Lead Opinion
¶ 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, S02
¶ 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 walla 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-fee 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”
¶ 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, S02 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 S02 Ghane died], At approximately 1400, [name redacted] entered a room followed by a number of [redacted] members including [name redacted] and S02 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. S02 Ghane’s teammates heard him exclaim, and then saw S02 Ghane fall to the ground.
Opinions
1. S02 Ghane’s death occurred in the line of duty and not due to his own misconduct.
2. The cause of S02 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].
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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.
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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.
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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.
Recommendation
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11.Recommend that no charges be brought against the TRADET safety officers on the scene. The ultimate cause of S02 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 shares a collective responsibility in this case. Therefore, we, as a community, owe the memory of Alex Ghane our best efforts to ensure that such a tragic loss never happens again.
(Emphasis added.)
¶ 7. Mrs. Ghane filed suit against the defendants on January 30, 2009, specifically asserting that there were no allegations of comparative fault against any party not named as a defendant. The defendants’ answer asserted several affirmative defenses, including the comparative negli-
¶ 8. The defendants first moved for summary judgment on the ground that S02 Ghane had signed an unconditional release and hold-harmless agreement prior to training. The plaintiff argued that S02 Ghane was not a student at Mid-South at the time of his death, but rather was there under orders from the military and therefore did not fall within the scope of the release. The trial court denied the defendants’ motion for summary judgment, finding that questions of fact remained as to whether S02 Ghane had released the defendants from “liability for the walls the Defendants claimed could not be penetrated by the ammunition being used by the [SEALS] that day, whether those representations were made, whether the walls were penetrated by said ammunition and [S02 Ghane] killed as a result of the alleged misrepresentations and reckless disregard of the Defendants.”
¶ 9. The defendants moved again for summary judgment on September 23, 2011, arguing that the plaintiffs claims raised a nonjusticiable political question because adjudication of the claim would require the trial court to question military training decisions and strategies. The trial court granted summary judgment to the defendants as to the political question doctrine. Mrs. Ghane appealed.
DISCUSSION
I. THE POLITICAL-QUESTION DOCTRINE
¶ 10. Our standard of review of summary judgment and jurisdictional issues is de novo. Stringer v. Trapp,
¶ 11. The political-question doctrine is a function of the constitutional separation of powers and was famously first articulated by Chief Justice Marshall in Marburg v. Madison,
The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.
“The political question' doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. American Cetacean Soc.,
¶ 12. In Baker v. Carr, the United States Supreme Court provided six independent factors, any of which, if present, indicate the existence of a nonjusticiable political question:
1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2) a lack of judicially discoverable and manageable standards for resolving it; or
3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect duecoordinate branches of government; or
5) an unusual need for unquestionable adherence to a political decision already made; or
6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr,
¶ 13. Private contractors are a significant step removed from the separation-of-powers concerns targeted by the political-question doctrine and the Baker factors. They “do not have independent constitutional authority and are not coordinate branches of government to which we owe deference.” Taylor v. Kellogg, Brown & Root Servs., Inc.,
¶ 14. Here, we find that the defendants have failed to demonstrate that adjudication of thé ballistic wall’s failure would implicate a political question. On the facts before us, this case does not require reexamination of decisions made by the military and can be tried under the “judicially discoverable and manageable standards” of well-established state tort law.
¶ 15. The question of causation comes down to the design, construction, and maintenance of a ballistic wall at a rented training facility — conditions which were in place before the military took “operational control” of the facility. Before the training exercise occurred, Mid-South independently had designed, constructed, and tested the shoothouse walls, representing them to be capable of -withstanding the ammunition used and the training tactics employed. The Navy investigation found:
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.
¶ 16. In McMahon v. Presidential Airways, Inc.,
3. ... 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].
(Emphasis added.)
