a broad rule concerning this issue.
There are divergent views concerning the appropriateness of informing the jury of the effects of joint and several liability. Some jurisdictions, employing the same rationale used to permit instruction and argument on the workings of modified comparative negligence, sanction informing juries about joint and several liability because, in their estimation, juries are likely to respond to such information by being more conscientious about assigning responsibility to defendants. See DeCelles v. State ex rel. Dep't of Highways, 243 Mont. 422, 425, 795 P.2d 419, 421 (1990); Luna v. Shockey Sheet Metal & Welding Co., 113 Idaho 193, 195-97, 743 P.2d 61, 64-65 (1987); Kaeo v. Davis, 68 Haw.
447, 460-61, 719 P.2d 387, 396 (1986). For example, in Luna, the Idaho Supreme Court stated that
the doctrine of joint and several liability, under which a defendant assessed a mere 1% negligence may be required to pay 100% of plaintiff's damages if, for some reason, the joint tortfeasor is unreachable through the judicial process, poses a trap for the uninformed jury. An informed jury will be much more likely to carefully examine the facts prior to reaching a verdict holding a defendant even 1% at fault, no matter how cosmetically appealing a partial allocation of fault might be.
Luna, 113 Idaho at 196, 743 P.2d at 64.
Other courts stress that consideration
of joint and several liability is not relevant to determining any issue of fact. The Court
of Appeals of South Carolina recently took this approach, where it held that it was not
error for a trial court to refuse an instruction on joint and several liability
[b]ecause the doctrine has no bearing on the jury's ultimate fact-finding role in
determining the relative negligence of joint tortfeasors. Fernanders v. Marks
Constr. of S.C., Inc., 330 S.C. 470, 475, 499 S.E.2d 509, 510-11 (S.C. Ct. App. 1998);
see also Dranzo v. Winterhalter, 395 Pa. Super. 578, 592, 577 A.2d 1349,
1356 (1990) (the collectibility or uncollectibility of a judgment, the operation of
joint and several liability, is simply not relevant to the jury's consideration of whether
the defendants were causally liable and in what percent); Gehres v. City of
Phoenix, 156 Ariz. 484, 486-87, 753 P.2d 174, 176- 77 (Ariz. Ct. App. 1987).
Courts on both sides of the debate take credible positions; however, we perceive that resolution of this issue turns on practical considerations that have only been lightly touched upon.
In Adkins, the Court determined
that a jury's apportionment of fault would be more reliable if it were instructed on the
operation of the doctrine of modified comparative fault:
From a practical standpoint it is apparent that a jury, given the type of verdict form mandated by Bradley [v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979),] which requires a gross damage verdict and a finding of the plaintiff's percentage of negligence, may well surmise that the plaintiff's negligence may reduce his damage award. It seems to us that a jury's deliberations should not be attended by such surmises but rather they should be openly informed as to the legal principles involved in our comparative negligence doctrine so that they may make a rational decision.
171 W. Va. at 109, 297 S.E.2d at 884. The instruction sanctioned in Adkins enables the jury to understand the mechanics of the comparative contributory negligence rule, King v. Kayak Mfg. Corp., 182 W. Va. 276, 279, 387 S.E.2d 511, 514 (1989), and thus eliminates the possibility that it will premise its factual findings upon an erroneous perception of the legal consequences of finding a plaintiff partially at fault. In determining that the utility of instructing the jury on comparative negligence outweighs other countervailing considerations, we rejected the notion that such information would inevitably result in bias on the part of the jury:
To argue that a jury once informed of the comparative negligence law might manipulate it in order to favor the plaintiff assumes a biased jury. Such an argument is premised on a theory that individual jurors will disregard their oaths to follow the court's instructions as to the law. The same argument could as easily be made in regard to any instruction on any aspect of the law. We do not believe that jurors will disregard their obligations to apply the law objectively to the facts of the case.
Adkins, 171 W. Va. at 109, 297 S.E.2d at 884
The Court in Adkins also stressed that under our jury trial system, it is incumbent on the court by way of instruction or charge to inform the jury as to the law applicable to the facts of the case. This should be the case as to our law of comparative negligence. Id. This requirement is echoed in W. Va. R. Civ. P. 49(a), which in the context of special verdicts requires a court to give the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. Professors Wright and Miller assert that the preferable approach under Rule 49(a) is to inform juries of the legal effect of their factual findings, noting (much as we did in Adkins) that to do otherwise is likely to be unavailing, and there is always the danger that the jury will guess wrong about the law, and may shape its answers to the special verdicts, contrary to its actual beliefs, in a mistaken attempt to ensure the results it deems desirable. 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2509, at 197-98 (2d ed. 1995).
This Court obviously does not generally sanction blindfolding the jury regarding the legal effect of its factual findings, but nor do we endorse informing the jury of every conceivable consequence that may attach to such findings.
In addition to the superficial reasons
stated in Valentine, we perceive an even more significant justification for
rejecting application of Adkins in the context of joint and several liability: Any
conclusion about how joint and several liability will ultimately affect a particular
defendant is largely speculative. As the Superior Court of Pennsylvania pointed out in
holding that is was proper for a trial court to refuse a jury instruction on joint and
several liability, neither the court nor the jury can say with assurance how much of
the verdict rendered, if any, any one tortfeasor will in fact pay. Dranzo,
395 Pa. Super. at 592, 577 A.2d at 1356; see also DeCelles, 243 Mont.
at 429, 795 P.2d at 423 (Sheehy, J. dissenting) (instruction [on joint and
several liability] allowed the jury to speculate as to matters outside the evidence
in this case) (emphasis in original).
