IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
RUSTY ROBERTS, individually and on behalf
of their minor children, Chase & Jarod Roberts; Sandra Roberts
CARDINAL SERVICES, INC.; ET AL.;
CARDINAL SERVICES, INC.; KERR-MCGEE CORPORATION,
successor-in-interest to Oryx Energy Company,
Appeal from the United States District Court
for the Eastern District of Louisiana
October 2, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge
This maritime action was brought in district
court against Defendant-Appellee Cardinal Services, Inc. ("Cardinal") under
the Jones Act,(1) and against Defendant-Appellee
Kerr-McGee Corporation ("Kerr-McGee") as successor-in-interest to Oryx
Energy Company, under the Louisiana Civil Code's provisions governing negligence,(2)
premises liability,(3) and strict liability,(4)
which are incorporated by reference through the Outer Continental Shelf
Lands Act ("OCSLA").(5) Suit was filed by
Plaintiffs-Appellants Rusty Roberts and his wife, Sandra Roberts, individually
and on behalf of their minor children (collectively "Plaintiffs") after
Rusty Roberts, an employee of Cardinal, was injured while working on a
stationary offshore platform owned by Oryx and subsequently acquired by
Kerr-McGee.(6) The Plaintiffs now appeal
the district court's grants of summary judgment dismissing their claims
against Cardinal and Kerr-McGee. We affirm.
I. Facts and Proceedings
Cardinal provides a range of services to the
energy industry in Louisiana and Texas as well as in the Gulf of Mexico
offshore those states. Among the oil and gas well services performed by
Cardinal in those areas are wireline, electric line, plugging and abandoning
("p&a"), cementing, and pumping services, as well as acquisition and
interpretation of oilfield data. Cardinal's offshore services are performed
on both fixed and movable facilities belonging to others as well as on
board its own "liftboats."
Roberts worked for Cardinal in its p&a
department from 1996 until the date of his injury in 1998, first as a p&a
helper and then, following a promotion, as a p&a operator. The Kerr-McGee
platform on which he was injured while helping to perform a p&a operation
is located on the outer Continental Shelf in the Gulf of Mexico, off the
Louisiana coast. He was injured by the accidental firing of a perforation
gun attached to a wireline that was being used on the platform by the crew
of which he was a member in connection with plugging a well. (A "wireline"
is a continuous cable used to perform various subsurface functions in a
well, including the lowering and raising of various tools, instruments,
and other devices. One of the downhole tools used on a wireline is a "perforation
gun," a device that originally used cartridges similar to rifle or pistol
ammunition but evolved to use "shaped charges," cylinder-shaped ammunition
which is cone-shaped internally and fires directionally. It is formed in
layers, one a brittle compound of explosive material and the other a metal
alloy. When fired by any of several methods, this bazooka-like ammunition
shoots a short, concentrated stream of molten alloy or "plasma" in the
direction at which the open end of the charge's conically shaped interior
is aimed. Generally, perforating guns are used either early in the life
of a well to fractionate ("frac") a hydrocarbon-bearing formation or zone
so as to commence or enhance production or, late in the life of a well
or of a particular formation, to perforate casing or tubing in preparation
for "squeezing" or sealing off the well or the zone to "plug and abandon"
On the evening of Roberts's injury, the Cardinal
crew was attempting a p&a job on the platform in question. Cardinal
was responsible for all aspects of the project, Kerr-McGee having reserved
only the right to observe and inspect Cardinal's work to ensure its satisfactory
completion. The Cardinal crew had assembled a perforating gun, with its
shaped charges aimed in a single direction, and had lowered the gun into
the well on a wireline. This particular gun included an exterior sleeve
and was rigged to fire when the pressure around it increased to a predetermined
pounds-per-square inch (psi) level. During its initial descent down the
well, the gun encountered a closed or partially closed downhole valve,
so the crew reversed the downward direction of the wireline, raising it
and the attached perforation gun to the top of the wellbore, close to which
Roberts was standing. A valve in the well tubing below was then opened
by a Cardinal employee, resulting in a sudden increase in pressure in the
wellbore, which presumably caused the gun to fire.(7)
Unfortunately, the shaped charges happened to be aimed in Roberts's direction,
and he was severely injured when they fired.
