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Accu-Fab & Construction3/14/2000
assumption on the hospital's part.
. As an appellate court, we traffic in concepts defined as best we can with the available words of our language. On occasion, words may fairly be said to be an imperfect means of communication. But to say that a mistake by an entity not a party to this litigation may be equated to a wrongful act by a party to the case, and then use that proposition as the basis to exclude relevant evidence is, in my view, an egregious mishandling of the essential tools of our trade.
. There is no hint that Anderson Corporation and Accu-Fab were engaged in an underhanded scheme to surreptitiously test an unconscious and dying Ladner for drugs. Evidence that he might have been impaired through the use of illegal drugs was certainly relevant. If it is to be excluded on retrial, it ought to be on some other basis than that advanced by the majority in its opinion.
. Ladner also points out that the trial court based its ruling in part on the proposition that the evidence of Ladner's drug use was so prejudicial that it failed to pass the filtering screen of Mississippi Rule of Evidence 403. To the extent that the trial court based its ruling on that idea, I would reject the notion out of hand. Certainly, evidence of impaired physical and mental capabilities brought on by self-administered illegal drugs may be prejudicial, but, when the issue is whether Ladner, by his actions, contributed to his own death, that evidence so fundamentally goes to the heart of the case that its probative value necessarily exceeds any attendant prejudice to the plaintiff. To hold otherwise would be to suggest that, in a tort suit involving an automobile accident, evidence that one driver was substantially intoxicated could be kept from the jury because of the inflammatory nature of such evidence in today's society.
. I conclude that we err when we preclude any possibility that the jury could hear evidence of Ladner's impairment based on drug use and would remand with instructions that the evidence might be admissible assuming the proper predicate could be laid to demonstrate that the drug concentration was sufficient to impair Ladner's mental and motor skills to even the slightest degree. See Allen v. Blanks, 384 So. 2d 63, 67 (Miss. 1980) (holding that " t is a fact capable of judicial notice that consumption of even small quantities of alcohol may significantly, albeit "imperceptibly," impair reaction time."). Whether impairment from marijuana use is a matter "capable of judicial notice" is a matter better left to be thrashed out at the trial level on remand, but, short of that, it is certainly a matter capable of scientific proof.
SOUTHWICK, P.J., JOINS THIS SEPARATE WRITTEN OPINION.
IRVING, J., CONCURRING IN PART, DISSENTING IN PART:
. With deference to the majority's views, I dissent from its holding that Bracken is not a joint tort-feasor for purpose of apportionment under Miss. Code Ann. § 85-5-7(7) (1972). The Mississippi Supreme Court's construction of this statute in Estate of Hunter, 729 So. 2d 1264 (Miss. 1999) leaves no room for equivocation on this issue. That is made certain by the following quote from Hunter: "This Court holds that the term 'party', as used in § 85-5-7(7), refers to any participant to an occurrence which gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial." Id at 1276.
. I also dissent from the majority's conclusion that the jury's apportionment of fault to Ladner, Bracken's employee, equates to constructive apportionment of fault to Bracken. I agree with the majority that a corporation acts through its agents and employees. However, Ladner was a common
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