Ghane and Ors v Mid-South Institute of Self Defence Shooting Inc and Ors (2014) H&FLR 2014-11 *
Supreme Court of Mississippi
16 January 2014
Coram: Waller CJ, Dickinson and Randolph PJJ, Kitchens, Pierce, King, Chandler, Coleman and Lamar JJ
Appearing for the Appellant: Benjamin Louis Taylor (of Taylor Jones & Taylor)
Appearing for the Respondent: Jay Marshall Atkins, Thomas P. Cassidy Jr (of Arnall Golden Gregory), Jeffrey E. Nicoson ( of Leitner, Williams, Dooley & Napolitan, PLLC), and Robert Q. Whitwell**.
Catchwords: Mississippi – firearm – live-fire training – Navy – accidental shooting – bulletproof wall – non-justiciable – political question – waiver – order
Facts: The defendants constructed and operated a live-fire training facility which the Navy frequently hired in order to conduct training. On 30 January 2008 during such a training exercise, a shot passed through a wall which was purportedly bulletproof, striking and killing a member of the naval team. The deceased’s survivors sought compensation from the defendants, but raised no claim against the Navy. Among the defences raised was comparative fault by the US Navy and personnel and the fact that the deceased had signed a general waiver in favour of the defendants.
It was not disputed that the law of Mississippi applied.
The defendants sought and were granted dismissal of the proceedings in the trial court on the grounds that the claim raised non-justiciable political questions relating to military training decisions and strategies. The plaintiffs appealed.
Held: By Randolph PJ, Kitchens, Pierce, King and Chandler JJ, allowing the appeal –
(1) The presence of any of six factors indicates a non-justifiable political question. The factors are (a) a clear constitutional commitment of an issue to the legislature or the executive; (b) absence of judicial standards for resolving the issue; (c) an inability to decide the issue without first making a policy decision of a non-judicial type; (d) an inability to decide the issue without manifesting disrespect for the legislature or executive; (e) an unusual need for adherence to a political decision which had been made and (f) the risk of embarrassment flowing from multiple pronouncements on one matter.
Baker v Carr, 369 US 217 (1962), followed.
(2) The mere involvement of the military in a case would not create a political question. For a private contractor to raise the political question defence it must establish that the plaintiff’s case requires examination of a military decision and that that decision is not able to be reviewed by the Court.
Carmichael v Kellog, Brown & Root Services Inc., 572 F.3d 1271 (11th Cir. 2009), followed.
McMahon v Presidential Airways Inc., 502 F. 3d 1331 (11th Cir. 2007), applied.
(3) Broad, general waivers of negligence are to be construed strictly against the defendant asserting them.
Turnbough v Ladner, 754 So.2d 467 (Miss. 1999), applied.
(4) Quaere, whether a waiver applies to a person who undertakes the activity to which the waiver applies pursuant to binding orders.
By Dickinson PJ, that the appeal should be allowed because there was insufficient evidence as to whether a political question was in fact raised by the case.
By Waller CJ, Coleman and Lamar JJ (dissenting), that the appeal should be dismissed. The defendant’s decision to raise defences of causation and the Navy’s comparative negligence. This would require a jury to apportion fault between the Navy and the defendants and this would require military decision to be reviewed, presenting a non-justifiable issue.
The Court’s judgment is available here.
* This judgment is on the border of area of ‘health and fitness law’. It is included on the grounds that the political question defence may apply to some types of high level sport (for example, national or quasi-national teams or publicly funded teams and competitions) and because of the potential relevance of the waiver issue.
** Since appointed to the bench.