In their lawsuit, the Plaintiffs asserted
negligence claims against Roberts's employer, Cardinal, under the Jones
Act, advancing that he was a seaman. They brought negligence, premises
liability, and strict liability claims against Kerr-McGee as owner of the
platform, asserting responsibility under Louisiana law as incorporated
by reference in the OCSLA.(8)
Cardinal filed a motion for summary judgment
in which it asserted that Roberts did not have a sufficient temporal connection
to a Cardinal vessel or fleet of vessels to be a Jones Act seaman. Agreeing
with Cardinal as a matter of law, the district court granted summary judgment
and dismissed the Plaintiffs' claims against the employer.
Kerr-McGee also filed a motion for summary
judgment in which it asserted that the Plaintiffs could not prevail on
any of the theories of Louisiana law that they proffered under the OCSLA.
As the Plaintiffs did not oppose Kerr-McGee's summary judgment motion on
the premises liability claims asserted under articles 2317.1 and 2322 of
the Louisiana Civil Code, the court granted Kerr-McGee's motion as to those
claims, and the Plaintiffs do not re-urge them on appeal.
The Plaintiffs conceded that, in its contract
with Cardinal for the performance of the May 1998 p&a operation, Kerr-McGee
had not retained the requisite operational control to support the imposition
of liability for the allegedly negligent acts of its independent contractor,
precluding recovery against Kerr-McGee vicariously for any negligence of
Cardinal. The Plaintiffs therefore grounded their arts. 2315 and 667 negligence
and strict liability claims against Kerr-McGee on allegations that the
use of a wireline perforation gun in the p&a operation on Kerr-McGee's
platform was an "ultrahazardous activity."
The district court granted Kerr-McGee's summary
judgment motion and dismissed these claims after refusing to classify wireline
perforation as ultrahazardous under Louisiana law because it is a common
activity in the oilpatch that can be and indeed generally is performed
safely. Plaintiffs timely filed a notice of appeal.
A. Standard of Review
We review a grant of summary judgment de
novo, applying the same standard as the district court.(9)
A motion for summary judgment is properly granted only if there is no genuine
issue as to any material fact.(10) An issue
is material if its resolution could affect the outcome of the action.(11)
In deciding whether a fact issue has been created, we must view the facts
and the inferences to be drawn therefrom in the light most favorable to
the nonmoving party.(12)
Determination whether an injured worker is
a seaman under the Jones Act is a mixed question of law and fact.(13)
"If reasonable persons, applying the proper legal standard, could differ
as to whether the employee was a 'member of a crew,' it is a question for
the jury. ... Nonetheless, summary judgment or a directed verdict is mandated
where the facts and the law will reasonably support only one conclusion."(14)
Our review of such a mixed question is plenary.
The standard for summary judgment mirrors
that for judgment as a matter of law.(15)
Thus, the court must review all of the evidence in the record, but make
no credibility determinations or weigh any evidence.(16)
In reviewing all the evidence, the court must disregard all evidence favorable
to the moving party that the jury is not required to believe, and should
give credence to the evidence favoring the nonmoving party as well as that
evidence supporting the moving party that is uncontradicted and unimpeached.(17)
B. Seaman Status under the Jones Act
The district court's grant of Cardinal's motion
for summary judgment was grounded in the determination that Roberts was
not a seaman, and thus not eligible to recover under the Jones Act. This
conclusion was based on the court's finding that Roberts did not have the
requisite "substantial connection" to a vessel or an identifiable fleet
of vessels under Cardinal's common ownership or control.
The Jones Act provides that "any seaman" who
sustains personal injury in the course of his employment may maintain an
action for damages at law, with the right of a trial by jury.(18)
The Act does not define "seaman," and "therefore leaves to the courts the
determination of exactly which maritime workers are entitled to admiralty's
special protection."(19) When Congress
enacted the Longshore and Harbor Workers' Compensation Act ("LHWCA")(20)
in 1927, it furnished some content to the term "seaman," albeit indirectly.
The LHWCA provides a remedy for land-based maritime workers who are injured
during their employment, but the Act explicitly excludes from its coverage
"a master or member of a crew of any vessel."(21)
In Chandris, Inc. v. Latsis, the Supreme Court reiterated that "the
Jones Act and the LHWCA are mutually exclusive compensation regimes," and
that the LHWCA's reference to "a master or member of a crew" is "a refinement
of the term 'seaman' in the Jones Act."(22)
Thus, the inquiry into seaman status for Jones Act purposes requires a
determination whether the injured plaintiff is a "master or member of a
crew of any vessel."
