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Tillman v. Singletary11/13/2003
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/17/1998
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 11/13/2003
EN BANC.
. This action for negligence arises from a boating accident in Harrison County. The circuit court rendered partial directed verdicts in favor of each of the two defendants, and the jury found for the defendants on the remaining issues. A divided Court of Appeals affirmed in part and reversed and remanded in part, finding that a jury instruction on unavoidable accident was improperly given. Tillman ex rel. Migues v. Singletary , 2001 WL 268246 (Miss. Ct. App. 2001). After granting certiorari, we affirm in part and reverse and remand in part.
FACTS
. Singletary and Powe were boating in Singletary's 115-horsepower motorboat on a sunny weekend day of water activity on the busy Tchoutacabouffa River. Powe was Singletary's employee , but this outing was not work related. After a stop for a social visit, Powe asked for and received Singletary's permission to take the helm. Powe had never driven the boat, but had some prior experience driving powerboats. Powe set off with Singletary acting as his look-out and adviser.
. As he navigated the river, Powe soon found himself trailing a pair of inner tube riders being towed by another boat some 200 yards ahead. The "tubers" fell off at the edge of a sharp bend in the river, and Powe stood at the helm to get a better view. The lead boat was turning left to pick up its fallen tubers, another boat was coming up from behind Powe, and jet skis were approaching from the opposite direction on his port side, all as Powe rounded the sharp bend in the river.
. Singletary said he advised Powe to pass the lead boat on its right side, toward the river bank. Powe said he slowed the boat to 10 to 12 knots. As he attempted to go around the lead boat, the impact of the other boats' wake caused his gamy knee to collapse. Powe fell into the boat, away from the steering wheel. Singletary testified that the force of these events almost threw him off the boat and pinned him against the passenger side of the boat. After the boat had been out of control for some fifteen seconds, Singletary managed to grab the steering wheel and shut down the motor. Obviously, there was no cut off switch to the engine attached to the operator. During all this, however, the boat had careened into the roped-off swimming area of a private lot, where it hit twelve-year-old Stephanie Tillman. The youth suffered multiple lacerations of her upper left arm and shoulder which left permanent scarring. Tillman said she saw Singletary at the controls of the boat before she was hit.
. Powe testified he never saw the tethered wooden swimming platform at the heart of the swimming area. Singletary said he knew from experience that the swimming area was there, but it could not be seen by Powe from the direction his boat made the "blind curve." Powe was given a sobriety test and registered a .025 blood alcohol level. Singletary was not tested for alcohol.
. Powe's knee had been injured three times. The first injury required surgery. Surgery was recommended after the second injury, but was not done. At the time of the accident, Powe was recuperating from a third knee injury which occurred eight months before. On that occasion Powe's knee locked, causing him to fall to the ground.
. Tillman sued Powe and Singletary for negligence in the operation of the boat. The complaint also charged Singletary with negligent entrustment of his boat to Powe. The circuit court rendered a directed verdict in fa
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