When a jury that has been instructed
under Adkins considers the doctrine of comparative negligence in the context of
apportioning fault, it is not required to speculate about the consequences of its verdict.
Rather, the jury can easily comprehend what effect its findings will have on the
litigants, without any need to consider evidence beyond that relevant to determination of
the cause of action. The same cannot be said of the jury's consideration of joint and
several liability, where in most cases the ultimate financial impact of a jury verdict on
individual defendants cannot be fully appreciated by anyone until long after judgment is
This Court has consistently rejected permitting counsel to base arguments before the jury upon mere speculation. In Syllabus point 2 of Jenrett v. Smith, 173 W .Va. 325, 315 S.E.2d 583 (1983), we noted that '[t]hough wide latitude is accorded counsel in arguments before a jury, such arguments may not be founded on facts not before the jury, or inferences which must arise from facts not before the jury.' (Quoting Syl. pt. 3, Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961)). Consequently, arguments that amount to nothing more than speculation and conjecture . . . [are] properly excluded . . . . Gardner v. CSX Transp., Inc., 201 W. Va. 490, 502, 498 S.E.2d 473, 485 (1997). Similarly, a court's instructions should not prompt the jury to speculate as to facts that are not in evidence. Cf. Syl. pt. 1, Oates v. Continental Ins. Co., 137 W. Va. 501, 72 S.E.2d 886 (1952) (A jury will not be permitted to base its findings of fact upon conjecture or speculation.).
The line of argument pursued by CSX in the present case demonstrates how any consideration of the potential post-judgment effects of joint and several liability is likely to degenerate into conjecture about whether a particular defendant will ultimately bear a greater portion of the plaintiff's loss than is attributable to its fault. Counsel for CSX speculated that plaintiffs would be unwilling to collect any judgment against Cacoe Sullivan, and would instead resort to forcing CSX to pay the entire judgment. While such an outcome is perhaps a plausible inference given the unique familial relationship of these parties, there was nothing in evidence that otherwise directly supported such a contention.
CSX's argument was, in any event,
misleading to the extent that it implied that plaintiffs could ultimately control who
would pay. This obviously ignores the fact that CSX would, if it were called upon by
plaintiffs to satisfy the entire judgment, have a right of comparative contribution
against Sullivan. W. Va. Code § 55-7-13 (1923); Syl. pt. 3, Sitzes v.
Anchor Motor Freight, Inc., 169 W. Va. 698, 289 S.E.2d 679 (1982) (As
between joint tortfeasors, a right of comparative contribution exists inter se
based upon their relative degrees of primary fault or negligence.); Syl. pt. 3,
Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977) (In West
Virginia one joint tort-feasor is entitled to contribution from another joint tort-feasor,
except where the act is malum in se.).
To inform the jury about the potential
effects of joint and several liability without otherwise misleading it, trial courts could
conceivably be required to instruct and/or permit evidence on such complex and often
proscribed subjects as contribution, indemnity, bankruptcy, the effect of statutory and
common-law immunities, the extent of defendants' financial resources, and the existence of
insurance coverage_just to name a few. Our discussion in Riggle v. Allied Chem. Corp.,
180 W. Va. 561, 378 S.E.2d 282 (1989), illustrates the potentially unwieldy
consequences that might flow from reading Adkins to require instruction on the
post-judgment effects of a jury's findings. In that case, the defendant-appellant,
Griffith Brothers Contractors, claimed error with respect to the trial court's refusal to
instruct the jury on the effect of an agreement requiring it to indemnify its
co-defendant, Allied Chemical, except where the latter was entirely at fault. Allied
Chemical had entered into a Mary Carter settlement agreement prior to trial,
which provided, among other things, that it would pay plaintiffs everything it recovered
from its crossclaim under the indemnity agreement. (Allied Chemical had voluntarily
limited its indemnity crossclaim to $500,000_the extent of Griffith Brothers' insurance
coverage.) The Court summarized Griffith Brothers' argument as follows:
Appellant maintains that the court should have revealed the indemnity agreement to the jury. It argues that the jury should have known that if it assessed even one percent of the fault to Griffith Brothers, then the latter would have to pay the entire judgment. Appellant argues that because a court, on request, must instruct the jury on the effect of finding a plaintiff fifty percent negligent, the court should have instructed the jury on the effect of the indemnity agreement here.
Riggle, 180 W. Va. at 568, 378 S.E.2d at 289. The Court prefaced its
discussion by noting that we did not rule in Adkins that the jury should be
instructed on how the court computes the amount of the plaintiffs' recovery from the
relative percentages of negligence and the amount of total damages. Id. In
concluding that the trial court did not abuse its discretion in refusing to instruct on
the indemnity agreement, the Court in Riggle stated that [t]he problem with
instructing the jury on the indemnity agreement . . . is that such an
instruction would have been misleading without also instructing the jury on the settlement
agreement and the insurance coverage of appellant. Comment to a jury concerning a party's
insurance coverage usually constitutes reversible error. Id. (citation
omitted). While the facts in Riggle may be unique, any attempt to analogously
inform the jury about the legal effect of joint and several liability is likely to
encounter similar obstacles.