In Chandris, the Supreme Court clearly
articulated the test to apply when making this determination:
First,..."an employee's duties must 'contribut[e]
to the function of the vessel or to the accomplishment of its mission.'"...
Second, and most important for our purposes
here, a seaman must have a connection to a vessel in navigation (or to
an identifiable group of such vessels) that is substantial in terms of
both its duration and its nature.(23)
The purpose of the test stated by the court
in Chandris and reaffirmed in Harbor Tug & Barge Company
v. Papai(24) is to separate the sea-based
maritime employees who are entitled to Jones Act protection from those
land-based workers who have only a transitory or sporadic connection to
a vessel in navigation, and therefore whose employment does not regularly
expose them to the perils of the sea.(25)
With respect to the inquiry into whether the
injured worker's connection to a vessel is substantial in terms of both
duration (the temporal prong) and nature (the functional prong), the Chandris
Court emphasized that the test is conjunctive, stating that "we think it
is important that a seaman's connection to a vessel in fact be substantial
both respects."(26) The Chandris
Court further clarified the application of the temporal prong of the test
when it offered the following guidance for determining whether a plaintiff's
connection to a vessel is substantial in duration:
Generally, the Fifth Circuit seems to have
identified an appropriate rule of thumb for the ordinary case: A worker
who spends less than about 30 percent of his time in the service of a vessel
in navigation should not qualify as a seaman under the Jones Act. This
figure of course serves as no more than a guideline established by years
of experience, and departure from it will certainly be justified in appropriate
cases.... Nevertheless, we believe that courts, employers, and maritime
workers can all benefit from reference to these general principles. And
where undisputed facts reveal that a maritime worker has a clearly inadequate
temporal connection to vessels in navigation, the court may take the question
from the jury by granting summary judgment or a directed verdict.(27)
Synthesizing these refinements leads to the
understanding that the plaintiff who fails to show that his connection
to a vessel in navigation is substantial in duration will be precluded
from recovering as a seaman under the Jones Act, and that, as a general
rule, he must show this by demonstrating that 30 percent or more of his
time is spent in service of that vessel.
The 30 percent floor does not change when
an "identifiable group" of vessels in navigation is at issue, rather than
just one vessel. In addressing the case before us in St. Romain v. Industrial
Fabrication and Repair Service, Inc.,(28)
we summarized our ruling in Hufnagel v. Omega Service Industries, Inc.(29)
We held that Hufnagel did not qualify as a
seaman because he could not establish a substantial connection to either
a single vessel or to an identifiable fleet of vessels....Our decisions
after Bertrand have reaffirmed the essential principle that to qualify
as a seaman an employee must establish an attachment to a vessel or
to an identifiable fleet of vessels.(30)
We have left no doubt that the 30 percent
threshold for determining substantial temporal connection must be applied,
regardless of whether one vessel or several are at issue.
Finally, the Court has constructed the framework
for determining the presence of "an identifiable group of vessels." In
reviewing the development of the substantial connection requirement, the
Court discussed our modification of the test for seaman status when more
than a single vessel is involved:
Soon after Robison, the Fifth Circuit
modified the test to allow seaman status for those workers who had the
requisite connection with an "identifiable fleet" of vessels, a finite
group of vessels under common ownership or control.(31)
Subsequently, in Papai, the Court expounded
further on this point:
We...adverted to the group of vessels concept
in Chandris. We described it as a rule "allow[ing] seaman status
for those workers who had the requisite connection with an 'identifiable
fleet' of vessels, a finite group of vessels under common ownership or
In deciding whether there is an identifiable
group of vessels of relevance for a Jones Act seaman-status determination,
question is whether the vessels are subject to common ownership or control.(32)
For purposes of the Plaintiffs' Jones Act
claims against Cardinal, the issue of seaman status turns on whether Roberts
satisfied the temporal prong of the substantial connection test. The Plaintiffs
insist that the district court erred in its application of the 30 percent
guideline when it counted only the time that Roberts spent on Cardinal's
liftboats and disregarded the time that he spent on other Cardinal vessels
and on vessels owned by third parties. According to a breakdown of Roberts's
work time, he spent 21.45 percent of his time in a shop on land, 37.24
percent of his time performing p&a work on platforms with no vessel
involvement, 13.54 percent of his time performing p&a work on platforms
with third-party vessels alongside, 24.88 percent of his time performing
p&a work on platforms with a Cardinal liftboat alongside, 1.99 percent
of his time in transit on Cardinal vessels, and .9 percent of his time
performing p&a work on the CARDINAL 1, a Cardinal-owned vessel. The
district court stated that "Roberts only spent 24.88% of his time assigned
to Cardinal boats."