¶ 17. This case is distinguishable from Aktepe v. United States,
¶ 18. This same logic distinguishes this case from several recent circuit cases Mid-South cites for the proposition that military operational control over contractors implicates a political question. “Military control over a contractor’s actions is one common way that evaluation of military decisions becomes necessary.” Harris v. Kellogg, Brown & Root Servs., Inc.,
¶ 19. A district court in Pennsylvania recently concluded that “[adjudicating whether [defendant contractors] were required to warn of the dangers of asbestos in connection with the supply of propulsion turbines to the Navy for use in Navy
Defendants contend that the court will necessarily have to rule on the prudence of the Navy’s use of asbestos ... [but] [plaintiff’s claims do not challenge the Navy’s wisdom in deciding to use asbestos, nor do they seek to second guess the Navy’s judgment as to the wisdom or propriety of its warning policy. Moreover, if successful, the claims will not make the Navy liable for any injury .... To be sure, a judicial inquiry into what Navy policy was ... at the time Plaintiff served on a Navy vessel may be required. Yet, this inquiry does not implicate the wisdom and soundness of the Navy’s policies or procedures. The issue here is what the policy was with respect to warnings, not what it might (or should) have been ....
Donn v. A.W. Chesterton Co., Inc.,
These cases .... traverse a common thread different from this case. They require the courts to second guess military operational judgment, whether that be the speed and timing by which to send a military convoy through Iraq, or the wisdom of the military’s procedures for electrical repairs .... Indeed, adjudicating the claims in Carmichael and Taylor would require the Court to determine in hindsight whether the military policy was correct .... Thus, those cases present the type of claims the political question doctrine seeks to preclude from judicial review — claims that require courts to determine the wisdom of military policy.
Id. at 817-18 (emphasis added). Mrs. Ghane does not ask the trial court to question the wisdom of the training tactics used by the military on the day S02 Ghane died. Rather, the focus of this case is on the “defendants’ performance of its contractual obligations to the government ... rather than the advisability of any governmental policy-related decision.” Bixby v. KBR, Inc.,
¶ 20. The defendants also fail to demonstrate that they will put forward a viable contributory negligence defense. Mississippi tort law allows for determination of percentage of fault in civil cases.
[The defendant] states that it will defend itself in a manner that will drag the Court into exacting evaluations of theArmy’s policies and the actions of its soldiers.... That argument is too broad; it would give defendants too much power to define the issues. Indeed, it would bar virtually any claim in which the contractor posited that the military, not itself, was at fault. In the great majority of cases dismissing claims on political question grounds, the allegedly faulty exercise of military judgment was the basis of the complaint, not of a hypothetical defense. [The plaintiff] does not challenge any order he was given, or indeed anything that occurred in Afghanistan. His allegation of a manufacturing defect could stand alone without implicating any decision committed to the discretion of the military.
Id. (emphasis added).
¶ 21. Sufficient evidence has been presented to allow this wrongful death action to proceed based on the allegation that the bullet penetrated the shoothouse wall because the wall’s design, construction, and maintenance was other than what it was represented to be by the defendant — ballistic — without contributory negligence by the Navy. Mid-South was acting independent of military control when it responded to the SEALS’ informal request for a more realistic ballistic wall by designing a wall “ad hoc,” without consulting an engineer or following any established specifications, military or otherwise.
¶ 22. Mid-South’s liability for the defective wall would not be lessened by the Navy’s conclusion that different Navy oversight policies could have prevented this tragedy. The “collective responsibility” assumed by the Navy does not translate into apportioned tort liability. That “admission” addresses additional safety policies beyond and distinct from Mid-South’s liability for failing to provide a facility that performed as represented to the Navy. On the record before us, adjudication of the claim under state tort law will not implicate a political question. We therefore reverse the trial court’s grant of summary to the defendants.
