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Kharofa v. United States

United States District Court, N.D. Alabama, Northeastern Division

August 8, 2017

AHMAD A. KHAROFA, as personal representative of the Estate of Amer A. Kharofa, deceased Plaintiff,


         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.


         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 of subject 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 a possibility, ' 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”).


         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, or in 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 Mary Catherine 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 shooting range 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 turn around 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 truck door, 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 in the statement delivered the following day:

As we traveled back down the dirt road Sgt Peirce [sic] started gaining too much speed and we tried to get her to slow down. At that time we started around a curve when we ran off the road and started down through the woods. As we side swipped [sic] one tree Cdt Karafa [sic] fell over into my lap and we continued down through the woods untill [sic] we struck another tree coming to a stop. Sgt Peirce [sic] climbed over myself and Cdt Karafa [sic] to get out of the vehicle and start checking on everybody. Sgt Peirce [sic] and Spc Saunders made it to the top of the hill. Spc Selman dialed 911. I was unable to get out of the truck until Fire and Rescue showed up. After I was assisted out of the truck and helped to the top of the hill to get checked out by EMS.

Doc. no. 21-5 (June 4, 2011 Sworn Statement of Jacob Wayne Battle), at ECF 2-3.

         Amer was killed instantly.[27] Specialist Logan Rackley, who had been riding in the truck bed, also died as a result of his injuries.[28]

         The Alabama Army National Guard conducted an investigation to determine whether Amer had died in the “Line of Duty” and, thus, whether his family was entitled to receive financial benefits from the United States.[29] The initial investigatory report concluded that Sergeant Pearce “instructed Cadet Kharofa to pull over and let her drive” because Amer had become lost and she was familiar with the area.[30] The investigator also concluded that Amer had not engaged in any misconduct, and that he was acting within the line of duty when he died.[31]

         Major Gonzalo Pinacho, a Judge Advocate General (JAG) officer, reviewed the initial line of duty determination on October 2, 2012, and concluded that Amer had not engaged in any kind of misconduct that would prevent a line of duty determination. His report stated:

Far from committing misconduct, SGT [sic] Kharofa sought to prevent harm to his fellow soldiers by taking the initiative to drive as the only person that had not had any alcohol on the night of his death. But SGT Pearce frustrated this when she demanded to drive, and then took over as driver. When that happened, SGT [sic] Kharofa no longer had control over the vehicle. Any claim that he should have prevented SGT Pearce from taking the wheel assumes several things[:] (1) that the circumstances were such that SGT [sic] Kharofa had a duty to prevent SGT Pearce from committing the crime of drunk driving; (2) that he knew that SGT Pearce was in fact intoxicated beyond the legal limit; (3) that he had the ability, power or opportunity to prevent SGT Pearce from driving; and (4) that it was foreseeable that SGT Pearce would speed along a dirt country road at night with a pick-up truck bed filled with passengers. There is nothing in the record that would support an affirmative answer to any of these questions, and doing so would be rank speculation.

Doc. no. 23-10 (October 2, 2012 Memorandum Re: Legal Review of Line of Duty Investigation), ¶ 10 (alterations and emphasis supplied to reviewer's incorrect recitation of Cadet Amer Kharofa's rank, footnote omitted).

         Another legal review of the initial line of duty investigation was conducted on October 4, 2012.[32] The reviewing officer noted that, even though Mary Catherine Pearce's drunk driving and resultant loss of control over the vehicle were the primary causes of Amer's death, Amer's conduct must be examined

to determine if his actions may be considered either as a secondary proximate cause attaching willful negligence which would not be in the line of duty due to [his] own misconduct /not due to [his] own misconduct; or if Cadet Kharofa[']s actions are simple negligence which is insufficient/inconsistent for a determination of not in line of duty.

Doc. no. 23-8 (October 4, 2012 Memorandum to the Chief Counsel, National Guard Bureau), at ECF 1 (alterations supplied). The reviewer ...

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