Roberts contends that his time in transit
and his time on the CARDINAL 1 should be included, and, more significantly,
that the time he spent on platforms with an adjacent third-party vessel
should be included as well. If only Roberts's transit time and CARDINAL
1 time were to be added, he would still fall short of the 30 percent threshold,
aggregating a total of but 27.77 percent; only if his third-party vessel
time were counted would his total time on board vessels "of common ownership
or control" rise above 30 percent, to 41.31 percent.(33)
The Plaintiffs contend that the work time
involving third-party vessels should be counted. They declare that the
"temporal connection establishing a 30 percent rule of thumb is meant to
determine whether an employee is sea-based versus land-based. It is not
meant to be applied to the fleet requirement." It is generally true, as
we noted above, that the fundamental purpose of the seaman-status inquiry
is to separate the sea-based maritime employees who are entitled to Jones
Act protection from the land-based employees who must find a remedy under
the LHWCA. The Plaintiffs are flatly wrong, however, when they assert that
the 30 percent guideline is not meant to be applied to the fleet requirement.
Indeed, application of the 30 percent test is the very means by which a
substantial temporal connection is determined, regardless whether a single
vessel or a group of vessels is at issue. And, when a group of vessels
is at issue, a worker who aspires to seaman status must show that at least
30 percent of his time was spent on vessels, every one of which was under
his defendant-employer's common ownership or control. As recently as Hufnagel,
we reaffirmed our commitment to this application of the 30 percent test,
and we do so yet again today.(34)
We acknowledge Chandris's insistence
that "[the 30 percent threshold] serves as no more than a guideline established
by years of experience, and departure from it will certainly be justified
in appropriate cases."(35) We recognize
as well that if all of Roberts's time aboard Cardinal-owned vessels were
to be counted, he would come quite close (27.7 percent) to meeting the
30 percent requirement. Nevertheless, we do not perceive the instant case
to be one that justifies an exceptional departure from the 30 percent test.
In Wisner v. Professional Divers of New Orleans,(36)
the Louisiana Supreme Court relied on our language in Bertrand v. International
Mooring & Marine, Inc.(37) and
v. Oceaneering International(38) to
reverse a grant of summary judgment against a commercial diver. The
court classified the diver as a seaman, despite the fact that he did not
have a substantial connection to a fleet under common ownership or control,
because the diver "faced regular exposure to the perils of the sea."(39)
Specifically, the Wisner court concluded,
In sum, the formulations or "tests" employed
by the various courts are simply different ways to arrive at the same basic
point: the Jones Act remedy is reserved for sea-based maritime employees
whose work regularly exposes them to "the special hazards and disadvantages
to which they who go to sea in ships are subjected."(40)
We consider the subsequent treatment by a
Louisiana Court of Appeal, curtailing the Wisner opinion, to be
apt. In the post-Wisner case of Little v. Amoco Production Company,(41)
the state appellate court noted first that the United States Supreme Court's
interpretations are controlling in matters of federal law, clearly indicating
that, in any disagreement between the application in Wisner and
the test adopted in Chandris and
Papai, the test enunciated
in the latter controls.(42) More substantively,
the court of appeal posited that Wisner could be classified as falling
within a "well-established exception" to the general 30 percent substantial
connection requirement.(43) The exception,
as defined by language in our pre-Chandris decision in Bertrand,
would be that "Jones Act coverage should not be withheld because the vessels
are not under the employer's common ownership or control, when claimants
are continuously subjected to the perils of the sea and engaged in classical
seaman's work."(44) The court of appeal
in Little, still highlighting the
Wisner court's reliance
on our language, noted that "[a] diver's work necessarily involves exposure
to numerous marine perils, and is inherently maritime because it cannot
be done on land. It is not, like so many offshore field occupations,
an art developed in land work and transposed to a maritime setting."(45)
In St. Romain v. Industrial Fabrication
and Repair Service, Inc., we refused to classify a p&a worker like
Roberts as a seaman when he failed to establish that he had a substantial
connection to an identifiable fleet of vessels.(46)
This holding alone is conclusive; but if any doubt remained because Roberts's
time aboard Cardinal vessels comes close to the 30 percent threshold, the
court's reconciliation of Wisner with United States Supreme Court
precedent extinguished that doubt as well.
