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Classic Coach8/1/2002
to infer McBride's being under the influence of drugs has already been refuted. Further, a contradiction arises between the majority's stated reasons for agreeing that the trial court properly excluded any consideration of Johnson's percentage of fault. The majority first states that there was no evidence that McBride and Johnson had taken drugs together (notwithstanding the fact that Johnson's own post-mortem drug test revealed evidence of amphetamines, methamphetamine, and marijuana, the same drugs that were in McBride's system). The majority then states that Johnson's drug test was irrelevant to any negligence finding, because he was a mere passenger. Given the circumstance that the two men had "spent the evening in Memphis looking for prospective employment," the trial court should have recognized how unlikely it would be that the two men, unbeknownst to each other, had coincidentally ingested the same drugs over the course of a long evening of job hunting.
. I would reverse and remand for a new allocation of fault in which the finder of fact weighs the evidence of drugs in McBride's system and considers whether Johnson should be assessed a percentage of fault for his own negligence in riding with McBride.
SMITH, P.J., JOINS THIS OPINION. WALLER, J., JOINS THIS OPINION IN PART.
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