Pickett v. RTS Helicopter, et , 128 F.3d 925 ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-31195.
Margie A. PICKETT; Terry A. Pound; Angenette Mullet; Michael
Brent Pickett, Plaintiffs-Appellants,
v.
RTS HELICOPTER, et al., Defendants,
PETROLEUM HELICOPTERS, INC., Intervenor-Defendant-Appellant,
v.
RTS HELICOPTER LEASING CORPORATION; RTS Capital Services
Incorporated, Defendant Third Party Plaintiffs-Appellees
Appellants,
Pacific Scientific Company, Defendant Third Party Defendant-
Appellee.
Nov. 26, 1997.
Appeal from the United States District Court for the Western
District of Louisiana.
Before WISDOM, JOLLY and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from a products liability action concerning
a helicopter seat belt. It involves interpretations of both the
Louisiana Products Liability Act ("LPLA"), La.Rev.Stat.Ann. §
9:2800.51 et seq. (West 1991), and Louisiana Civil Code Article
2317, La.Civ.Code Ann. art. 2317 (West 1979). Margie A. Pickett,
Terry A. Pound, Angenette Mullet, and Michael Brent Pickett, widow
and children of the helicopter pilot killed by the failure of the
seat belt (the "Picketts"), and Petroleum Helicopters, Inc., his
1
employer ("PHI"), assert that Pacific Scientific Company, the
manufacturer of the seat belt ("PSC"), is liable under the LPLA for
making an unreasonably dangerous product. They argue that the seat
belt was defective because it could be taken apart and reassembled
in a way that made it likely to fail in a crash, and that there was
no adequate warning of this characteristic. The Picketts further
assert that RTS Helicopter Leasing Corporation, the owner of the
helicopter, and RTS Capital Services, Inc., its parent company
(collectively, "RTS"), are strictly liable under Article 2317 as
the owners of an unreasonably dangerous thing. The district court
granted both PSC's and RTS's motions for summary judgment. We
affirm.
I
Drawing all reasonable inferences in the Picketts' favor,1 the
facts are the following. On November 19, 1990, a helicopter owned
by RTS and leased to PHI crashed shortly after takeoff in Cameron,
Louisiana. The pilot, Joseph Pickett, was fatally injured when his
seat belt failed to restrain him and he was flung into the rotor.
Had it operated correctly, the seat belt might well have saved his
life, as the accident was not necessarily fatal.
The crash itself was caused by a PHI mechanic who removed the
wrong control tube from the helicopter during routine maintenance,
resulting in its total loss of cyclic control immediately after
1
In examining the facts on summary judgment review, we draw
"all inferences most favorable to the party opposing the motion."
Exxon Corp. v. Baton Rouge Oil and Chemical Workers Union, 77
F.3d 850, 853 (5th Cir.1996).
2
take-off. During the resulting crash, the seat belt failed because
one of its components, the "take-up bar," had been at some point
removed and reinserted upside down. On this particular belt, the
take-up bar is the part of the cinching mechanism that keeps the
belt tight after adjustment. Because the take-up bar was upside
down at the time of the crash, the load placed on the seat belt was
born by the thin, flat part of the bar, instead of the thick, round
portion. The bar slipped, allowing the seat belt to come undone,
just when it was most needed. This incorrect configuration of the
take-up bar was possible because the bar was asymmetric (i.e., it
had a thin, flat half and a thick, round half) and the seat belt
was capable of disassembly. At the time of manufacture of the seat
belt, there existed both symmetric designs that could not be
incorrectly reassembled in this way, and other designs that could
not be disassembled at all.