II. THE RELEASE S02 GHANE SIGNED DID NOT RELIEVE MID-SOUTH FROM LIABILITY.
¶ 23. We affirm the trial court’s denial of the defendant’s first motion for summary judgment arguing that S02 Ghane signed a release prior to training exculpating defendants from liability. Mississippi law “does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence although, with some exceptions, they are enforceable.” Tumbough v. Ladner,
Assuming [the student] was aware of the inherent risks in scuba diving, it does not reasonably follow that he, a student, intended to waive his right to recover from [the instructor] for failing to follow ... basic industry safety standards.
We found that the student “did not knowingly waive his right to seek recovery for injuries caused by the instructor’s failure to follow basic safety guidelines that should be common knowledge to any instructor of novice students.” Id. at 470. We further found that “contracts attempting to limit the liabilities of one of the parties would not ‘be enforced unless the limitation is fairly and honestly negotiated and understood by both parties’ ” and that, because the contract was preprinted and not negotiated, the terms should be “strictly construed against the party seeking to enforce such a provision.” Id. (citations omitted).
¶ 24. We find that the trial court correctly denied the defendants’ motion for summary judgment at this stage. The release S02 Ghane signed was a preprint-ed, general release. As in Tumbough, it is not reasonable that S02 Ghane, an experienced Navy SEAL, intended to release the defendants from following even basic safety standards in the design of the ballistic wall or the failure of the wall to perform as advertised. We further find merit to the plaintiffs argument that S02 Ghane does not fall within the scope of the release because he was not a “student” being taught or instructed by Mid-South at the time of his death, as he was under orders from the military to train at the facility.
CONCLUSION
¶ 25. The political-question doctrine rarely operates to bar a plaintiffs claim and does not operate to do so here. On the facts before us, the defendants have not met their burden to show that Mrs. Ghane’s wrongful death claim is inextricable from the formulations established by the Baker factors and cannot be adjudicated without impheating a political question. We therefore reverse the trial court’s grant of summary judgment as pertains to the political-question doctrine. We affirm the trial court’s denial of summary judgment as to the liability waiver.
¶ 26. AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Notes
.Special Warfare Operator (Second Class). "In May 2006 the U.S. Navy authorized the establishment of the Special Warfare Operator (SO) general rating to allow Enlisted Sailors to focus on rating-specific technology, skill sets, and training systems .... As of October 1, 2006, the Enlisted SEAL Warfare Designation (NSW Rating) became "Special Warfare Operator” (SO), representing its own specialized navy career path.” http:// navyseals.com/nsw/learn-about-the-us-navy-seals/ (last visited January 3, 2014).
. Bullet-proof.
. "Green-tip” bullets contain a tungsten core designed to penetrate farther than a standard bullet. The 5.56mm military designation is comparable to a .223 caliber bullet.
. We note that the court found no political question implicated on the record before it, and left open the possibility that further development of the case might implicate a political question. Presidential Airways, Inc.,
. See Miss.Code Ann. § 85-5-7 (Rev.2011); Miss.Code Ann. § 11-7-15 (Rev.2004); Fielder v. Magnolia Beverage Co.,
. See Harris v. Kellogg, Brown & Root Servs., Inc.,
. This distinguishes this case from Boyle v. United Technologies,
. The defense's argument may be analogized to a mother saying that, if she had not asked her son to go to the store, he would not have been killed by a drunk driver.
Concurrence Opinion
concurring in part and in result:
¶ 27. My disagreement with the majority is minor. I agree that the trial court properly denied summary judgment as to liability. And I agree that we should reverse the trial court’s grant of summary judgment on the political-question doctrine, but not because it does not apply in this case. We do not know whether it does. The Navy has neither raised it nor intervened in this case to assert it.