We are not inclined to sanction forays
into matters that invite speculation and conjecture on the part of the jury, and which do
not suggest an easy stopping point with respect to the disclosures necessary to avoid
misleading the trier of fact. Nor in the case of joint and several liability do we
discern, as we did in Adkins, that juries are likely to harbor or otherwise act
upon misconceptions regarding this doctrine. Accordingly, we hold that in a civil trial it
is generally an abuse of discretion for the trial court to instruct the jury or permit
argument by counsel regarding the operation of the doctrine of joint and several
liability, where the purpose thereof is to communicate to the jury the potential
post-judgment effect of their assignment of fault.
The circuit court in this case abused
its discretion not only by permitting CSX to inform the jury about the possible legal
effect of joint and several liability, but also by allowing it to go so far as to
effectively exhort the jury to absolve it of all liability on such basis. Counsel stated
that [o]ne percent is, in essence, telling CSX, you are completely and totally
responsible for this accident, a theme that was stressed a second time when the jury
was told that it had a choice between two ultimate outcomes: You can find that the
responsibility for this accident was solely Cacoe Sullivan's fault, or solely CSX's fault,
because any split and they're going to come looking for us. These statements gave
the misleading impression that if CSX was found in any way at fault, it would invariably
be left to pay the entire judgment. If, as we have repeatedly declared, [t]his
jurisdiction is committed to the concept of joint and several liability among
tortfeasors, Syl. pt. 2, in part, Sitzes, supra, a defendant cannot be
permitted to argue against a finding of fault based upon misleading speculation about the
possible ramifications of the doctrine's application.
CSX argues that even if the trial court
did abuse its discretion by permitting it to argue the effects of joint and several
liability, such error was harmless because, notwithstanding its request for an opposite
result, the jury found the railroad one percent negligent. Therefore, according to CSX,
its closing argument had no prejudicial effect on the jury. We are not persuaded.
Under W. Va. R. Civ. P. 61,See footnote 10 10 [a] party is
entitled to a new trial only if there is a reasonable probability that the jury's verdict
was affected or influenced by trial error. Tennant v. Marion Health Care Found.,
Inc., 194 W. Va. 97, 111, 459 S.E.2d 374, 388 (1995). In making this
determination, the reviewing court must ascertain whether it has 'grave doubt about
the likely effect of an error on the jury's verdict' . . . ; if a court does
have grave doubt, then the error is harmful. Skaggs v. Elk Run Coal Co., Inc.,
198 W. Va. 51, 71, 479 S.E.2d 561, 581 (1996) (internal citation omitted).
The use of special verdicts or written
interrogatories pursuant to W. Va. R. Civ. P. 49 generally aids appellate
review, see 9 James W. Moore, Moore's Federal Practice
§ 4.11[a], at 49-11 (3d ed. 1998); however, such devices are not particularly
helpful in assessing the repercussions of broadly prejudicial remarks made before a jury.
In this case, moreover, the interrogatory answer assigning one percent negligence to CSX
was meaningless, since the trial court ultimately ruled that the railroad was not at fault
based upon the jury's finding regarding the absence of proximate cause.See footnote 11 11 Regardless of how it
reached its conclusion, the jury still found that CSX was not responsible for the
accident. Because CSX's argument concerning joint and several liability advocated such an
ultimate outcome, we are left with grave doubts about the effect of such argument on the
jury's findings in this case. We are therefore precluded from finding that the trial
court's error was harmless.
Admissibility of Accident Diagram
Plaintiffs also contend that the trial
court erred in excluding a portion of a diagram prepared by a CSX employee in the course
of investigating the accident, which includes a statement indicating the location of the
slower-moving eastbound locomotive at time of the collision. They assert that such
evidence was a record of a regularly conducted activity, and was thus admissible as an
exception to hearsay under W. Va. R. Evid. 803(6). In support of the trial
court's exclusion of such evidence on hearsay grounds, CSX argues that its
investigator was not a witness to the accident, did not testify at trial, and based
his conclusion on the position of the [eastbound] locomotive on what others told him in
his investigation. We conclude that the court below erred in interpreting Rule
803(6) to require plaintiffs to establish that the statement was within the personal
knowledge of the railroad investigator who made the accident diagram.
The diagram, which was prepared in
connection with an accident report mandated by state and federal law,See footnote 12 12 provides a representation of the Fifth
Street crossing indicating the relative movements of the car and train involved in the
collision. The diagram also contains the following handwritten notation attached to a
westward-pointing arrow: ST. ALBANS SHIFTER 2 TO 3 BLOCKS WEST OF X-ING #2 MAIN
TRACK. Plaintiffs' expert, Dr. Berg, in part relied upon this statement in forming
his opinion regarding the cause of the accident. Also, plaintiffs apparently proffered
this statement to deflect any contention that the driver, Cacoe Sullivan, was preoccupied
with the eastbound locomotive due to its relative proximity to the crossing. CSX focused
attention on the testimony of the engineer of the eastbound shifter, Calvin Bowen,
indicating that it was only 300 to 400 feet west of the Fifth Street crossing when the car
was struck by the westbound train. The railroad put considerable emphasis, both in its
cross-examination of witnesses and during opening and closing statements, upon the shorter
distance in establishing that the locomotive was in hazardous proximity to the crossing,
and that Sullivan was attempting to beat the eastbound train.