The seat belt in question had been originally manufactured in
1971 by PSC. It was not a part of the helicopter's original
equipment, but had been installed as a replacement sometime prior
to 1983. There is no evidence that the take-up bar was upside down
at any time prior to 1983. In May of 1983, the seat belt was
refurbished by Aircraft Belts, Inc. They rewebbed the belt straps,
disassembled and cleaned the metal parts, including the take-up
bar, and then reassembled and relaced the belt. Obviously, the
most likely explanation for the take-up bar's being upside down at
the time of the crash is that the seat belt was reassembled
3
incorrectly by Aircraft Belts.2 There is not, however, any direct
evidence of this. Whether a jury could reasonably infer that this
is what happened is a close question that we need not reach. For
purposes of argument, we will assume that this was the cause of the
take-up bar's incorrect configuration.
PSC was aware that the take-up bar could be positioned upside
down. It issued two written warnings ("Safety Bulletins"), one
dated January 11, 1972, and one dated May 30, 1983, that clearly
described the problem, the potential danger, and the solution with
easy to understand diagrams. There is no dispute that the warnings
would have been effective to avoid the incorrect configuration of
the take-up bar in the hands of someone performing a reassembly of
the seat belt. There is also no dispute that the warnings were in
the possession of Tennessee Gas Pipeline Company ("Tenneco"), the
owner of the helicopter from 1976 to November of 1989, as well as
PHI, the lessee after November of 1989, at all relevant times.
After the accident, the Picketts brought suit against a wide
variety of parties in Louisiana state court, including the
manufacturer of the helicopter, PSC, Aircraft Belts, RTS, and PHI.
The case was removed to federal district court on diversity grounds
pursuant to 28 U.S.C. § 1441. After being dismissed as a
defendant, PHI intervened as a plaintiff to recover what it had
already paid to the Picketts in compensation, should the Picketts'
claims succeed. RTS crossclaimed against PSC. Prior to the
instant motions for summary judgment, all original defendants other
2
Aircraft Belts is no longer a party to this action.
4
than PSC and RTS had been dismissed for one reason or another. The
Picketts and PHI now appeal the summary judgments entered in favor
of PSC and RTS. RTS makes a protective appeal of its crossclaim
against PSC.
II
We review a grant of summary judgment de novo. Once a
properly supported motion for summary judgment has been presented,
the burden shifts to the non-moving party to set forth specific
facts showing that there is a genuine issue for trial. In
examining the facts, we draw "all inferences most favorable to the
party opposing the motion." Exxon Corp. v. Baton Rouge Oil and
Chemical Workers Union, 77 F.3d 850, 853 (5th Cir.1996). We are
also mindful, however, of the underlying standards and burdens of
proof. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct.
2505, 2512, 91 L. Ed. 2d 202 (1986). The pivotal question will
always be whether the non-moving party has produced sufficient
evidence that a reasonable jury could find for him at a trial on
the merits.
III
A
With regard to the Picketts' LPLA claims against PSC, the sole
question before us is whether the seat belt's capability of
disassembly and incorrect reassembly was a proximate cause of Mr.
Pickett's death. Based on our precedent of Graham v. Amoco Oil
Co., 21 F.3d 643 (5th Cir.1994), we conclude that it was not.
In order to establish manufacturer's liability under the
5
LPLA, a claimant must show (1) damage, that (2) was proximately
caused by (3) a characteristic of an unreasonably dangerous product
during (4) a reasonably anticipated use of that product.
La.Rev.Stat.Ann. § 9:2800.54 (West 1991). In order for a product
to be unreasonably dangerous, it must either: (a) be defective in
construction, (b) be defective in design, (c) have an inadequate
warning, or (d) fail to conform to an express warranty. Id.
The Picketts assert claims under both the defective design
and inadequate warning prongs of the LPLA. First, the Picketts
argue that the seat belt was defective in design because it could
be disassembled and incorrectly reassembled in a way that made it
likely to fail in a crash. Under their reasoning, this capability
of misassembly was the characteristic of the seat belt that caused
the death of their husband and father. Because there existed
alternate designs at the time of manufacture that did not have this
characteristic, they conclude that the design in question was
defective. Alternately, the Picketts argue that the seat belt was
unreasonably dangerous because there was no adequate warning of the
capability of misassembly.
