IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 1999-CA-00686-COA

STEPHANIE TILLMAN, A MINOR, BY AND THROUGH HER LEGAL

GUARDIAN, THERESA MIGUES APPELLANT

v.

DAVID SINGLETARY AND STACY POWE APPELLEES

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 APPELLEE: TINA ROSE SINGLETARY

BRITT R. SINGLETARY

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: DIRECTED VERDICT AND JURY VERDICT FOR

DEFENDANTS

DISPOSITION: REVERSED AND REMANDED AS TO POWE AND

AFFIRMED AS TO SINGLETARY-3/20/01

MOTION FOR REHEARING FILED: 3/30/2001; denied 6/19/2001

CERTIORARI FILED: 7/18/2001; granted 10/11/2001

MANDATE ISSUED:

BEFORE KING, P.J., MYERS, AND THOMAS, JJ.

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 Singletary 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 Singletary'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 was 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 Singletary 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

Coporation of Mississippi, 756 So. 2d 765 (¶ 29) (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, 250 S.E. 2d 791

(Ga. App. 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, 181 So. 2d

923, 925 (Miss. 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 Singletary 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 light 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. In order for a negligent entrustment claim to lie, the defendant must (1)supply the chattel, (2)

know or have reason to know the person he supplies it to, because of his youth, inexperience or otherwise,

will use it in a manner involving unreasonable risk of physical harm, and (3) have reason to expect that

others may be endangered by the entrustee of the chattel. Sligh v. First National Bank of Holmes

County, 735 So. 2d 963 (¶ 62) (Miss. 1999). Singletary allowed Powe to operate the power boat. There

was evidence introduced that established Powe had prior boating experience of which Singletary was

aware. Tillman did not produce evidence to call into question that experience or accountability.
Accordingly, we cannot hold that the trial court erred by denying the directed verdict on negligent

entrustment. We next review Tillman's claim that the matter of punitive damages should have been submitted

to the jury.

¶13. In order for a trial court to award punitive damages, the plaintiff must demonstrate a willful or malicious

wrong or reckless disregard for the rights of others. Willard v. Paracelsus Health Care Group, 754 So.

2d 437 (¶ 20) (Miss. 1999) (citing Valley Forge Ins. Co. v. Strickland, 620 So. 2d 535, 540

(Miss.1993)). "Punitive damages are only appropriate in the most egregious cases so as to discourage

similar conduct and should only be awarded in cases where the actions are extreme." Willard, 754 So. 2d

at 442 (¶ 20).

¶14. When punitive damages is an issue, the trial judge initially determines whether to submit the issue to the

jury. Epps v. South Central Bell, 509 So. 2d 886, 892-93 (Miss. 1987). The trial judge is required to

review all the evidence presented and determine whether the facts of the case and the conduct of the

defendant justifies a jury consideration of punitive damages. Id. (quoting Blue Cross & Blue Shield of

Miss., Inc. v. Campbell, 466 So. 2d 833, 842 (Miss. 1984). In this case, Singletary testified that he

consumed three beers approximately four hours before the accident. Both Powe and Singletary testified that

Powe was operating the boat prior to the accident. In addition to that, Officer Polk testified that he did not

smell alcohol or notice any visible signs of intoxication. Officer Polk even allowed Singletary to drive the

boat back to his home. There was no evidence to indicate that Singletary was intoxicated at the time of the

accident. The trial judge considered the facts of this particular case, and determined that they did not justify

submitting an issue of punitive damages to a jury. This Court agrees.

¶15. Because we reverse and remand we find it unnecessary to address the remaining issues.

¶16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED

AND REMANDED AS TO POWE AND AFFIRMED AS TO SINGLETARY. COSTS OF THIS

APPEAL ARE ASSESSED TO THE APPELLANT.

PAYNE, BRIDGES, THOMAS, LEE, IRVING, AND MYERS JJ., CONCUR.

McMILLIN, C.J.,DISSENTS WITH SEPARATE OPINION JOINED BY SOUTHWICK,

P.J. CHANDLER, J., NOT PARTICIPATING.

McMILLIN, C.J., DISSENTING:

¶17. 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. Turner, 602 So. 2d 817, 823 (Miss. 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.

¶18. 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. 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, unanticipated, and unavoidable event is the proximate cause of the accident and

thus does not give rise to a claim for negligence.

¶19. 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.

SOUTHWICK, P.J., JOINS THIS SEPARATE WRITTEN OPINION.