Plaintiffs, at the conclusion of their case-in-chief, moved to admit the accident diagram in its entirety. CSX objected to the inclusion of the statement regarding the location of the eastbound shifter locomotive.See footnote 13 13 The trial court subsequently ruled to admit the diagram as a record of a regularly conducted activity under W. Va. R. Evid. 803(6), but excluded the statement regarding the location of the eastbound locomotive. The court concluded that this statement was third-hand hearsay based upon the fact that the preparer of the diagram, G.A. Green, did not directly observe the accident in question, but instead apparently relied upon statements made by other eyewitnesses. It analogized to accident reports prepared by the police, stating that such evidence is often redacted to exclude hearsay statements. After the court made its ruling, plaintiffs elected not to put the remainder of the accident diagram into evidence.See footnote 14 14
With few exceptions, this Court reviews
evidentiary rulings made by a trial court for an abuse of discretion:
The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.
Syl. pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). We have previously held that [t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion. Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W. Va. 435; see also Syl. pt. 4, Riggle v. Allied Chem. Corp., 180 W. Va. 561, 378 S.E.2d 282 (1989). However, [a]n interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review. Syl. pt. 1, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995). Thus, a trial court's ruling on the admissibility of testimony is reviewed for an abuse of discretion, 'but to the extent the [circuit] court's ruling turns on an interpretation of a [West Virginia] Rule of Evidence our review is plenary.' State v. Sutphin, 195 W. Va. 551, 560, 466 S.E.2d 402, 411 (1995) (citations omitted); see also State v. Quinn, 200 W. Va. 432, 435, 490 S.E.2d 34, 37 (1997). Because the circuit court's ruling was grounded upon a legal conclusion regarding the foundational requirements of Rule 803(6), we undertake de novo review to determine whether the court's ruling was based upon a permissible interpretation of this rule.
Before evidence may be admitted under
W. Va. R. Evid. 803(6),See footnote 15 15
the proponent must demonstrate that such evidence is (1) a memorandum, report, record,
or data compilation, in any form; (2) concerning acts, events, conditions, opinions or
diagnoses; (3) made at or near the time of the matters set forth; (4) by, or from
information transmitted by, a person with knowledge of those matters; (5) that the record
was kept in the course of a regularly conducted activity; and (6) that it was made by the
regularly conducted activity as a regular practice. See generally 2 Franklin
D. Cleckley, Handbook on Evidence for West Virginia Lawyers §8-3(B)(6), at 223 (3d
Our focus here is on whether the trial court erred by excluding the statement in question on the basis of appellant's asserted failure to satisfy the fourth foundational requirement of Rule 803(6), that the information set forth in the record be derived from a source with knowledge.
The requirement that statements
contained in a record must be derived from sources with knowledge is a reflection of
W. Va. R. Evid. 602.See footnote 16 16
The Advisory Committee Notes to Fed. R. Evid. 803 make clear that this rule
. . . [does not] dispense with the requirement of first-hand knowledge.
Consequently, to be admissible under Rule 803(6), the matters set forth in a record must
either be based upon the observations of the recorder, or the supplier of the information,
together with those involved in transmitting it to the final recorder, must have been
acting routinely and under a duty of accuracy.See
footnote 17 17
Because of the complexities inherent in modern record-keeping processes, however, the knowledge element of Rule 803(6) is liberally construed. This Court has previously noted with respect to other hearsay exceptions contained in Rule 803 that [t]he personal knowledge requirement, while not de minimis, is not meant to be a very difficult standard and may be satisfied if it is more likely than not that the evidence proves the percipiency of the declarant. State v. Phillips, 194 W. Va. 569, 578, 461 S.E.2d 75, 84 (1995) (citing, inter alia, W. Va. R. Evid. 104(b)). Whether a statement contained in a record is based upon a source with knowledge may appear from . . . [the declarant's statement] or be inferable from circumstances. Advisory Committee Notes to Fed. R. Evid. 803.
McCormick discusses the inferential
means by which the knowledge requirement of Rule 803(6) may be satisfied:
Direct proof that the maker of the statement had actual knowledge may be difficult, and it may even be impossible to prove specifically the identity of the informant with actual knowledge. Evidence that it was someone's business duty in the organization's routine to observe the matter will be prima facie sufficient to establish actual knowledge. This does not dispense with the need for personal knowledge, but permits it to be proved by evidence of practice and a reasonable assumption that general practice was followed with regard to a particular matter, or by other appropriate circumstances.
2 Kenneth S. Braun, et al., McCormick on Evidence § 290, at 275
(John W. Strong ed., 4th ed. 1992) (footnotes omitted); see also 5 Jack B.
Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.11,
at 803-71 (Joseph M. McLaughlin ed., 2d ed. 1999) (The name of the person whose
firsthand knowledge was the basis of the entry need not be known so long as the regular
practice was to get the information from such a person.) (footnote omitted). At the
time Rule 803(6) was incorporated into the Federal Rules of Evidence, the Senate Judiciary
Committee stated its understanding that [a] sufficient foundation . . .
will be laid if the party seeking to introduce the evidence is able to show that it was
the regular practice of the activity to based such memorandums, reports, records, or data
compilations upon a transmission from a person with knowledge . . . .