Regardless of which theory of liability we consider, under
the LPLA the Picketts must also establish that the actual failure
of the seat belt (and thus Mr. Pickett's death) was proximately
caused by the capability of misassembly. Although not in the LPLA
context, we had occasion to consider the definition of proximate
cause under Louisiana law in our decision of Graham v. Amoco Oil
Co., 21 F.3d 643 (5th Cir.1994). There, we held that proximate
6
cause is " "any cause which, in natural and continuous sequence,
unbroken by any efficient, intervening cause, produces the result
complained of and without which the result would not have
occurred.' " Id. at 648-49 (quoting Sutton v. Duplessis, 584 So. 2d
362, 365 (La.Ct.App.1991)). More specifically, where "an accident
results from two negligent acts, "one more remote and one an
intervening cause, the presence of the intervening cause prevents
a finding of liability on the one responsible for the more remote
cause.' " Id.
Applying Graham, it is clear that the failure of the seat belt
in this case was not proximately caused by the mere capability of
misassembly inherent in its design. Actual failure simply could
not have occurred without actual negligent misassembly, here,
presumably by Aircraft Belts, and this actual misassembly is an
intervening cause that breaks the "natural and continuous sequence"
of events flowing from the design.3 In the Sutton case relied on
in Graham, the court reversed a finding of partial negligence on
the part of a mother whose child was injured after she failed to
pick him up from school as she usually did. Applying the
definition stated above, the Sutton Court found that the child's
3
Although there is no evidence of exactly when, how, or by
whom this misassembly occurred, it is clear that it must have
happened sometime after the design of the seat belt but before
the accident. Greater precision is not required to resolve this
case. Furthermore, given the Safety Bulletins provided by PSC,
it is also clear that the misassembly occurred in direct
contravention of PSC's instructions, and was at best negligent.
We note, however, that under Graham and Sutton the intervening
act need not rise to the level of negligence, so long as it
breaks the "natural and continuous sequence." This is the focus
of our inquiry.
7
eventual injury was proximately caused not by the mother's failure
to pick him up, but by the intervening negligence of the school in
failing to supervise him. The instant case involves a strikingly
similar situation. Although PSC may have established a
prerequisite to the eventual injury by designing a seat belt that
could be misassembled, PSC did not proximately cause that injury
because, as a matter of law, the actual misassembly sufficiently
intervened to break the causal chain. For this reason, the
Picketts' LPLA claims cannot succeed.
B
With regard to the Picketts' strict liability claim against
RTS, the sole question before us is whether there is a material
question of fact as to RTS's custody of the helicopter on the date
of the accident. Based on our precedent of Ellison v. Conoco,
Inc., 950 F.2d 1196 (5th Cir.1992) (Garwood, J.), we conclude that
RTS did not have custody as a matter of law.
(1)
Because this claim turns on a precise understanding of RTS's
relationship to the helicopter, a few additional facts are
relevant. On November 7, 1989, RTS purchased the helicopter from
Tenneco with the intention of leasing it immediately to PHI.
Although the record is not entirely clear about the events
surrounding the transfer of the helicopter, viewed in the light
most favorable to the Picketts they are as follows. On November
15, at PHI's direction, Tenneco delivered the helicopter directly
from its facility in Houston, Texas, to PHI's facility in
8
Lafayette, Louisiana. On hand for the delivery was one Terry
Doehling, an independent contractor working for RTS. Doehling
signed a delivery receipt for Tenneco which provided that RTS had
"caused [the helicopter] to be inspected and reinspected," that RTS
"accept[ed] [the helicopter] as suitable for purchase," and that it
was "delivered to the undersigned on behalf of RTS." Doehling
signed this receipt as RTS's "regional manager." There is no
evidence, however, that Doehling ever himself inspected or even
laid a hand on the helicopter. It is undisputed that he signed the
receipt after simply visually verifying that the helicopter had
arrived.