Even though a professional diver is peculiarly
---- and totally ---- subject to the perils of the sea and thus may, under
special circumstances, qualify as a seaman without showing the requisite
degree of temporal connection, a p&a crewman, who practices "an art
developed in land work and transposed to a maritime setting," cannot. The
Plaintiffs have failed to demonstrate the presence of all elements of the
conjunctive test for Roberts's seaman status, and their attempt to bring
him within a possible exception to the rule fails. Accordingly, we see
no reason to depart from our well-established rule, as reaffirmed in Hufnagel
and St. Romain, that a worker who fails to show that at least 30
percent of his time is spent on vessels under the common ownership or control
of his employer is precluded from recovering as a seaman under the Jones
Act. We therefore affirm the district court's grant of summary judgment
in favor of Cardinal.
C. Use of Wireline Perforation Gun an Ultrahazardous
Activity under Louisiana Law.
The Plaintiffs appeal the district court's
grant of summary judgment in favor of Kerr-McGee, dismissing their claims
for vicarious and strict liability under Louisiana Civil Code arts. 2315
and 667. They assert that the district court erred when it determined that
Kerr-McGee's independent contractor, Cardinal, was not engaged in an ultrahazardous
activity while using the perforating gun in conducting the p&a job
for Kerr-McGee. The Plaintiffs focus particularly on the district court's
refusal to include wireline perforation within the ultrahazardous category
of "blasting with explosives." Agreeing that wireline perforation is not
congruent with "blasting with explosives" as that term is used in art.
667, and being convinced that wireline perforation does not satisfy Louisiana's
broader jurisprudential test for ultrahazardous activities, we affirm the
district court's grant of Kerr-McGee's summary judgment dismissing the
Plaintiffs' claims under arts. 2315 and 667.
1. The Article 2315 Claim.
Before we proceed to analyze the Plaintiffs'
negligence and vicarious liability claims against Kerr-McGee, an abbreviated
review of the application of Louisiana's basic tort provision, art. 2315,
appears to be in order. That article states that "[e]very act whatever
of man that causes damage to another obliges him by whose
it happened to repair it."(47) Classically,
a tort in Louisiana comprises art. 2315's four indispensable elements:
act, damage, cause, and fault. The Louisiana Supreme Court observed in
Langlois v. Allied Chemical Corp.(48)
that "[f]ault is the key word in art. 2315."(49)
In construing "fault" in art. 2315, Langlois further explained,
the courts "[go] to the many other articles in our Code as well as statutes
and other laws which deal with the responsibility of certain persons, the
responsibility in certain relationships, and the responsibility which arises
due to certain types of activities."(50)
In particular, noted the Langlois court, there is "sound jurisprudential
authority that liability for dangerous and hazardous activities of man
flows from Civil Code Article 2315 by analogy with other Civil Code Articles."(51)
In our review of Louisiana law in Perkins
v. F. I. E. Corp.,(52) we took cognizance
of the Louisiana courts' adherence to the structure established in Langlois,
most notably, for purposes of the instant case, the imposition of liability
for ultrahazardous activities under art. 2315 by analogy to art. 667.(53)
As we also noted in Perkins, however, the Louisiana Supreme Court,
in Kent v. Gulf States Utilities Co.,(54)
later seemed to "cast liability for ultrahazardous activities directly
upon art. 2315 alone, without relying, either directly or by analogy, on
any other codal [sic] article."(55) Referred
to as absolute liability, or liability without fault, this concept is perhaps
more easily understood when viewed as "legal fault" or fault supplied by
law. Thus, art. 2315's fault element is imputed, i.e., supplied
by law, when designated persons elect to engage in particularly high-risk
activities, even though they perform them lawfully, skillfully, and free
of negligent or intentional fault in the usual sense.(56)
To date, the jurisprudential list of such
activities includes only aerial crop dusting, storing hazardous materials,
pile driving, and blasting with explosives.
