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Tillman v. Singletary11/13/2003
a new trial consistent with this opinion as to both Powe and Singletary because the circuit court improperly granted the unavoidable accident instruction and improperly refused a jury instruction on the negligent supervision issue.
. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
PITTMAN, C.J., EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY WALLER, J. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., AND IN PART BY WALLER, J. DIAZ, J., NOT PARTICIPATING.
McRAE, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
. While I concur with the majority as to Issues I, II, and IV, I dissent as to Issue III. However, I choose to specifically write as to Issue I which concerns the unexpected or unavoidable jury instruction. Simply put, the operator could have powered down and put the boat in neutral and waited for traffic ahead to clear and/or if he was required or instructed and actually had the "kill switch" attached to his body, the "kill switch" would have killed the motor. Singletary instructed Powe to go around the right of the lead boat instead of instructing him to power down. Based on the record and as found by the Court of Appeals, the unexpected or unavoidable accident jury instruction should not have been given. For this reason, I concur in part and dissent in part.
. An unavoidable accident is one that could not have been foreseen or prevented by the exercise of reasonable precaution. Buford v. Riverboat Corp. of Miss.-Vicksburg , 756 So.2d 765, 771 (Miss. 2000). Only if the accident is truly "unavoidable," should an unexpected or unavoidable accident jury instruction be given. Id. (citations omitted). Such instructions should rarely be given. Pope v. Sanders , 217 So.2d 1, 3 (Miss. 1968).
. Based on the record, the accident is not one that could be characterized as "unavoidable," since circumstances clearly show that the defendants could have foreseen and/or prevented the boating accident. Both Singletary and Powe had been drinking. Powe had recurring knee problems which presented problems with his operation of the boat. Singletary knew of Powe's knee problems. Singletary was very familiar with that area of the river and knew about the swimming area. There was no "dead man switch," or cut off switch, for the engine on the boat. The majority even acknowledges that "there was no cut off switch to the engine attached to the operator." Had there been a "dead man switch" then the injuries sustained by the plaintiff may have been diminished and disfigurement limited as the engine would have been killed and the propellor would have stopped within seconds after Powe lost control of the boat.
. It is absurd to think that the fact that Powe's knee buckled would be enough for an unexpected or unavoidable jury instruction. Powe's knee buckling is not an unforeseeable or unpreventable event, when both defendants knew of the knee problem but chose to disregard the effect it may have on Powe's operation of the boat. Singletary clearly supervised Powe in the operation of the boat (as stated by the majority). Powe described Singletary as a back seat driver, and Singletary advised Powe how to go around the lead boat. He could have advised him to power down into neutral and await the departure of the lead boat. Powe worked for Singletary. To say he did not know about his unstable knee condition would be a jury question as enough evidence was submitted to allow it. Further, the majority points out that the dead m
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