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Tillman v. Singletary11/13/2003
vor of Singletary on the issue of negligent entrustment and in favor of both defendants on the issue of punitive damages. The circuit court submitted the defendants' unavoidable accident instructions to the jury and refused to grant an instruction that would have allowed the jury to find Singletary liable for negligent supervision. The jury was given a plaintiff's instruction that both defendants could have been negligent by operating the boat at different times of the incident, but was also given a conflicting form of jury verdict that asked the jurors to determine which of the defendants was "the operator" of the boat on the day in question. The jury returned a verdict for both defendants, finding that neither defendant was negligent under the given instructions.
. The Court of Appeals found that giving Powe an unavoidable accident instruction was reversible error because he operated a power boat on a crowded river with knowledge of his bad knee. It also affirmed the directed verdict for boat-owner Singletary on the issues of negligent entrustment and punitive damages. Further, Singletary could not be liable for negligent supervision, apparently because that theory was subsumed by negligent entrustment. All other issues were deemed moot for purposes of the appeal.
DISCUSSION
I. WHETHER UNAVOIDABLE ACCIDENT JURY INSTRUCTIONS SHOULD HAVE BEEN GIVEN.
. An unavoidable accident is "an occurrence which was not intended, and, which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions." Buford v. Riverboat Corp. of Miss.Vicksburg , 756 So. 2d 765, 770-71 (Miss. 2000) (quoting William L. Prosser, 29, at 140 (4th ed. 1971) (footnote omitted)). An unavoidable accident instruction should be used with caution, only where the evidence presented was one of negligence and not an unavoidable accident. Buford , 756 So. 2d at 770.
. Here, the accident was avoidable. Even if Powe's knee had not locked up, Powe was guilty of negligence because he was going too fast under the circumstances (a bend in the river, other boat traffic, and people on jet skis), and he did not have the boat under proper control. Furthermore he was operating the boat without using the kill switch. A reasonably prudent boat driver should have known that he would be encountering the wakes of other boats and should have operated the boat in such a manner that the boat was able to negotiate the wakes without incident. Singletary testified that the force of hitting the other boat's wake almost threw him off the boat and pinned him against the passenger side of the boat. It is therefore clear that the boat was not under proper control.
. Nor can Singletary benefit from an unavoidable accident instruction. As discussed in the next issue, the jury should have been instructed to consider whether Singletary was negligent in failing to supervise Powe properly.
II. WHETHER A JURY INSTRUCTION ON NEGLIGENT SUPERVISION SHOULD HAVE BEEN GIVEN.
. Tillman offered, but was refused, a jury instruction on a theory of negligent supervision of Powe by Singletary, the more experienced boatman. Singletary was a more experienced boater, and he had a superior knowledge of the river and its riparian usage. Powe described Singletary as his "back seat driver." Singletary advised Powe how to go around the lead boat.
. A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders or in failing to make proper regulations; or (b) in the employment of impro
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