NARJESS GHANE, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF SHAPOOR ALEXANDER (" ALEX" ) GHANE, JR.
MID-SOUTH INSTITUTE OF SELF DEFENSE SHOOTING, INC., A TENNESSEE CORPORATION; JFS, LLC, A MISSISSIPPI LIMITED LIABILITY COMPANY; JOHN FRED SHAW; DONALD ROSS SANDERS, JR. AND JIM COWAN
As Corrected May 21, 2014.
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/20/2011. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN.
FOR APPELLANT: BENJAMIN LOUIS TAYLOR.
FOR APPELLEES: JAY MARSHALL ATKINS, THOMAS P. CASSIDY, JR., JEFFREY EDWARD NICOSON, ROBERT Q. WHITWELL.
CHANDLER, JUSTICE. RANDOLPH, P.J., KITCHENS, PIERCE AND KING, JJ. CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. LAMAR, J. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND COLEMAN, J.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶1. This wrongful death action was brought against a private military contractor by Narjess Ghane, the mother of a deceased member of the Navy's Sea, Air, and Land Force (SEAL) Team Five. Along with other members of SEAL Team Five, SO2  Shapoor Alexander (Alex) Ghane Jr. was engaged in a live-fire, close-quarters combat training exercise at Mid-South Institute of Self Defense (" Mid-South" ) when a bullet allegedly penetrated a ballistic  wall, striking SO2 Ghane above his protective vest and killing him. Mid-South successfully moved for summary judgment on the ground that Mrs. Ghane's claim would require the trial court to question military policy and operational decisions, thus raising a nonjusticiable political question. The defendants had previously unsuccessfully moved for summary judgment on the ground that SO2 Ghane had signed a valid waiver of liability.
¶2. We reverse the trial court's grant of summary judgment pertaining to the political-question doctrine, and affirm the trial court's previous denial of summary judgment pertaining to the liability waiver. On the record before us, the defendants have failed to demonstrate that adjudication of this claim will require reexamination of matters inextricable from military policy and operational decisions. This tort action is based on the failure of the ballistic wall-a wall independently designed, constructed, and maintained by the defendants. The defendants have failed to demonstrate that military policy and operational decisions are essential to a determination of causation.
FACTS AND PROCEEDINGS BELOW
¶3. Mid-South is a privately owned live-fire training facility that the Navy SEALS have frequently rented for training exercises since the mid-1980s. John Shaw, the former owner of Mid-South and fifty-percent owner of JFS, LLC, the entity that now owns the property on which Mid-South is located, testified that, in the late 1980s, the SEALS who were training at Mid-South requested that Mid-South build shoothouses with ballistic walls. Shaw constructed the initial shoothouse walls with eight-inch railroad ties on both sides filled with eight-inches of sand.
¶4. The current general manager of Mid-South, Donald Sanders, testified that he was informally asked by the SEALS in the early 2000s to construct a shoothouse that more realistically represented structures the SEALS would encounter in the real world. Sanders and Shaw then designed and built thinner ballistic walls made of six-inch galvanized steel studs on each side, covered in an approximately three-eighths-inch-thick plastic, filled with limestone gravel. When designing and constructing the walls, they did not look to any other ranges, specifications, or guidebooks; nor did they consult an engineer. They tested the wall with multiple types of ammunition including rounds of 5.56mm " green-tip"  bullets and regular .308 caliber
ammunition. According to Sanders, no rounds breached the walls, and the green tip bullets penetrated only one-third of the way through the walls. The tops of the walls were left open so that gravel levels could be observed and refilled as needed.
¶5. On January 30, 2008, SEAL Team 5 was training at Mid-South under direct orders from the U.S. Navy. The SEALS brought their own equipment, weapons, and ammunition. Navy range safety officers (RSOs) oversaw the close-quarter combat (CQC) training. The SEALS were using the twenty-eight room ballistic shoothouse to practice room clearing. As part of the training exercise, the RSO placed a hostile paper target on a ballistic wall while the SEALS were " stacked" immediately on the opposite side of the wall. During the course of the exercise, SO2 Ghane was struck by a .223 caliber round (5.56mm NATO) of " green-tip" ammunition above his protective vest. Despite receiving immediate medical attention, he died from the wound shortly after being struck.