b. Activities Ultrahazardous De Jure
Within this framework, the Plaintiffs' claims
against Kerr-McGee must be analyzed against the backdrop of vicarious tort
liability under Louisiana law. A well-established general rule under Louisiana
law is that a principal is not liable for the delictual or quasi-delictual
offenses (torts) committed by an agent who is an independent contractor
in the course of performing its contractual duties.(57)
There are, however, two equally well-established exceptions to this rule:
A principal may be liable (1) if it maintains operational control over
the activity in question, or (2) if, even absent such control, the activity
engaged in by the independent contractor is "ultrahazardous."(58)
Given the Plaintiffs' concession that Kerr-McGee did not retain the requisite
operational control over Cardinal, Kerr-McGee could only be held liable
in tort for damages caused to the Plaintiffs when Cardinal's wireline perforating
gun discharged accidentally if that independent contractor's use of the
device constituted an ultrahazardous activity and produced the injury.
Thus, the dispositive question here is whether Cardinal's use of the wireline
perforation gun in the p&a activity that it was performing for Kerr-McGee,
being the activity that inflicted injury on Roberts, was ultrahazardous.(59)
Under Louisiana law, an activity may be ultrahazardous
either as a matter of law or by classification under the test that has
been created judicially. Again, activities that have been categorized in
Louisiana as ultrahazardous as a matter of law are (1) storage of toxic
gas, (2) crop dusting with airplanes, (3) pile driving, and (4) blasting
with explosives.(60) As the Louisiana Supreme
Court observed in Kent v. Gulf States Utilities, each of these four
undertakings is an activity that "can cause injury to others, even when
conducted with the greatest prudence and care."(61)
This concept is embodied in the jurisprudential
test for ultrahazardous activities that we outlined in Perkins v. F.
I. E. Corp.(62) Under the Perkins
test, an activity is ultrahazardous if it (1) relates to land or to other
immovables; (2) causes the injury, and the defendant was directly engaged
in the injury-producing activity; and (3) does not require the substandard
conduct of a third party to cause injury.(63)
The Plaintiffs insist that wireline perforation
is a manifestation of "blasting with explosives," and should therefore
be classified as an ultrahazardous activity as a matter of law. We disagree.
In Fontenot v. Magnolia Petroleum Co.,(64)
the case that decreed "blasting with explosives" to be an ultrahazardous
activity, the Louisiana Supreme Court reversed a judgment in favor of defendants
whose geophysical exploration activities on the property of one owner caused
damage to the plaintiffs' homes on adjoining land. The geophysical operations
involved the intentional detonation of 10-pound charges of Nitramon "S"
at a depth of approximately 70 feet below the surface, and the damage to
the plaintiffs' homes (including cracks in walls and ceilings, and broken
cement foundations) was alleged to have resulted from the "vibrations and
concussions radiating in the soil from the point of the explosions conducted
by defendants."(65) The Fontenot
It has been universally recognized that when,
as here, the defendant, though without fault, is engaged in a lawful business,
conducted according to modern and approved methods and with reasonable
care, by such activities causes risk or peril to others, the doctrine of
absolute liability is clearly applicable.(66)
Stated differently, even though the blasting
may have been conducted responsibly and according to the latest accepted
methods, the defendants were nonetheless accountable for any
damage that flowed from the activity.
Subsequently, in Schexnayder v. Bunge Corp.,(67)
we characterized Fontenot as involving "purposeful subterranean
explosions in connection with oil exploration," and approved the trial
court's jury instruction on ultrahazardous activities, which stated that
"[a]n ultra-hazardous activity is an activity which [sic], even when conducted
with the greatest of care and prudence, could cause a foreseeable harm
or damage to those in the neighborhood."(68)
Thus, for over a quarter-century we have adhered to the Louisiana Supreme
Court's reasoning in Fontenot for classifying the subsurface detonation
of explosives as ultrahazardous: Foreseeably, such an activity could cause
unavoidable collateral damage to neighbors, even if conducted with due
Lowering a perforation gun down a well on
a wireline and firing it to pierce drill pipe or tubing in an oil and gas
well simply does not fit within this rubric. In sharp contrast to the damage
incurred by the neighbors in Fontenot, which was inflicted on structures
located off the owners' premises by the inevitable, omni-directional
underground shock waves produced by the intentional blasting on
the owners' premises, the injuries incurred by Roberts were caused by the
accidental detonation of the shaped-charge ammunition of the perforation
gun, not downhole as intended but at the surface of the owner's premises,
i.e., on the Kerr-McGee fixed platform. As we have noted, a perforation
gun's shaped charges fire only in the direction toward which their open,
conical ends are pointed. When conducted "according to modern and approved
methods and with reasonable care,"(69)
a perforating gun is lowered down a well to a predetermined depth, is fired
in one or more predetermined directions, produces a force sufficient only
to pierce the tubing or casing, and, at most, a matter of but several additional
inches of the adjacent formation. The firing of the shaped charges causes
virtually no incidental damage to the gun or the wellbore, and no collateral
damage whatsoever by way of vibrations, even to the owner's premises, much
less to adjoining property, no matter how proximate.
