Under 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.
Plaintiffs sought review of judgment entered upon jury's verdict by the Circuit Court of Kanawha County (West Virginia) in an action filed against defendant railroad for injuries sustained as a result of a collision. Plaintiff passengers filed suit against defendants, a railroad and the driver of the car, as a result of injuries suffered when defendant driver collided with a train owned by defendant railroad. Although the jury found that both defendants were negligent, it concluded in a special verdict that the negligence was not the proximate cause of plaintiffs' injuries. Plaintiffs asserted on appeal that the trial court erred in excluding a diagram prepared by defendant railroad's employee as hearsay and that counsel for one of the defendants was permitted to engage in improper argument regarding joint and several liability when he posited that his client would be charged with paying the entire judgment if both defendants were found liable.
Did the trial court err in excluding a diagram prepared by defendant railroad's employee as hearsay and argument regarding joint and several liability improper when counsel posited that his client would be charged with paying the entire judgment if both defendants were found liable?
On appeal, the court held that the argument by defendant's counsel constituted reversible error and that it was inappropriate and an abuse of discretion for the judge to either instruct the jury or permit counsel to communicate to the jury about the post-judgment effect of joint and several liability. Furthermore, the court's exclusion of the diagram on hearsay grounds was improper because the record was admissible under the business records exception.