Kharofa v. United States

• Decision Date: 08 August 2017
• Docket Number: Civil Action No. 5:15-cv-00088-CLS
• Parties: AHMAD A. KHAROFA, as personal representative of the Estate of Amer A. Kharofa, deceased Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Northern District of Alabama

AHMAD A. KHAROFA, as personal representative of the Estate ofAmer A. Kharofa, deceased Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No. 5:15-cv-00088-CLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

August 8, 2017

MEMORANDUM OPINION AND ORDER

Ahmad A. Kharofa seeks damages for the tragic death of his son, Amer A. Kharofa. His claim is based upon the Federal Tort Claims Act of 1946, as amended, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA").¹ He contends that his son's death was wrongfully caused by the combined and concurring negligence or recklessness of Mary Catherine Pearce and Jacob Wayne Battle, both of whom allegedly were acting within the line and scope of their employment as Sergeants in the Alabama Army National Guard. Specifically, plaintiff alleges that:

12. On or about June 4, 2011, upon a public road or highway, to-wit: Lightsey Road in Bibb County, Alabama, Mary Catherine Pearce, while acting within the line and scope of her employment with defendant, negligently and/or recklessly operated a motor vehicle by driving under the influence, driving over the posted speed limit, and thereby causing her to lose control of the vehicle while she was driving.

As a result, the vehicle struck a tree with severe impact. Jacob W. Battle, the owner of the vehicle, negligently and/or recklessly entrusted his vehicle to Mary Catherine Pearce while acting within the line and scope of his employment with defendant. Amer A. Kharofa was a passenger in the vehicle.

13. As a direct and proximate result of Mary Catherine Pearce's negligence and/or recklessness and Jacob W. Battle's negligence and/or recklessness, Amer A. Kharofa perished.

Doc. no. 1 (Complaint), at ECF 3-4.² The case now is before the court on defendant's renewed motion to dismiss or, in the alternative, for summary judgment.³ Following consideration of that motion, the parties' briefs, evidentiary submissions, and oral arguments of counsel, the court concludes that the motion should be granted.

I. STANDARD OF REVIEW

Defendant's motion calls into question the extent to which the Federal Tort Claims Act waives the United States' sovereign immunity: an issue of subject matter jurisdiction. Binding precedent instructs that "where — as here — the existence ofsubject matter jurisdiction is inextricably intertwined with material facts affecting the merits of the claim, a district court must be guided by the standard for summary judgment motions under Fed. R. Civ. P. 56." Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-30 (11th Cir. 1990); Green v. Hill, 954 F.2d 694, 697-98 (11th Cir.), withdrawn and superseded in part on reh'g, 968 F.2d 1098 (1992); Eaton v. Dorchester Development, Inc., 692 F.2d 727, 734 (11th Cir. 1982)).

Rule 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is 'only a guess or apossibility,' for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

II. SUMMARY OF FACTS

On the date of the events giving rise to this action, plaintiff's son, Amer A. Kharofa ("Amer"), was a 22-year-old rising senior at the University of Alabama in Birmingham ("UAB"). He was enrolled in that school's Reserve Officers' Training Corps ("ROTC") as a "Cadet in training" to become a commissioned officer following graduation, and serving either on active duty in the United States Army, orin a Reserve Component (i.e., Army Reserve or Army National Guard).⁴

Toward the end of the first week of June 2011, Amer traveled to the National Guard Armory located at 185 Walnut Street in Centreville (Bibb County), Alabama, for the purpose of participating in a three-day "drill weekend."⁵ The military exercises began during the early-morning hours of Friday, June 3, and were scheduled to conclude during the evening hours of the following Sunday, June 5, 2011.⁶ The Alabama Army National Guard provided lodging for all soldiers who resided more than 50 miles from the drill site at the "Windwood Inn": a privately-owned hotel located at 2923 Main Street in Brent (Bibb County), Alabama,⁷ about three-tenths (0.3) of a mile from the Centreville National Guard Armory. Sergeant MaryCatherine Pearce and Amer were among the soldiers who received that benefit for the drill weekend.⁸

