Tillman ex rel. Migues v. Singletary

881 So. 2d 198, 2001 Miss. App. LEXIS 110, 2001 WL 268246
CourtCourt of Appeals of Mississippi
DecidedMarch 20, 2001
DocketNo. 1999-CA-00686-COA
StatusPublished
Cited by4 cases

This text of 881 So. 2d 198 (Tillman ex rel. Migues v. Singletary) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tillman ex rel. Migues v. Singletary, 881 So. 2d 198, 2001 Miss. App. LEXIS 110, 2001 WL 268246 (Mich. Ct. App. 2001).

Opinions

KING, P.J.,

for the Court:

¶ 1. Theresa Migues, on behalf of her minor daughter, Stephanie Tillman, sued David Singletary and Stacey Powe in the Harrison County Circuit Court. While swimming in the Tchoutacabouffa River, Tillman sustained injuries when a powerboat driven by Powe and owned by Single-tary struck her. During the trial, the judge granted Singletary a directed verdict on the issues of negligent entrustment and punitive damages. The jury returned verdicts for Singletary and Powe on the remaining issues. Tillman then filed appropriate post trial motions, which were denied. Aggrieved by this decision, Tillman appeals and raises the following issues: 1) did the trial court commit reversible error by granting the defendants’ jury instructions on unexpected and unavoidable accidents; 2) did the trial court commit reversible error by failing to grant the appellant’s requested instruction P-5; 3) was defendant David Singletary entitled to a Rule 50 directed verdict on the issues of negligent entrustment and punitive damages; 4) did the trial court commit reversible error in submitting a special interrogatory to the jury that was misleading and confusing and failed to allow that both defendants were operators of the vessel that injured the appellant; and 5) was the verdict against the overwhelming weight of the evidence?

¶ 2. This Court affirms this decision as it relates to Singletary and reverses and remands for a new trial as it relates to Powe.

FACTS

¶ 3. On Saturday evening, in the summer of 1995, Stephanie Tillman was swimming in the Tchoutacabouffa River. A large number of persons were also enjoying activities in and around the river at that time. Among those persons were Powe and Singletary, who were traveling in a speed boat owned by Singletary. While riding on the crowded river, Powe and Singletary observed a boat in front of them carrying tubers. Powe slowed the boat to about ten knots and stood up to get a better view of the tubers and nearby swimmers. While Powe was standing, a passing ski boat caused a series of waves to wash past the boat. These waves rocked the speed boat during which time Powe’s knee buckled. Powe had suffered reoccurring knee problems since 1989, with the latest having occurred eight months prior to this accident.

¶ 4. Powe lost control of the boat and fell between the passenger and driver seats. The boat then began to spin toward a dock. Singletary took control of the boat and killed the engine. Despite Single-tary’s efforts, the boat continued to spin, crashed into the dock and struck Tillman. Powe jumped from the boat and pulled Tillman to safety.

¶ 5. Police and emergency crews arrived and transported Tillman to the hospital. Tillman received extensive injuries to her left upper arm. As a result of these injuries, Tillman had to undergo plastic surgery and psychological counseling. The police conducted an investigation, which included an interview with Singletary and Powe at the scene. During the interview Powe acknowledged having consumed one beer approximately four hours before the incident and Singletary said that he had consumed three beers. Testing revealed that Powe’s blood alcohol content did not exceed the statutory limit. Likewise, there [201]*201was no indication of alcohol impairment of Singletary.

ISSUES AND ANALYSIS

I.

Did the trial court commit reversible error by granting the defendants’ jury instructions on unexpected and unavoidable accidents?

¶ 6. Tillman contends that the jury instructions on unexpected and unavoidable accidents were improper considering the facts of the case. Relying on Buford v. Riverboat Corporation of Mississippi, 756 So.2d 765 (Miss.2000), Tillman argues that this is not that rare occasion where Single-tary and Powe could not have foreseen this incident or prevented it from happening by exercising precaution.

¶ 7. An unavoidable accident is an occurrence that is not intended, but could not have been foreseen or prevented by the exercise of reasonable precaution under the circumstances. Buford v. Riverboat Corporation of Mississippi, 756 So.2d 765 (1129) (Miss.2000). Whether an accident is unavoidable must be determined on a case by case basis. Likewise, whether an unavoidable accident instruction is proper depends on the facts and circumstances of the particular case. Id.

¶ 8. An unavoidable accident instruction should only be granted in “situations where the accident may truly be said to be unavoidable.” Buford, 756 So.2d at 771 (citing Hollingsworth v. Thomas, 148 Ga.App. 38, 250 S.E.2d 791 (1978)). As noted, our supreme court has held that this instruction should very rarely be granted. This does not appear to be one of those rare circumstances where an unavoidable accident instruction should be given. See Pope v. Sanders, 217 So.2d 1, 3 (Miss.1968); Jones v. Richards, 254 Miss. 617, 181 So.2d 923, 925 (1966). In this case, Powe was aware of his history of reoccurring knee problems, but chose to operate the power boat on a crowded river while standing. Granting the instruction based on Powe’s knee buckling was not enough to establish that the accident as unavoidable.

II.

Did the trial court commit reversible error by failing to grant the appellant’s requested instruction P-5?

¶ 9. Instruction P-5 would have directed the jury to return a verdict for Migues should it find that the boat, while operated by Powe, was still under the direction and control of Singletary and that Singletary’s negligent supervision of Powe caused the accident. Accordingly, this Court affirms the verdict as to Singletary and thereby renders moot this issue.

III.

Was Defendant David Singletary entitled to a Rule 50 directed verdict on the issues of negligent entrustment and punitive damages?

¶ 10. Tillman argues that the trial judge erroneously granted Singletary’s motion for directed verdict on negligent entrustment and punitive damages. Tillman asserts that negligent entrustment should apply to this case because Single-tary negligently allowed Powe, who was inexperienced in the operation of the boat, to steer and operate the boat. Additionally, Tillman argues that punitive damages should have been considered by the jury based on evidence that Singletary was intoxicated while operating the boat.

¶ 11. In making a decision to grant or deny a directed verdict, the trial court must consider the evidence in the [202]*202light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence, as well as contemplating any uncontradicted evidence presented by the moving party. Pickering v. Industria Masina I Traktora, 740 So.2d 836 (¶ 23) (Miss.1999); American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). If the facts thus considered point so overwhelmingly in favor of the movant that reasonable men could not have rendered a different result, the directed verdict should have been granted. Pickering, 740 So.2d at 836 (¶ 23). This Court applies that same standard upon review of a directed verdict.

¶ 12. Applying this standard to the case at bar, we find that there is substantial evidence in the record to support the directed verdict and the evidence is of such quality and weight that affirmance of the verdict is required.

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881 So. 2d 198, 2001 Miss. App. LEXIS 110, 2001 WL 268246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tillman-ex-rel-migues-v-singletary-missctapp-2001.