¶ 28. The defendant, Mid-South, attempts to raise it on behalf of the Navy, claiming the doctrine will somehow pre
Dissenting Opinion
dissenting:
¶29. I agree with the majority that Plaintiffs liability theories are based on simple negligence by Mid-South in the construction of the ballistic wall. And I agree that the resolution of that issue would not require an evaluation of military decisions. But, although Plaintiff does not challenge military decisions, Mid-South has raised defenses concerning proximate causation and comparative negligence that will require the fact-finder to evaluate decisions and training strategies of the military, thus presenting a nonjusticiable issue. Questions of justiciability must be resolved before one reaches the merits of the case. The issue we must decide is whether Defendants have presented enough evidence to present a jury question as to whether the military decisions contributed to S02 Ghane’s death.
¶ 30. I include some additional facts that I believe are helpful to understanding this case. Although the Navy had regulations covering the design of ballistic walls at the time the current walls were designed and constructed, the SEALS never instructed Mid-South on how it should construct the walls, nor did they inform Mid-South of any standards the walls should meet. When the SEALS trained at Mid-South, they were under the control of their training cadre, and the Mid-South instructors had no oversight, except for shooting and weapons-handling instructions at the outdoor ranges. The SEALS brought their own equipment, weapons, and ammunition. They also had their own armorer to repair weapons and select ammunition. Navy range safety officers (RSOs) oversaw the close-quarter combat (CQC) training, determined target placement, and controlled the manner in which the SEALS entered the shoothouses. Sanders testified that the RSOs were required to inspect the shoothouses every day and determine that the conditions were safe for the SEALS to train.
¶ 31. In January 2008, SEALS Team 5, including S02 Ghane, traveled to Mid-South to conduct a training cycle. During the January 2008 training cycle, the SEALS armorer selected 5.56 mm “green-tip” rounds to be used for training exercises instead of less powerful “black-tip” or “blue tip” rounds normally used for training. On January 30, 2008, the SEALS were training in the shoothouses, practicing room-clearing. The RSO placed a hostile target on one side of an interior ballistic wall, while the SEALS were “stacked” on the other side.of the wall. This resulted in the SEALS who had moved around the wall shooting back at a target on the wall directly in front of the SEALS waiting to enter the room. According to Shaw, this was not standard Navy practice, and a Navy Master Chief expressly had instructed the RSO a few days before January 30 not to put any SEALS behind walls that were being shot at.
¶ 32. The Investigating Officer also included the following conclusion and recommendation in his report summary:
Recommend that no charges be brought against the TRADET safety officers on the scene. The ultimate cause of S02 Ghane’s tragic death stems from defective walls that were not ballistic as advertised and paid for in this case. Whilemultiple factors, including the weather, ammunition, and tactics may have played a role, Navy 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 systemic 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 80, 2008. As such, the Naval Special Warfare shares a collective responsibility in this case.
(Emphasis added.)
¶ 33. The commanding officer of NSWC, G.J. Bonelli, transmitted the report via letter dated June 26, 2008, to the Commander, Naval Special Warfare Group One. In that letter, Bonelli endorsed and approved the report, subject to certain comments. Bonelli’s comments included the following:
a. An unfortunate combination of events, to include the misplaced reliance on the integrity of what was thought to be a ballistic wall, the practice of [redacted] and the use of [redacted] ammunition were variables in this fatal mishap. The exercise of stronger Operational Risk Management (ORM) procedures may have identified a weakness in the risk mitigation that could have been further addressed on the spot on the date of the mishap.
b. Recommendation 6 seeks a study of the use of [redacted] ammunition in [redacted] both in training and in combat. My staff and I have looked at this recommendation and I decline to impose an absolute bar on its use. We need to train how we will fight. I accord deference to the combatant commanders in the types of ammunition they believe the war-fighters need in theater. That said, we need to carefully evaluate each and every occasion where we train with the [redacted] ammunition.
(Emphasis added.) In other words, Bonel-li’s recommendation was to allow combatant commanders discretion in choosing which ammunition to train with because the SEALS need to “train how they will fight,” even if some ammunition and/or training tactics are more dangerous than others.
