United States Court of Appeals,
Fifth Circuit.
No. 94-41046
Summary Calendar.
Timothy Wayne ROYER, individually and on behalf of his minor
children on Behalf of Reagan Royer on Behalf of Cade Royer, et al.,
Plaintiffs-Appellants,
v.
CITGO PETROLEUM CORP, et al., Defendants,
Jacobs Engineering Group Inc., J E Merit Constructors Inc., and
Robert Green, Defendants-Appellees.
June 1, 1995.
Appeals from the United States District Court for the Western
District of Louisiana.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
DUHÉ, Circuit Judge:
Plaintiff Timothy Wayne Royer appeals the district court's
entry of partial summary judgment in favor of Defendants Jacobs
Engineering Group Inc. and JE Merit Constructors, Inc.
(collectively "Jacobs"). Royer sought recovery against Jacobs
under theories of strict liability and negligence for injuries he
sustained in a fall. We affirm.
BACKGROUND
Citgo Petroleum Corp. (Citgo) hired Jacobs to coordinate and
supervise the expansion of Citgo's Lake Charles refinery. Citgo
hired other contractors to perform specific segments of the
project. One such contractor was BE & K Construction (BE & K), who
employed Royer. On the day of Royer's fall, BE & K was responsible
1
for connecting two completed sections of work. Royer attached
himself to the wheel of a valve and lowered himself to do some
work. BE & K had assembled the valve and welded it to Citgo's
existing pipe work. The valve wheel came off, and Royer fell. The
improper assembly of the valve, rather than any defectiveness of
its individual components, caused the valve unit to be defective.
Royer sued Citgo, Jacobs, and Robert Green, a Jacobs employee.
The district court granted summary judgment to Jacobs and Green and
denied Royer's motion to join Michael McNab, another Jacobs
employee.1 According to the court, Royer's strict liability action
failed because Royer could not establish that Jacobs had custody of
the valve. His negligence action failed because he could not
establish that Jacobs had a legal duty to inspect the valve or
supervise BE & K's work. The court then entered final judgment for
Jacobs and Green under Federal Rule of Civil Procedure 54(b).
Royer appeals.
DISCUSSION
We review a district court's grant of summary judgment de
novo. Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th
Cir.1990). We consider all the facts contained in the summary
judgment record and the inferences to be drawn therefrom in the
light most favorable to the non-moving party. Id.
I. Strict Liability
The district court granted summary judgment on the strict
1
Royer appeals only the district court's grant of summary
judgment in favor of Jacobs.
2
liability claim because Jacobs did not have custody of the valve.
"We are responsible ... for the damage occasioned by ... the things
which we have in our custody." La.Civ.Code.Ann. art. 2317 (West
1979). For Royer to recover from Jacobs in strict liability under
Article 2317, he must prove: (1) the thing injured him; (2) the
thing was in Jacobs's custody; (3) there was an unreasonable risk
of harm in the thing; and (4) his damage arose from that danger.
Ross v. La Coste de Monterville, 502 So.2d 1026, 1028 (La.1987).
The second element requires the defendant's custody of the thing.
The district court determined, as a matter of law, that Jacobs
lacked custody of the valve.
The Louisiana Supreme Court's definition of custody is based
on the French legal concept of garde. Ellison v. Conoco, Inc., 950
F.2d 1196, 1208 (5th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 3003, 125 L.Ed.2d 695 (1993). Garde obligates the proprietor
of a thing, or one who avails himself of it, to prevent it from
damaging others. Id. Under French law, garde of a thing may be
divided between two persons; the guardian of the object's conduct
is presumed responsible for damage caused by its behavior, and the
guardian of the object's structure is responsible for damage caused
by its defects. Ross, 502 So.2d at 1030. Only the guardian of the
object's structure has strict liability under Article 2317. Id. at
1032.
The owner of the thing is the presumed guardian of its
structure. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464
(La.1991). The presumption is rebuttable, however, by showing that
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the owner (1) did not receive a substantial benefit from ownership
nor (2) had any control or authority over the thing. Id. The
district court explained that Citgo, as owner of the valve, had
custody of it for purposes of Article 2317. Royer does not argue
that Citgo lacked custody; rather, he contends that both Jacobs
and Citgo had custody, and that the question of Jacob's custody
should be resolved by a jury.2
Royer fails to show that Jacobs received a substantial
benefit from the valve. We acknowledge that whether a party has
custody of an object is generally an issue for the jury. Doughty,
576 So.2d at 464. Nevertheless, Jacobs derived minimal benefit
from the valve. It was welded into Citgo's pipe work, and Citgo
was the prime beneficiary of the valve. Cf. Spott v. OTIS Elevator
Co., 601 So.2d 1355, 1363 (La.1992) (finding that elevator owner
was the prime beneficiary of the elevator). Because Jacobs does
not receive a substantial benefit from the valve, our decisions
cited by Royer are distinguishable. See Haas v. Atlantic
Richfield, 799 F.2d 1011, 1014 (5th Cir.1986); Dobbs v. Gulf Oil
Co., 759 F.2d 1213, 1218 (5th Cir.1985).
Royer also cannot raise a fact issue that Jacobs had control
of the valve. Royer contends that McNab's full-time physical
2
It is unclear whether custody of an object's structure may
be cumulative between two parties. See King v. Louviere, 543
So.2d 1327, 1331 (La.1989) (declining to address whether an
employee, in addition to the employer, can have custody of his
employer's motor vehicle). We need not consider whether two
parties can have custody of one thing's structure because we
conclude, as a matter of law, that Jacobs lacked custody of the
valve.
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presence at the refinery gave Jacobs control and supervisory
authority over the connecting work. Nonetheless, Royer fails to
contradict summary judgment proof that Jacobs had not yet obtained
control of the valve. McNab inspected the work of other
contractors only after it was complete and tendered to Jacobs. The
connection work to which Royer was assigned was not complete. As
a result, McNab did not inspect it, and Jacobs lacked control over
it. Because Royer cannot show that Jacobs had control over the
valve, we conclude that Jacobs lacked custody of it.3
II. Negligence
On the negligence theory, the district court granted summary
judgment to Jacobs because Royer failed to raise a fact issue that
Jacobs had any legal duty to inspect the valve or supervise BE &
K's work at the time of the accident. We have just concluded that
Jacobs had no custody over the valve because the work in which the
valve was located had not been completed and tendered to Jacobs.
It follows, then, that Jacobs had no legal duty to inspect the
valve. Furthermore, Royer has not produced any evidence that
Jacobs had a duty to supervise work that had not yet been
completed. We agree with the district court that Jacobs owed no
legal duty to Royer concerning the valve.
CONCLUSION
3
When a party, such as Jacobs, does not receive a
substantial benefit from a thing, the party must have complete
control over the thing to have custody. See Spott, 601 So.2d at
1363; Coleman v. OTIS Elevator Co., 582 So.2d 341, 343
(La.Ct.App. 4th Cir.1991). We need not consider whether Jacobs's
control was complete because Jacobs lacked control over the
valve.
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For the foregoing reasons, we AFFIRM the district court's
grant of partial summary judgment in favor of Jacobs.
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