The lease between RTS and PHI was not signed and did not take
effect until November 27. Under the terms of the lease, PHI had
the sole right and responsibility to determine how the helicopter
was to be used, where it was to be flown, and what maintenance,
inspections, and repairs were to be performed on it. There is no
evidence that this was not, in fact, the arrangement between RTS
and PHI, and no evidence that it was not actually in place as of
November 15, as RTS asserts. In particular, there is no evidence
that RTS had any power to affect any aspect of the helicopter's
usage, direction, or control, including matters of maintenance and
inspection, at any time.
(2)
The Picketts' strict liability claim against RTS is based on
Louisiana Civil Code Article 2317. It provides, in relevant part:
"We are responsible, not only for the damage occasioned by our own
9
act, but for that which is caused by the act of persons for whom we
are answerable, or of the things which we have in our custody."4
In a normal case of statutory construction, where the meaning of a
code provision was plain, our statement of the law might well end
at this point, and we could proceed to an application of the clear
language to the facts at hand. BFP v. Resolution Trust Corp., 511
U.S. 531, 566, 114 S. Ct. 1757, 1775-76, 128 L. Ed. 2d 556 (1994)
(Scalia, J.). Unfortunately, we cannot apply so simple an analysis
to this case. As a matter of Louisiana law, the construction of
Article 2317 has been placed in a peculiar context that has little
to do with a common sense interpretation of the words quoted above.
In Ross v. La Coste de Monterville, 502 So. 2d 1026 (La.1987)
(Dennis, J.), the Louisiana Supreme Court held that an owner who
transfers possession, but not ownership, of a thing to another
party nonetheless retains custody of the thing for purposes of
Article 2317. In Ellison v. Conoco, Inc., 950 F.2d 1196 (5th
Cir.1992), however, we held that the Ross rule did not apply to a
finance entity owner that never had actual possession of the thing.
The Picketts argue that as an owner who transferred
possession, but not ownership, to PHI, RTS continued to have
custody of the helicopter under Ross. RTS counters that, under
Ellison, it never had custody of the helicopter, since it never had
the helicopter in its physical possession. Thus, unlike the
defendant in Ross, it could not have "continu[ed] to have" custody.
4
There is one additional sentence in Article 2317: "This,
however, is to be understood with the following modifications."
10
The Picketts reply in the alternative that there is a dispute in
the record as to whether RTS physically possessed the helicopter
for some brief period of time on November 15, 1989. They contend
that, if the jury found that there was both ownership and
possession on this date, RTS would, as a matter of law, have
acquired custody under Ellison. The district court agreed with RTS
that Ellison controlled and that there was no genuine issue as to
possession. Although we agree with the district court and RTS that
Ellison controls this case, we find the term "possession"
singularly uninformative in the case of corporate entities like
RTS. To clarify what constitutes "possession" for purposes of
Ellison, we must briefly review the tangled history of Article
2317.
(3)
The current Article 2317 is an exact copy of the English text
of Article 2296 of the Code of 1825, which was published in both a
French and an English version. The French text of Article 2296, in
turn, was an almost exact copy of the French text of the first
paragraph of Article 20 of the Code of 1808.5 Like much of the
Code of 1808, the first paragraph of Article 20 was drawn directly
from the Code Napoleon, where its almost identical counterpart was
and is Article 1384(1).6 Under Louisiana law, it is well
established that the French version of the Code of 1825 is
5
The sole difference being the addition of the French
counterpart to the sentence in note 4.
6
Article 1384(1) of the Code Napoleon differs from the first
paragraph of Article 20 of the Code of 1808 only in punctuation.
11
controlling as to articles with a civilian heritage that have not
been changed since that time.7 Ross, 502 So. 2d at 1030 (citing
Sample v. Whitaker, 172 La. 722, 135 So. 38 (1931), and other
cases); Shelp v. National Sur. Corp., 333 F.2d 431, 439 (5th
Cir.1964) (Wisdom, J.).
This rule applies here in the application of Article 2317.
Furthermore, in this case the French version of Article 2296 of the
Code of 1825 differs in one important respect from the English.
