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Tillman v. Singletary11/13/2003
an switch was not attached to the operator, and Singletary obviously did not instruct or require it to be attached. If the dead man switch was attached and the operator fell, the engine is immediately killed, and the boat would not have operated for 15 seconds and lacerating a girl in the swimming area. The propeller stops upon the activation of the kill switch. A negligent entrustment instruction should have been submitted to the jury based on the evidence given. Likewise, it is "foreseeable" that a boat operator who is not properly equipped with a "dead man switch" may be involved in an accident such as this because he is unable to stop the engine once he has lost control of the boat. Clearly, the circumstances presented do not support an unexpected or unavoidable accident jury instruction.
. Accordingly, I concur in part and dissent in part.
WALLER, J., JOINS THIS OPINION IN PART.
COBB, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
. I agree with the majority's affirmance of the decision of the circuit court and the Court of Appeals to grant a directed verdict to Singletary on the issue of negligent entrustment and to both Singletary and Powe on the issue of punitive damages. However, I respectfully dissent as to the majority's decision to reverse the jury verdict and remand for a new trial.
. In my view, the Court of Appeals was correct in its decision to affirm the trial court's decision on all issues as they related to Singletary. I respectfully disagree with the Court of Appeals majority's decision to reverse and remand for a new trial of Powe, as I believe Chief Judge McMillin's dissent correctly states the law as applied to the facts regarding Powe, and I adopt his opinion in that regard, as follows:
I respectfully dissent as to the majority's decision to reverse the jury verdict in Powe's favor because the jury was instructed on the principle of unavoidable accident. The unavoidable accident instruction was properly given, since it was both a correct statement of the law and was supported by evidence in the record. See Turner v. Temple , 602 So.2d 817, 823 (1992). Powe's theory was that a sudden and unforeseeable collapse of his knee caused him to fall and lose control of the boat and that this was the proximate cause of the accident, as opposed to the various theories of negligence advanced by the plaintiff.
The majority finds the instruction improper, not because it incorrectly recites the applicable law, but because "Powe was aware of his history of reoccurring knee problems, but chose to operate the power boat on a crowded river while standing." With respect to my colleagues in the majority, the question of whether, based on his prior medical history, Powe should have anticipated and taken greater precaution against a sudden physical collapse of his knee was a question of fact to be resolved by the jury . [emphasis mine] The instruction fully accommodated that proposition, since it required the jury to find as a matter of fact that the collapse was "unexpected and unforeseeable" before it could apply the concept of unavoidable accident. There was substantial evidence presented concerning the condition of Powe's knee, but there was no evidence that he had ever before experienced a sudden collapse of the nature he described to the jury. On the evidence in this record, a finding of fact that Powe had no good reason to think that his knee would unexpectedly buckle and cast him away from the boat's controls was entirely within the realm of the jury's discretion. I can see no difference between this case and one where a person driving a vehicle suddenly faints or is subjected to a disabling seizure and loses co
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