S. Rep. No. 1277, at 17 (1974), reprinted in 1974 U.S.C.C.A.N. 7051,
As numerous federal courts applying
Rule 803(6) have concluded, there is no requirement that the person whose first-hand
knowledge was the basis of the [record] entry be identified, so long as it was the
. . . entity's regular practice to get information from such a person. Saks
Int'l, Inc. v. M/V Export Champion, 817 F.2d 1011, 1013 (2d Cir. 1987); see also
Munoz v. Strahm Farms, Inc., 69 F.3d 501, 503-4 (Fed. Cir. 1995); Baxter
Healthcare Corp. v. Healthdyne, Inc., 944 F.2d 1573, 1577 (11th Cir. 1991), vacated and
dismissed per stipulation, 956 F.2d 226 (1992); White Indus. v. Cessna Aircraft
Co., 611 F. Supp. 1049, 1059-60 (D. Mo. 1985); United States v. Lieberman, 637 F.2d
95, 100 (2d Cir. 1980) (direct proof of actual knowledge of the person making the
record or providing the information is not required, and the requisite knowledge may be
inferred from the fact that it was someone's business to obtain such information);
United States v. Ahrens, 530 F.2d 781, 784 n.6 (8th Cir. 1976) (Rule 803(6) does not
require personal knowledge of the maker of the record as a condition precedent to its
admission into evidence); Stone v. Morris, 546 F.2d 730, 738-39 (7th Cir. 1976).
Thus, in order to satisfy the knowledge
requirement of Rule 803(6), the party seeking to admit such evidence may establish
either (1) that the preparer of the record had knowledge of the matters reported; or (2)
that the information reported was transmitted by a person with knowledge who was
acting in the course of a regularly conducted activity; or (3) that it was a regular
practice of the activity to rely upon communications from persons with knowledge. See
In Re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 288 (3d Cir. 1983)
(citing Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190,
1237 (E.D. Pa. 1980)), rev'd on other grounds sub nom., Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89
L. Ed. 2d 538 (1986), abrogated on other grounds, Pfeiffer v. Marion Ctr.
Area School Dist., 917 F.2d 779 (1990). We therefore hold that the circuit court erred
as a matter of law in interpreting this rule as singularly requiring plaintiffs to prove
that the preparer of the accident diagram, Mr. Green, had personal knowledge concerning
the location of the eastbound shifter locomotive at the time of the collision.
We are handicapped in determining
whether the trials court's exclusion of this evidence is supportable on other grounds
(i.e., whether plaintiffs otherwise satisfied the knowledge requirement of Rule 803(6)) by
the fact that the parties stipulated that a custodian of the record in question was not
required to testify. On this basis alone, we are inclined to excuse any failure by
plaintiffs to demonstrate that the accident diagram was based upon a source with
knowledge. See United States v. Saunders, 886 F.2d 56, 59 (4th Cir. 1989)
(stipulation that police reports were records that are maintained and kept as normal
and customary business records necessitated their admission at trial); Hard v.
Stevens, 65 F.R.D. 637, 639-40 (E.D. Pa. 1975) (stipulation waiving necessity of
calling custodian of records estopped party from challenging admission of hospital record
based upon lack of trustworthiness). Nevertheless, we are satisfied that the knowledge
requirement of Rule 803(6) was met here, based upon circumstantial factors that give rise
to an inference that the information contained in the accident diagram was derived from
sources with knowledge.
While Rule 803(6) evidence is not
self-authenticating, see State v. Fairchild, 171 W. Va. 137, 147, 298 S.E.2d
110, 120 (1982) (in no instance may records of this kind prove themselves); Daniel
B. v. Ackerman, 190 W. Va. 1, 6, 435 S.E.2d 1, 6 (1993), this does not preclude
admission where either the record itself or other circumstantial factors provide the
necessary foundation. The testimony of the custodian or other qualified witness is
not a sine qua non of admissibility in the occasional case where the qualification as a
business record can be met . . . by circumstantial evidence, or by a combination
of direct and circumstantial evidence. Zenith Radio Corp. v. Matsushita Elec.
Indus. Co., Ltd., 505 F. Supp. 1190, 1236 (E.D. Pa. 1980), modified on
other grounds, 723 F.2d 238 (3d Cir. 1983); see also United States v. Franco,
874 F.2d 1136, 1140 (7th Cir. 1989); United States v. Kail, 804 F.2d 441, 449 (8th
Cir. 1986); White Indus. v. Cessna Aircraft Co., 611 F. Supp. at 1060; see
generally 5 Weinstein & Berger, supra, § 803.11, at 803-59
to -60. Thus, the foundation required by Rule 803(6) may be established by
circumstantial evidence, or by a combination of direct and circumstantial evidence.
In this case, two factors create a
strong inference that CSX had a regular practice of predicating its accident reports on
first-hand information: First, plaintiffs' expert, Dr. Berg, testified that it is standard
procedure for railroad investigators to interview a locomotive crew following their
involvement in an accident. Importantly, Rule 803(6) permits the foundational requirements
to be shown by the testimony of the custodian [of the record] or other qualified
witness. (Emphasis added.) A qualified witness is not required
. . . to have personally participated in or observed the creation of the
document . . ., or know who actually recorded the information
. . . . United States v. Franco, 874 F.2d at 1139
(citations and internal quotation marks omitted). Rather, a foundational witness
need only be someone with knowledge of the procedure governing the creation and
maintenance of the records sought to be admitted. United States v. Keplinger,
776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183, 106 S. Ct.