The soldiers were dismissed from drill at 4:30 p.m. (1630 hours) on the initial day of drill.⁹ After that time, "Soldiers were free to make their own dinner plans wherever they chose."¹⁰ Seven of them — i.e., Mary Catherine Pearce (an E-5 Sergeant), Jacob Wayne Battle (another E-5 Sergeant who outranked Sergeant Pearce), Logan MacKenzie Rackley (an E-4 Specialist), Stephen Trey Selman (another E-4), Christopher Cody Hamner (the third E-4), Amanda Marie Saunders (the fourth E-4), and Amer ("ROTC Cadet in training") — drove from the Centreville Armory to the Windwood Inn in Brent and changed clothes.¹¹ Some of those soldiers, but particularly Sergeants Pearce and Battle, began to consume alcoholic drinks purchased with personal funds. Amer did not join in.¹²

After drinking for several hours, the soldiers named above climbed into Sergeant Battle's pick-up truck, apparently with the intention of driving to a shootingrange located on Lightsey Road:¹³ an unpaved stretch of road in Bibb County, on the edge of the Talladega National Forest,¹⁴ approximately 7.8 miles from the Windwood Inn in Brent. Amer was designated to drive because he had not been drinking.¹⁵ Sergeant Battle sat in the passenger seat, and Sergeant Pearce occupied the space on the truck seat between Amer and Battle. The remaining soldiers piled into the truck bed.¹⁶ The group then drove into the rural area near the Talladega National Forrest.

Amer was not familiar with the rural roads of Bibb County, but Sergeant Pearce was, as a result of having lived nearby at some time in the past. Consequently, she provided verbal directions.¹⁷ Even so, Amer still managed to become lost on the unpaved roads in the forested area, and stopped the truck at some unspecified place. When he did, some of the soldiers climbed out of the truck to relieve themselves in the woods.¹⁸ When they returned, Sergeant Battle determined that they should turnaround and return to the hotel, to "[p]lay it safe."¹⁹ Exactly what occurred next is disputed.

In a handwritten statement given on June 4, 2011, the day after the events leading to this action, Sergeant Battle said that, when the soldiers returned to the truck after relieving themselves, "we decided to turn around and head back. At that time Sgt Peirce [sic] insisted on driving and had pushed Cdt Karafa [sic] out of the truck. So I unbuckled my seatbelt and moved to the middle of the truck. Cdt Karafa [sic] got in the passenger seat. . . ."²⁰ The statement written by Specialist Stephen Trey Selman on the same date was consistent with Battle's: i.e., "Sgt. Pearce then slid him [Amer] out of the driver's seat and he walked around to the other door to get in."²¹

Sergeant Battle's second sworn statement, however, delivered on May 9th of the following year, provided a slightly different account. He said that, when the truck stopped in the woods, Sergeant Pearce unbuckled Amer's seat belt, opened the truckdoor, and directed Amer to "get out," because she knew how to drive them back to the hotel.²²

Battle provided yet another version of events during his July 7, 2016 deposition, when testifying that Amer was one of the individuals who exited the truck to relieve himself. When Amer returned to the truck cab, Sergeant Pearce already had moved into the driver's seat behind the steering wheel.²³

Battle acknowledged during his deposition that it was not wise to allow Pearce to drive his truck, because he knew that she had been drinking, but he told himself that "we'll let her drive for a few minutes and then get her out."²⁴ Amer urged Sergeant Battle to allow him to continue driving, but when Battle responded "I don't know," Amer walked around the truck and sat in the passenger seat.²⁵

In any event, and despite the fact that Mary Catherine Pearce was "very intoxicated," it is undisputed that she assumed control of the truck.²⁶ Battle described what happened next...