Where the English text has "in our custody," the French text uses
the words "sous sa garde."8 As both this court and the Louisiana
Supreme Court have held in the past, the French word garde as used
in Article 2296 is a civilian term of art that incorporates shades
of meaning beyond the literal English translation of "custody."
Ross, 502 So. 2d at 1030; Ellison, 950 F.2d at 1208. Just what it
does mean is a matter of some complexity, however. In particular,
the interrelation between ownership and possession for purposes of
allocating garde is less than clear.
The development of the theory of garde in Louisiana law has
remained closely tied to its civilian heritage.9 In Loescher v.
7
Although Article 2317 had not been changed as of the events
in this case, it now has been.
8
The complete French text of Article 2296 of the Code of
1825 reads: "On est responsable, non seulement du dommage que
l'on cause par son propre fait, mais encore de celui qui est
causé par le fait des personnes dont on doit répondre, ou des
choses que l'on a sous sa garde; ce qui doit s'entendre avec les
modifications suivantes." Apart from the garde issue, this text
accords closely with the English translation quoted above.
9
That Louisiana law has not strayed far from French law in
this respect is due, for the most part, to the relatively recent
12
Parr, 324 So. 2d 441 (La.1975), the Louisiana Supreme Court held
that the owner and possessor of a lot had garde of a tree on the
lot, and was strictly liable for the damage caused when the
otherwise healthy looking tree fell on his neighbor's Cadillac.
Citing a secondhand translation of a French legal dictionary, the
court defined garde as the "[o]bligation imposed by the law on the
proprietor of a thing or of an animal or on the one who avails
"discovery" of Article 2317. See generally Joseph S. Piacun,
Comment, The Abolition of Strict Liability in Louisiana: A
Return to a Fairer Standard or an Impossible Burden for
Plaintiffs?, 43 Loyola L.Rev. 215 (1997). For the entirety of
Article 2296's existence, and the majority of Article 2317's,
their text was not attributed any substantive meaning at all.
Rather, it was thought to be an introduction to the articles
directly following, which created substantive rules of vicarious
liability for damage caused by minors (Article 2297),
incompetents (Article 2298), servants and apprentices (Article
2299), slaves (Article 2300), animals (Article 2301), and ruinous
buildings (Article 2302). The same was largely true in France
with respect to the Code civil's counterpart Article 1384(1),
until 1896. In that year, the Cour de cassation, under pressure
to create a rule of strict liability for industrial accidents,
"discovered" just such a general rule in Article 1384(1). See
Guissez, Cousin et Oriolle v. Teffaine, Cass. civ., June 16,
1896, D.P. 1897.I.433, Saleilles, S.Jur. 1897.I.17, Esmein,
reprinted in English translation with commentary in Arthur Taylor
von Mehren and James Russel Gordley, The Civil Law System 608-11
(2d ed.1977). As this reading became infectious throughout the
Civilian world, the treatment of Article 2317 in the Louisiana
case law became increasingly muddled. See generally Gary E.
Theall, Note, Things in One's Custody—Louisiana Civil Code
Article 2317, 43 Tulane L.Rev. 907 (1969). Some courts retained
the belief that it was introductory, see, e.g., Adams v. Golson,
187 La. 363, 174 So. 876 (1937); Arrington v. Hearin Tank Lines,
80 So. 2d 167 (La.App. 2d Cir.1955), while others treated it as
creating a substantive presumption of liability for damage caused
by some things, see, e.g., Vidrine v. Evangeline Gravel Co., 6
La.App. 468 (1st Cir.1927). It was not until 1975 that the
Louisiana Supreme Court made a definitive ruling (over vigorous
dissent) that Article 2317 established a general rule of strict
liability for things in one's garde with unreasonably dangerous
defects. Loescher v. Parr, 324 So. 2d 441 (La.1975) (Tate, J.,
with Marcus, J., dissenting).