¶ 34. While complaints against government contractors rarely implicate a political question directly, “military decisions that are textually committed to the executive sometimes lie just beneath the surface of the case.”
In these situations, the political question appears not from the plaintiffs complaint, but from the broader context made relevant by a contractor’s defenses. As such, to avoid infringing on other branches’ prerogatives in war-time defense-contractor cases, courts must apply a particularly discriminating inquiry into the facts and legal theories making up the plaintiffs claims as well as the defendant’s defenses.10
¶ 35. The Third Circuit Court of Appeals recently addressed the political-question doctrine in a case involving claims against a government contractor in Harris
¶ 36. In such cases, when “analyzing whether a proposed defense implicates a nonjusticable political question ... courts must first decide whether the defendant has ‘presented sufficient evidence to permit a jury to conclude that he established the [elements of the] defense by a preponderance of the evidence.’ ”
If a jurisdiction uses a proportional-liability system which assigns liability by the degree of fault, then a proximate-cause defense introduces a nonjusticia-ble issue. In such a system, there is simply no way to determine damages without evaluating military decisions. The fact finder cannot decide the respective degrees of fault as between a military contractor like KBR and the military without evaluating the decisions made by each ....15
¶ 37. The Fifth Circuit Court of Appeals also addressed the political-question doctrine in the context of claims against a private government contractor in Lane v. Halliburton,
¶38. The Fifth Circuit explained that “[t]he central issue will be causation. If we must examine the Army’s contribution to causation, ‘political question’ -will loom large.”
¶ 39. In this case, the trial court found that causation would be an issue for each of Plaintiffs causes of action and that the “fact finder will be required to evaluate decisions made by the Navy such as the placement of targets, how the soldiers would conduct their exercises, the ammu
¶ 40. It is well-settled that an accident can have more than one proximate cause.
¶ 41. The issue we must decide in this case is not whether Defendants have proven that military decisions actually did cause or contribute to S02 Ghane’s death; rather, the issue is whether Defendants have presented enough evidence to present a jury question regarding whether military decisions contributed to S02 Ghane’s death. The majority finds that Defendants “have failed to demonstrate that the military’s training tactics — such as S02 Ghane’s position in the shoothouse, the placement of targets, and the choice of ammunition — exceeded the scope of what Mid-South represented its facility could handle. Military policy and training tactics are therefore irrelevant for purposes
¶ 42. In a proportional-liability jurisdiction such as Mississippi, there “is simply no way” for a fact-finder to determine liability and percentages of comparative fault between the Navy and Mid-South without analyzing decisions made by each — specifically, the Navy’s decisions with respect to training tactics, ammunition used, and inspection of training facilities.
. Harris v. Kellogg, Brown & Root Servs., Inc.,
. Id. at 466 (citing Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir.2008)).
. Harris,
. Id. at 467.
. Id. at 469 (citing United States v. Stewart,
. Harris,
. Id. at 474.
. Lane,
. Id. at 565 (citation omitted) (emphasis in original).
. Id. at 561.
. Id. at 566-687, 568.
.Id. at 554, 568.
. On January 28, 2008, Mid-South was notified about a bullet possibly penetrating one of the shoothouse walls. Sanders testified that he and the RSO inspected the wall, but could not find any evidence of penetration. However, out of an abundance of caution, the wall was taken out of service.
. Hill v. Columbus Ice Cream & Creamery Co.,
. See Mladineo v. Schmidt,
.See Miss.Code Ann. § 85-5-7 (Rev.2011); Miss.Code Ann. § 11-7-15 (Rev.2004); Fielder v. Magnolia Beverage Co.,
. Many of the facts related in our opinion come from the Navy’s investigative report and the depositions of Defendants. I note that the facts recited and conclusions reached by the Navy and Defendants have not been stipulated to, and a jury must consider and is free to give whatever weight it deems appropriate to the evidence presented. In re Extension, Enlarging of Boundaries of City of Laurel,
. Harris,