¶6. After the incident, both the Navy Criminal Investigative Services (NCIS) and Naval Special Warfare Group One (NSWG-1) conducted an investigation. A redacted copy of the subsequent NSWG-1 report was obtained by Mrs. Ghane through the Freedom of Information Act. The report includes extensive findings of fact, opinions, and conclusions. The following are excerpts from that report:
Findings of Fact
19. On or about October 18, 2007, the ST-5 Command master Chief (CMC) expressed some concern to Training Detachment (TRADET) personnel about the training tactics of [redacted].
20. TRADET personnel responded that [said training tactics] could be practiced at Mid South because the shoot house walls were ballistic.
47. [On the day SO2 Ghane died], At approximately 1400, [name redacted] entered a room followed by a number of [redacted] members including [name redacted] and SO2 Ghane.
50. SEAL team 5 members heard two snaps consistent with rounds exiting the wall at a high velocity and entering the first room.
51. As a result, SEAL Team 5 members on the other side of the wall were hit by debris and saw debris coming in the first room.
52. SO2 Ghane's teammates heard him exclaim, and then saw SO2 Ghane fall to the ground.
1. SO2 Ghane's death occurred in the line of duty and not due to his own misconduct.
2. The cause of SO2 Ghane's death was a defective Shoot House wall that did not provide the ballistic protection advertised by Mid South and paid for by the Navy.
3. Despite the omission of SEAL Team FIVE's statement of work from the NSWG-1 contract, Mid South knew that NSW units required ballistic protection sufficient for [green tip ammunition]. This opinion is supported by Mid South General Manager's statement acknowledging testing with [green tip ammunition], the website representation that the shoot house walls were ballistic, and years of instruction for NSW trainees using [redacted].
. . .
5. Mid South comments concerning [redacted] training included representations that all walls in both shoot houses were ballistic, that paper targets
were sufficient without bullet traps, and that target placement was unrestricted.
6. The design and construction of Mid South's current shoot house walls occurred ad hoc six years ago by the Mid South General Manager, who did not have any formal training, certification, or license in range engineering.
. . .
8. Possible design factors contributing to wall failure in this case include an insufficiently thick gravel wall, exposure of the interior gravel to changing weather conditions, and the lack of a ballistic steel plate within the wall.
9. The maintenance routine of randomly detecting and replacing worn plastic sheets and refilling low gravel levels was inadequate. This system focused more on the appearance of the wall exterior and tops than the condition of the contents inside the walls that stop bullet penetration. As such, that inspection regime was not able to adequately determine interior wall ballistic properties and degradation. Physical samples taken from the target area where the penetration occurred were clearly different from the gravel at the tops of the walls.
10. The testing that was the basis for proclaiming the shoot house walls ballistic was inadequate. The tests consisted of two repetitions, conducted six years ago, on the same wall, on the same day, under the same weather conditions, with new materials, and no objective criteria for measuring failure rates over time.
. . .
16. The effectiveness of any [military] inspection of Mid South shoot house walls is limited by the walls' original design. Mid South's current maintenance system is based on the appearance of non-ballistic exterior plastic retaining walls and the height of gravel levels at the top. Under the current design, it is impossible to check for interior wall degradation throughout the shoot house without cutting open every wall. Walls using ballistic steel allow inspectors to temporarily peel back the exterior material to inspect for interior degradation.
. . .
11. Recommend that no charges be brought against the TRADET safety officers on the scene. The ultimate cause of SO2 Ghane's tragic death stems from defective walls that were not ballistic as advertised and paid for in this case. While multiple factors, including the weather, ammunition, and tactics may have played a role, Naval Special Warfare's inability to detect that the ballistic shoot house was not designed, built, maintained, or tested based on formal objective standards was a systematic and critical failure. This oversight began the first time any naval Special Warfare unit used the current shoot house walls approximately six years ago and continued until January 30, 2008. As such, Naval Special Warfare ...