13
himself of it to prevent this thing or this animal from causing
damage to others." 324 So. 2d at 447 n. 6. Although the question
in Loescher allowed the court to skirt the
possession-versus-ownership issue, they noted in dictum that, based
on French legal theory, one could "lose the custody of a thing
without losing its "garde.' " 324 So. 2d at 447 n. 6 (citing Henri,
Leon & Jean Mazeaud, 2 Traité Théoretique et Pratique de la
Responsabilité Civile Délictuelle et Contractuelle No. 1160 at 218-
24 (André Tunc ed., 6th ed.1970)). In Ross, the court picked up
this thread and held that the owner of a step ladder continued to
have garde of the ladder after he had gratuitously lent it to his
tenant. 502 So. 2d at 1032. Ross speaks only of an owner
"continu[ing] to have" garde, however, and does not address the
prerequisites for an owner to acquire garde in the first instance.
This gap did not go unnoticed, and we held in Ellison that where an
owner never had possession of a thing, he did not acquire garde in
the first place. In Ellison, Judge Garwood reasoned that
"[b]ecause [the owner] never possessed, controlled, or operated
[the thing] ..., it follows that [he] was never in a position to
correct defects that might have arisen." 950 F.2d at 1209.
The requirement of past possession announced in Ellison can be
traced to the French sources underlying Ross. Ross relies heavily
on French legal theory, including the Mazeaud treatise cited in
Loescher, and a case from the Cour de cassation, France's highest
appellate tribunal. In Société Commerciale Européenne des
Brasseries "Brasseries de la Meuse" v. Etablissements Boussois-
14
Souchon-Neuvesel et al., Cass. 2e civ., June 5, 1971, 1971
Bull.Civ. II, No. 204, reprinted in English translation with
commentary in Arthur Taylor von Mehren and James Russel Gordley,
The Civil Law System 676-78 (2d ed.1977), the plaintiff was injured
by a defect in a bottle of carbonated lemonade that caused it to
explode. Affirming the trial court, the Cour de cassation held the
bottler liable under Article 1384(1) because it retained the garde
of the bottle after transfer to the plaintiff. Ignoring both
ownership and physical possession, which apparently resided in the
plaintiff at the time of the accident, the court looked instead to
the fact that the bottler retained control over the bottle, which
periodically came back to the bottler for washing, testing, and
refilling (presumably after being turned in for a deposit). Since
the plaintiff had no such control over the bottle, and no practical
opportunity to test the bottle for defects, the court concluded
that the bottler retained the garde.
The result in the Brasseries de la Meuse case is no outlier,
inasmuch as the power of "usage, direction, and control," not
physical possession or bare ownership,10 has always been the
touchstone of garde in French law. 2 Mazeaud No. 1160 at 218-24.
In a closely related situation, the law is clear that if the bare
owner does not have the substantial power of "usage, direction, and
control," he cannot have garde, and it falls on the party that does
have this power: "If the attributes of ownership are divided due
10
"Détention au sens intellectuel " versus "détention <<
lato sensu >>." 2 Mazeaud No. 1160 at 220.
15
to the existence of a property right in a thing other than
ownership, for example a usufruct, the "garde ' attaches in
principle to the one whose right gives him the power of command
with regard to the thing, "the usage, direction and control' of the
thing. Thus, the usufructuary would have the garde, not the bare
owner."11
Based on the Brasseries de la Meuse case and the French
commentators relied on in Ross, it is clear that garde attaches to
the owner of a thing when he acquires the substantial power of
usage, direction, and control of the thing, including the practical
ability to discover defects, and remains with him so long as he has
that power, regardless of who has the physical possession at any
given time.12 In Ross itself, the owner of the step ladder had lent
it out for only a short period of time, and expected it to return
11
Or, in the original: "Si les attributs du droit de
propriété sont divisés, par suite de l'existence sur la chose
d'un droit réel autre que le droit de propriété, usufruit par
exemple, la << garde >> appartient en principe à celui auquel son
droit permet d'avoir le pouvoir de commandement relativement à la
chose, << l'usage, la direction et le contrôle >> de cette chose.
