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Tanya L. LACY and Michael Lacy, Her Husband, Plaintiffs Below, Appellants,
v.
CSX TRANSPORTATION, INC., Defendant Below, Appellee.
Richard Brooks, Plaintiff Below, Appellant,
v.
CSX Transportation, Inc., Defendant Below, Appellee.
Supreme Court of Appeals of West Virginia.
*423 John H. Skaggs, Esq., Calwell & McCormick, Charleston, West Virginia, Attorney for Appellant Brooks.
William M. Tiano, Esq., Berthold, Tiano & O'Dell, Charleston, West Virginia, Attorney for Appellants Lacy.
Thomas J. Murray, Esq., Mary O'Neill, Murray & Murray, Sandusky, Ohio, Attorneys for Appellants Lacy and Brooks.
Marc E. Williams, Esq., Robert L. Massie, Esq., Paul J. Loftus, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia, Attorneys for Appellee CSX. *419 *420 *421
*422 McGRAW, Justice:
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 contentions.
I.
BACKGROUND
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.[1] Brooks was apparently rendered paraplegic by the accident.
It was undisputed that from Sullivan's view traveling on Third Avenue, a second, slowermoving *424 "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).[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 warning signals.
Plaintiffs' expert in the area of gradecrossing 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 accident.
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.[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 *425 trains to side tracks, where the fixed distance circuitry is specifically designed to accommodate the lower speeds,[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.[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.[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.[7] The circuit court entered judgment in *426 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.
II.
DISCUSSION
A.
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.[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.[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 liability.
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 *427 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 *428 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 doctrine.
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 appellantagainst 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 *429 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).
*430 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 rendered.
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 coveragejust 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 *431 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,[10] "[a] party is entitled to a new trial only if there is *432 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