2919, 91 L. Ed. 2d 548 (1986).See
footnote 18 18 Doctor Berg's testimony regarding accident-investigation
procedure provided circumstantial proof that the accident diagram was likely based upon
information provided by the CSX employees involved in the accident.
The second circumstantial factor
supporting admission of the accident diagram is the fact that the CSX personnel engaged in
reporting the collision_from the locomotive crews involved in the accident to the employee
responsible for preparing the accident diagram_were acting under a duty of accuracy.
Railroads are required to accurately record and report information concerning
grade-crossing accidents. 49 C.F.R. §§ 225.11, 225.19(b) (1998); W. Va. C.S.R.
§ 150-8-2 (1984). Federal regulations also mandate that railroads such as CSX adopt
and comply with a written internal control plan pertaining to the reporting of
accidents, and that they disseminate among their employees [a] policy statement
declaring the railroad's commitment to complete and accurate reporting of all accidents,
incidents, injuries . . . arising from the operation of the railroad, [and] to full
compliance with the letter and spirit of [the Federal Railroad Administration's] accident
reporting regulations. 49 C.F.R. § 225.33(a)(1) (1998). The legal duty imposed
upon CSX effectively creates a duty for its employees to reliably report accidents.
Indeed, individual railroad employees are subject to possible criminal and/or civil
penalties for causing the railroad to violate the mandated reporting requirements. 49
U.S.C. § 21311(a) (1994); 49 C.F.R. § 225.29 (1998).
A report or other record prepared by an organizationSee footnote 19 19 in routine compliance with state and/or federal law is prima facie sufficient under Rule 803(6), where the duties imposed by such law give rise to an inference that it was a regular practice to base the report or record upon first-hand knowledge. Therefore, we hold that in light of circumstantial evidence demonstrating both a routine practice of obtaining information from railroad personnel involved in accidents, and an organization-wide duty to accurately report such mishaps, there was a sufficient foundation to warrant admission of the accident diagram in its entirety.
During oral argument CSX asserted that
the trial court's ruling was proper in that the statement contained within the diagram was
untrustworthy. A trial court is entrusted with considerable discretion to exclude evidence
that, although it satisfies the foundational requirements of Rule 803(6), otherwise lacks
trustworthiness; however, it is not entirely clear that the court below was attempting to
exercise its discretion in this manner. Moreover, a record of a regularly conducted
activity that meets the foundational requirements of Rule 803(6) is presumptively
trustworthy, and the burden to prove that the proffered evidence was generated under
untrustworthy circumstances rests upon the party opposing its admission. See Syl.
pt. 4, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982) (Records
made routinely in the regular course of business . . . are generally trustworthy
and reliable, and therefore ought to be admissible when properly verified.); cf.
Syl. pt. 4, Hess v. Arbogast, 180 W. Va. 319, 376 S.E.2d 333 (1988)
(Under W. Va. R. Evid. 803(8)(C), the contents of a public report or document
are . . . assumed to be trustworthy, unless the opponent of the report
establishes that the report is sufficiently untrustworthy.).See footnote 20 20
The presumption of trustworthiness is particularly robust where, as here, the record is adverse to the party who prepared it. Compare Yates v. Blair Transp., Inc., 249 F. Supp. 681, 690 (S.D.N.Y. 1965) (trustworthiness of medical records enhanced by fact that they were adverse to party on whose behalf they were prepared), with Palmer v. Hoffman, 318 U.S. 109, 114-15, 63 S. Ct. 477, 481-82, 87 L. Ed. 645, 650-51 (1943) (report of train accident prepared by the engineer two days after accident and favorable to railroad deemed inadmissible as made in contemplation of litigation).
CSX has not pointed to anything
suggesting that its own report was prepared under questionable circumstances. The
fact that the diagram in question was adverse to its originator unquestionably provides
significant indicia of reliability. Also, the trustworthiness of this record is bolstered
by the ultimate purpose for its preparation, which was to satisfy federal reporting
requirements. See Lewis v. Barker, 526 F.2d 470, 473-74 (2d Cir. 1975) (fact that
railroad was required to file accident report with the ICC gave report sufficient
indicia of trustworthiness to be admissible as business record). We therefore fail
to discern any basis upon which to conclude that the statement regarding the location of
the eastbound shifter was untrustworthy.
Finally, CSX argues that any error
related to the circuit court's exclusion of this evidence was harmless in that it was
cumulative of other evidence presented at trial. Our review of the record indicates,
however, that the only other evidence at trial relating the position of the eastbound
locomotive at the time of the accident was the testimony of the engineer, Calvin Bowen.