L'usufruitier sera donc gardien, non le nu-propriétaire." 2
Mazeaud No. 1162 at 233.
12
We note in passing that this reading of the theory accords
with much of the post-Ross jurisprudence in Louisiana's lower
courts. See, e.g., Gullatt v. Newell Industries, 29,322 (La.App.
2 Cir. 12/11/96), 688 So. 2d 1191 (owner of title to land that
arguably included a shredder made a fixture thereto did not have
garde of the shredder in part because he had no "access or
maintenance rights to [it]"); Mix v. Krewe of Petronius, 95-1793
(La.App. 4 Cir. 5/22/96), 675 So. 2d 792 (lessee of auditorium did
not have garde of it because "the lease term was for a matter of
hours, not years, lessee had no opportunity to inspect, repaint
or reconfigure the lighting system ... and ... no right of
direction and control."); Thumfart v. Lombard, 613 So. 2d 286
(La.App. 4 Cir.1993) ("[c]ustody, distinct from ownership, refers
to a person's supervision and control (garde) over a thing").
16
to his possession shortly. On an ongoing basis, he had the
substantial power of "usage, direction, and control" of the ladder,
and ample opportunity to examine it for defects, even though he did
not have it in his physical possession at the time of the accident.
The situation was almost identical to that in the Brasseries de la
Meuse case, and the Ross Court was quite correct to conclude that
the owner retained the garde. In Ellison, on the other hand, the
owner was a finance entity that purchased the title to certain oil
drilling equipment and immediately leased it back to the former
owner without disturbing possession. Applying the same theory of
garde, the Ellison Court was also quite correct to conclude that
the finance entity never acquired garde in the first place.
"Because [the finance entity] never possessed, controlled, or
operated [the equipment] ..., it follows that [it] was never in a
position to correct defects that might have arisen." Ellison, 950
F.2d at 1209.
Based on this reading of Ross and Ellison, we hold that, for
purposes of applying Article 2317, Ellison 's "possession" means,
at a minimum, the substantial power of usage, direction, and
control, including the practical ability to discover defects, or
what the French would call "détention au sens intellectuel."13
Physical possession, while relevant, is not a touchstone, and
neither Ellison nor Ross is to the contrary.
(4)
Turning, at long last, to the facts of the instant case, we
13
See note 10.
17
find that there is no material issue of fact as to whether RTS had
garde of the helicopter at any relevant time. The Picketts do not
even allege that RTS ever had any kind of substantial power of
usage, direction, or control of the helicopter, or that RTS was
ever in a position to discover defects through maintenance, and the
evidence is undisputed that this was not the case. Rather, the
evidence is clear that from the moment that Tenneco delivered the
helicopter to PHI's facility in Lafayette (at PHI's direction), the
helicopter was subject to the exclusive power of PHI under the
terms of a long-term lease. Although the presence of Mr. Doehling
at PHI's facility might be read to constitute a brief moment of
physical possession by RTS in some sense, we do not find this
probative of the real question posed by Ellison, namely: Did RTS
ever have the substantial power of usage, direction, and control?
In the end, this case is very similar to Ellison, as RTS was
essentially the same kind of finance entity owner, albeit a
slightly less trusting one in that it sent a representative to
ensure that the financed asset was actually delivered. For these
reasons, we agree with the district court that, as a matter of law,
RTS did not have custody of the helicopter at the time of the
crash, and the Picketts' claim under Article 2317 cannot succeed.
IV
In conclusion, we hold that PSC cannot be held liable under
the LPLA for the failure of its seat belt because this failure was
not proximately caused by any characteristic of the seat belt
itself. We also hold that RTS cannot be held strictly liable under
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Article 2317 because it never had the substantial power of usage,
direction, and control of the helicopter, and thus did not acquire
garde of the helicopter under Louisiana law. The judgment of the
district court is AFFIRMED. Because we affirm the district court,
RTS's protective appeal is DISMISSED AS MOOT.
AFFIRMED.
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