                      IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 1999-CT-00686-SCT


STEPHANIE TILLMAN,
A MINOR, BY AND THROUGH
HER LEGAL GUARDIAN,
THERESA MIGUES
v.
DAVID SINGLETARY
AND STACY POWE


                               ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           08/17/1998
TRIAL JUDGE:                                HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    ROBERT H. TYLER
                                            MICHAEL E. BRUFFEY
ATTORNEYS FOR APPELLEES:                    BRITT R. SINGLETARY
                                            TINA ROSE SINGLETARY
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART - 11/13/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, JUSTICE, FOR THE COURT:

¶1.    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

¶2.     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.

¶3.     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.

¶4.     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

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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.

¶5.    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.

¶6.    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.

¶7.    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 favor 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

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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.

¶8.    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.

¶9.    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. Buford, 756 So. 2d at 770.

¶10.   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,


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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.

¶11.   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.

¶12.   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.

¶13.   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

improper persons or instrumentalities in work involving risk or harm to others; (c) in the

supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious

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conduct by persons, whether or not his servants or agents, upon premises or with

instrumentalities under his control. Restatement (Second) of Agency § 213 (1958).

¶14.   A party has the right to embody its theories of the case in the jury instructions provided

there is testimony and/or evidence to support it, and if the instructions are conditioned upon

the jury finding that such facts existed. Reese v. Summers, 792 So. 2d 992, 994 (Miss. 2001).

There was a sufficient basis of facts for the granting of plaintiff's instruction P-5, the

instruction on negligent supervision. The trial court erred in failing to put this instruction to

the jury.

              III.    WHETHER IT WAS ERROR TO GRANT A
                      DIRECTED VERDICT IN FAVOR OF SINGLETARY
                      ON THE ISSUE OF NEGLIGENT ENTRUSTMENT.

¶15.   Negligent entrustment is a theory of liability which may be summarized as follows:

              One who supplies directly or through a third person a chattel for
              use of another whom the supplier knows or has reason to know to
              be likely because of his youth, inexperience, or otherwise, to use
              it in a manner involving unreasonable risk of physical harm to
              himself and others whom the supplier should expect to share in
              or be endangered by its use, is subject to liability for physical
              harm resulting to them.

Sligh v. First Nat. Bank of Holmes County, 735 So.2d 963, 968-69 (Miss. 1999).

¶16.   Powe was twenty-five years old at the time of the accident. Although he had not

previously driven Singletary's boat, he testified that he had prior experience driving power

boats, sailboats and john-boats. Evidence supporting the circuit court's denial of the

instruction was the fact that Powe had prior boating experience. Furthermore, no evidence was

submitted which showed that Singletary had knowledge that Powe's knee could buckle under.

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Clearly the foreseeability element is not met. Thus, Singletary cannot be held accountable

under a theory of negligent entrustment. We affirm the circuit court's decision to direct a

verdict in favor of Singletary on negligent entrustment.

              IV.     WHETHER THE CIRCUIT COURT ERRED IN
                      GRANTING A DIRECTED VERDICT IN FAVOR OF
                      SINGLETARY ON THE ISSUE OF PUNITIVE
                      DAMAGES.

¶17.   Tillman appealed the directed verdict on the issue of punitive damages insofar as

Singletary was concerned. The basis for punitive damages is the testimony of a single witness

that Singletary was staggering and red-eyed and appeared drunk after the accident. On cross-

examination, however, this witness said that she got no closer than thirty-five feet to

Singletary. Powe and Singletary testified that Singletary had consumed a minimal amount of

alcohol, and later witnesses offered substantiation during the presentation of defendants' case.



¶18.   Punitive damages may be recovered for willful and intentional wrong and for such gross

and reckless negligence as is equivalent to willful wrong. A trial court's decision not to send

punitive damages to the jury will only be reversed upon a finding of an abuse of discretion.

Hurst v. Southwest Miss. Legal Servs. Corp., 708 So. 2d 1347, 1351 (Miss. 1998). The

circuit court did not abuse its discretion in directing a verdict for Singletary on the issue of

punitive damages.

                                       CONCLUSION




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¶19.   In summary, we affirm in part and reverse in part the Court of Appeals' judgment. We

affirm the circuit court's grant of directed verdicts on the issues of negligent entrustment and

punitive damages. We reverse the circuit court's judgment and remand for 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.

¶20.   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:

¶21.   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



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unavoidable accident jury instruction should not have been given. For this reason, I concur in

part and dissent in part.

¶22.    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).

¶23.    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.

¶24.    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

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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 man

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.

¶25.   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:

¶26.   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

                                              10
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.

¶27.   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
       control of his vehicle, resulting in an accident. In such circumstance, a sudden,


                                                  11
        unanticipated, and unavoidable event is the proximate cause of the accident and
        thus does not give rise to a claim for negligence.
                The instruction properly recited the applicable law and conditioned a
        result favorable to Powe on the jury's resolving the critical disputed issues of
        fact in his favor. That is apparently what the jury did. Whether that verdict was
        against the weight of the evidence is another matter, but that question cannot be
        resolved by considering the manner in which this jury was instructed. It was not
        error to submit Powe's theory of the case to the jury through an unavoidable
        accident instruction.

Migues ex rel. Tillman v. Singletary, 2001 WL 268246, at *4 (Miss. Ct. App. 2001)

(McMillin, C.J., dissenting).

¶28.    There is no question that this was a tragic accident, and Tillman suffered serious

injuries. However, she presented her case before a Harrison County Circuit Court judge and

jury, and in my view the judge properly granted directed verdicts on the issues of negligent

entrustment and punitive damages. The jury heard the evidence and found for Singletary and

Powe on the issues of negligent supervision and unavoidable accident. I would reverse the

Court of Appeals with regard to its decision to reverse and remand in part, and would affirm

the trial court’s judgment in its entirety.

        SMITH, P.J., JOINS THIS OPINION. WALLER, J., JOINS THIS OPINION IN
PART.




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