Bowen's statements on this issue were inconsistent, since at one point he indicated that
his locomotive was 300 to 400 feet from the Fifth Street crossing when the accident
occurred, while at another he stated that he was just east of the Second Street
crossing (which can be construed as far away as three blocks from the site of the
collision). Given this apparent contradiction in Bowen's testimony, we find no merit in
CSX's assertion that the statement contained in the diagram was harmlessly cumulative of
Thus, based on the importance of the
evidence in question to support the testimony of plaintiffs' expert, as well as to deflect
CSX's assertions regarding the proximity of the second locomotive at the time of the
collision, we find that the trial court's interpretation of Rule 803(6) as requiring the
preparer of a record of a regularly conducted activity to have personal knowledge
regarding its contents, and the concomitant refusal to admit the statement regarding the
location of the eastbound shifter locomotive, was reversible error.See footnote 21 21
For the reasons stated, the judgment of
the Circuit Court of Kanawha County is hereby reversed and remanded for a new trial
consistent with this opinion.
Reversed and remanded.
Footnote: 11It was not disputed that the westbound train involved in the collision properly sounded its whistle as it approached the crossing, and that its headlights were functioning. Thus, it was conceded by plaintiffs that the individuals operating this train were not at fault in the accident. There was, however, conflicting testimony regarding whether there were rail cars parked on the side tracks obstructing Sullivan's view of the approaching westbound locomotive.
Footnote: 2249 C.F.R. § 234.225 provides:
A highway-rail grade crossing warning system shall be maintained to activate in accordance with the design of the warning system, but in no event shall it provide less than 20 seconds warning time for the normal operation of through trains before the grade crossing is occupied by rail traffic.
Footnote: 33In support of the latter assertion, Dr. Berg cited, among other authority, a manual published under the auspices of the U.S. Department of Transportation. See American National Standards Institute, Manual on Uniform Traffic Control Devices for Street and Highways § 8C-5 (1988) (Where the speeds of different trains on a given track vary considerably under normal operation, special devices or circuits should be installed to provide reasonably uniform notice in advance of all train movements over the crossing.). This manual has been adopted by the West Virginia Department of Transportation, Division of Highways. W. Va. C.S.R. § 157-5-2.1 (1994).
Footnote: 44In contrast to the main lines, where the fixed distance circuitry is activated when a train is within 2,000 to 2,200 feet of the Fifth Street crossing, on the side tracks, where the maximum speed is limited to 15 miles per hour, the warning is activated when a train is only 500 to 600 feet from the crossing.
Footnote: 55While 49 C.F.R. § 234.225 mandates a minimum warning time of twenty seconds, there are apparently no restrictions on the maximum warning time that may be provided to motorists. Federal regulations do, however, place certain responsibilities upon railroads to remedy false activations of crossing warning systems. See 49 C.F.R. § 234.107 (1998).
Footnote: 66The instruction informed the jury that it is your duty to make an honest and sincere effort [to] . . . arrive at a verdict, if it's at all possible. [J]uror[s] should not be obstinate. They should not be stubborn. They should be open minded and should listen to the arguments of others, and should talk the matters over freely and fairly, and make an honest effort, as fair-minded women, to come to a conclusion on all of the issues presented . . . so long as each juror can do so without sacrificing her own convictions.
A similar instruction was approved by the Supreme Court of the United States in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
Footnote: 77The special verdict returned by the jury was as follows:
1. Do you find from a preponderance of the evidence that defendant, CSX Transportation, Inc., was negligent?
2. If so, do you find such negligence on
the part of CSX Transportation, Inc., was a proximate cause of the injuries sustained by
3. Do you find from a preponderance of
the evidence that the defendant, Cacoe Sullivan, was negligent?
4. If so, do you find such negligence on
the part of Cacoe Sullivan was a proximate cause of the injuries sustained by the
5. Do you find from a preponderance of
the evidence that the plaintiff, Tanya Lacy, was negligent?
6. If so, do you find such negligence on
the part of Tanya Lacy was a proximate cause of the injuries sustained by the plaintiffs?
7. Do you find from a preponderance of
the evidence that the plaintiff, Richard Brooks, was negligent?
8. If so, do you find such negligence on the part of Richard Brooks was a proximate cause of the injuries sustained
by the plaintiffs?
9. What percent of negligence, if any,
do you assess to each of the parties listed below:
Inc. 1 %
Cacoe Sullivan 97 %
Tanya Lacy 1 %
Richard Brooks 1 %
10. Did CSX Transportation, Inc., act in
a willful, wanton or reckless manner or with criminal indifference to its civil
obligations which proximately caused the accident of January 11, 1995?
For the reasons discussed infra, note 11, we expressly disapprove of this verdict form.
Footnote: 88Under the doctrine of joint and several liability, [a] plaintiff may elect to sue any and all of those responsible for his [or her] damages from whomever is able to pay, irrespective of their percentage of fault. Syl. pt. 2, in part, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va. 698, 289 S.E.2d 679 (1982).
Footnote: 99CSX's proposed instruction stated: You are instructed that West Virginia recognizes the principle of law known as joint and several liability, which provides that any party against whom a finding of negligence is made can be held responsible for the entire verdict.
Footnote: 1010Rule 61 of the West Virginia Rules of Civil Procedure provides:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Footnote: 1111The apportionment of fault in paragraph 9 of the verdict form, (see note 7 supra), was at best superfluous, and conceivably rendered the jury's special verdict fatally inconsistent. While the jury assigned negligence to each of the parties, only one of them, Cacoe Sullivan, was specifically found by the jury to have been guilty of negligence that proximately caused the accident.
