## Facts

- Late at night, an автомобobile driven by Cacoe Sullivan carried Richard Brooks (front seat) and Tanya Lacy (back seat) along Third Avenue in St. Albans, West Virginia, near multiple railroad tracks owned by CSX Transportation, Inc.
- At the Fifth Street grade crossing, warning lights and gates were activated; Sullivan slowed but did not stop, turned onto Fifth Street, drove around a lowered gate arm onto the tracks, and the car was struck by a westbound train traveling about 50 mph.
- Brooks was rendered paraplegic; Lacy suffered substantial injuries.
- The train’s whistle and headlights were functioning, and plaintiffs conceded the westbound train crew was not negligent.
- Plaintiffs’ theory against CSX centered on railroad operations: CSX allegedly created a confusing and dangerous crossing condition by allowing a slow-moving eastbound train and a high-speed westbound train to approach the crossing at the same time, allegedly contributing to the motorist’s misjudgment.
- In consolidated suits against CSX and Sullivan, a bifurcated jury trial produced a special verdict finding CSX negligent but finding CSX’s negligence was not a proximate cause of the collision; judgment was entered for CSX.

## Issues

1. Whether it was reversible error to permit closing argument explaining joint and several liability in a manner aimed at influencing the jury based on who would ultimately pay a verdict (including speculation that the plaintiff would not collect from a family-member driver).
2. Whether the trial court erred in excluding, as hearsay, a location statement in a post-accident investigative diagram prepared by a CSX employee, offered under the business-records exception (W. Va. R. Evid. 803(6)).
3. Whether plaintiffs preserved the closing-argument error without a contemporaneous objection when they had already objected and lost on a motion in limine and the argument stayed within the scope permitted by the ruling.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the judgment for CSX and remanded for a new trial.
- It held the trial court generally abuses its discretion by permitting counsel to argue (or the court to instruct) about the operation of joint and several liability when the purpose is to comment on, or suggest, the doctrine’s effect on any party’s financial responsibility.
- It concluded CSX’s permitted closing argument on joint and several liability was improper and prejudicial in a trial where the jury found CSX negligent but not a proximate cause.
- It held the investigative diagram’s location statement was admissible under the business-records exception, and exclusion could have affected the jury’s evaluation of the crossing conditions, foreseeability, and proximate cause.
- It held a party need not contemporaneously object during closing argument when the party previously objected to an in limine ruling permitting such argument and the argument reasonably falls within the scope of the ruling.

## Legal Principles

- In civil cases, argument or instruction concerning joint and several liability is generally improper when used to invite the jury to consider the financial consequences of the doctrine for the parties rather than the elements of liability.
- Prejudicial closing argument may warrant a new trial when it risks misleading the jury on issues such as causation.
- Under W. Va. R. Evid. 803(6), records made as part of an entity’s regular business activity, including investigative materials prepared in the ordinary course, may be admissible if the foundational reliability requirements are satisfied.
- An evidentiary ruling based on a mistaken interpretation of an evidentiary rule presents a legal error that permits less deferential appellate review than a purely discretionary evidentiary call.
- Error is preserved for improper closing argument without a contemporaneous objection when an earlier objection to an in limine ruling covers the argument actually made and the argument stays within the scope authorized by the trial court.

## Conclusion

The court ordered a new trial because the jury was permitted to hear closing argument aimed at the financial consequences of joint and several liability, and because the exclusion of a CSX investigative diagram undercut plaintiffs’ proximate-cause theory about confusing simultaneous train movements at the crossing.


Lacy v. CSX Transp., Inc., 205 W. Va. 630, 520 S.E.2d 418 (W. Va. 1999)