In cases involving concurrent and/or comparative negligence, the jury is asked to apportion fault only to those parties whose negligence is otherwise found to have proximately caused the injury. Importantly, the jury should not be asked to consider a defendant's individual degree of negligence until it has first considered the primary issues of the defendant's liability to the plaintiff and the plaintiff's degree of contributory negligence. King v. Kayak Mfg. Corp., 182 W. Va. 276, 280, 387 S.E.2d 511, 514 (1989); cf. Bradley v. Appalachian Power Co., 163 W. Va. 332, 342-43, 256 S.E.2d 879, 885 (1979). The interrogatory in this case should have conditioned any apportionment of responsibility upon a finding that two or more of the parties were negligent, and that such negligence was a proximate cause of the collision. E.g., Henry Woods & Beth Deere, Comparative Fault § 20:11, at 473 (3d ed. 1996).
Since plaintiffs apparently did not object below to the verdict form, and do not presently assign error with respect to the consistency of the jury's special verdict, we will not directly address this issue.
Footnote: 1212Counsel for CSX conceded at oral argument that the diagram in question was prepared in the course of satisfying the reporting requirements of state and federal law. See 49 U.S.C. § 20901 (1994); 49 C.F.R. pt. 225 (1998); W. Va. C.S.R. § 150-8-2 (1984).
Footnote: 1313Plaintiffs asserted at trial that CSX had stipulated to the fact that if a custodian of the railroad's accident reports were called as a witness, he or she would testify that the diagram in question was prepared by Mr. G.A. Green, a CSX employee, in connection with his routine investigation of the collision. While CSX stated at trial that it did not stipulate to the admissibility of the diagram, the railroad has never, either before the trial court or in its brief or arguments directed to this Court, contested plaintiffs' representation. We therefore proceed upon the assumption that CSX waived the necessity of plaintiffs calling the custodian of the accident report, which, at the very least, obviated any need to authenticate the record or show that it was produced in the course of a regularly conducted activity. (Counsel for CSX in fact conceded the latter point during oral argument.) The circuit court apparently proceeded on the same assumption, since it admitted the balance of the accident diagram. We take this opportunity to stress, however, that Rule 23.05 of the West Virginia Trial Court Rules now provides: Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.
Footnote: 1414We reject out-of-hand CSX's argument that plaintiffs waived the present claim of error by withdrawing the remainder of the diagram. Plaintiffs clearly objected to the trial court's exclusion of the statement regarding the eastbound locomotive, and it is this exclusion of evidence that they challenge on appeal.
Footnote: 1515Rule 803(6) provides:
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
. . . .
(6) Records of Regularly Conducted Activity._A memorandum,
report, record, or data compilation, in any form, of acts, events, conditions, opinions,
or diagnoses, made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum, report,
record, or data compilation, all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term business as used in
this paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
Footnote: 1616Rule 602 provides in relevant part that [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
Footnote: 1717Rule 803(6) does not eliminate the problem of multiple hearsay: Each participant in the chain that created the document_from the initial observer-reporter to the final entrant_must be acting in the course of the regularly conducted business, or the evidence must meet the test of some other hearsay exception. The reason underlying the business records exception fails if any of the participants is outside the pattern of regular activity. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.11, at 803-69 (Joseph M. McLaughlin ed., 2d ed. 1999); see also United States v. Bueno-Sierra, 99 F.3d 375, 379 n.10 (11th Cir. 1996) ([E]ach link in the chain of possession must satisfy the requirements of the business records exception or some other exception to the hearsay rule.) (citation omitted). Thus, as the circuit court correctly perceived, hearsay statements contained in police reports are inadmissible where the declarant has no duty to report. See 2 Cleckley, supra, § 8-3(B)(6), at 227-28 (Whether . . . [a record made by a police dispatcher] is a business entry may well be determined by the duty of the caller to give such information and whether the caller had first-hand knowledge of the facts that were actually reported.); see also United States v. Snyder, 787 F.2d 1429, 1434 (10th Cir.), cert. denied, 479 U.S. 836, 107 S. Ct. 134, 93 L. Ed. 2d 78 (1986) (although entries in a police or investigating officer's report which result from the officer's own observations and knowledge may be admitted [under Rule 803(6)], statements made to the officer by third parties under no business duty to report may not ).
Footnote: 1818In determining the admissibility of records under Rule 803(6), a trial court is not bound by the rules of evidence. W. Va. R. Evid. 104(a), 1101(b)(1).
Footnote: 1919Records prepared by government organizations are generally admissible under Rule 803(6), notwithstanding their admissibility as public records under W. Va. R. Evid. 803(8). See United States v. Orozco, 590 F.2d 789, 793 (9th Cir.), cert. denied, 442 U.S. 920, 99 S. Ct. 2845, 61 L. Ed. 2d 288) (1979) (governmental functions could be included within the broad definition of 'business' in Rule 803(6)).
Footnote: 2020The Advisory Committee Notes to Fed. R. Evid. 803(6) reflect the similar understanding that the rule proceeds from the base that records made in the course of a regularly conducted activity will be admissible but subject to authority to exclude if 'the sources of information or other circumstances indicate lack of trustworthiness.' See also In Re Japanese Elec. Prod. Antitrust Litig., 723 F.2d at 288 (burden of proving untrustworthiness rests upon party opposing admission).
Footnote: 2121Because we reverse on other grounds, we decline to address plaintiffs' claim that the circuit court erred in refusing to instruct the jury on strict liability.