In the unfortunate occurrence that injured
Roberts, the business end of the shaped charges ---- like the muzzle of
a gun ---- happened to be pointed in his direction at a time when the gun
was at the surface rather than downhole. His severe injuries were a direct,
primary result of the gun's accidental firing, not collateral damage from
shock waves or vibrations. And the unintentional firing of the gun was
caused by an act of man, presumably the opening of the valve, in turn causing
a spike in pressure. We therefore reject the Plaintiffs' contention that
the wireline perforation activity during which Roberts was injured is a
variety of blasting with explosives and thus ultrahazardous as a matter
c. Ultrahazardous De Facto
Wireline perforation also fails to meet at
least one of the three conjunctive prongs of the broader Perkins
test for ultrahazardousness under Louisiana law. The parties agree that
wireline perforation of a well in connection with a p&a operation relates
to land or to other immovables, and we shall assume arguendo that,
through Cardinal, its independent contractor, Kerr-McGee was "directly
engaged" in the wireline perforation activity even though the requisite
control over Cardinal had not been retained by Kerr-McGee.(70)
Thus, we are concerned here only with the third prong of the Perkins
test, whether wireline perforation is an activity that "can cause injury
to others, even when conducted with the greatest prudence and care."(71)
For essentially the same reasons that distinguish the perforation activity
from blasting with explosives, we hold that the former is not a manifestation
of the latter.
First, there is ample evidence in the record
to support the contention that wireline perforation, whether employing
electrically or pressure-activated firing heads to detonate the shaped
charges, can be, and indeed generally is, safely performed thousands of
times a year. There is further evidence suggesting that when the (infrequent)
accident does occur in connection with wireline perforation, it is directly
traceable to human error, either in the initial choice to employ a pressure-activated
device in a particular well, or in the failure correctly to follow safety
procedures. These features of wireline perforation are similar to the transmission
of electricity over power lines which was the challenged activity in Kent.
Regarding that activity, the Kent court stated that "the transmission
of electricity over isolated high tension power lines is an everyday occurrence
in every parish in this state and can be done without a high degree of
risk of injury."(72) The same can be said
with equal certainty of wireline perforation of oil and gas wells. We therefore
conclude that, unlike the stereotypical ultrahazardous activities recognized
by statutes and courts of Louisiana, wireline perforation "is likely to
cause damage only when there is substandard conduct on someone's
part."(73) None can dispute that this declaration
is applicable to the sequence of events that transpired in the instant
accident; it apparently occurred when someone opened the downhole valve,
which increased the pressure, causing the perforation gun to fire while
it was at the surface rather than hundreds of feet down the wellbore, as
This position is consistent with our prior
Ainsworth v. Shell Offshore, Inc.,(74)
we concluded that "drilling operations do not satisfy the third [element
of the Perkins test]," holding that such activities were not ultrahazardous.(75)
As observed by the district court and reiterated above, wireline perforation
is performed frequently in conjunction with both enhancing the flow of
oil and gas in a well and plugging and abandoning particular strata or
entire wells. This comports with the intermediate appellate court's observation
in Bergeron v. Blake Drilling & Workover Co., Inc.(76)
that "[a] well cannot produce oil or gas unless it is perforated. Thus,
perforation is an internal and indispensable element of every well."(77)
Wireline perforation is therefore easily classifiable as a "drilling operation,"
and thus not ultrahazardous under
We distinguish our holding today from the
court's holding which at first blush appears to be to the contrary. In
a Louisiana court of appeal stated, "even if one found that perforating
was not ultrahazardous[,] a finding that perforating is a [sic] inherently
and intrinsically dangerous work is unavoidable."(78)
As the district court in the instant case correctly noted, however, the
court stopped short of classifying wireline perforation as an "ultrahazardous
activity," characterizing it instead as "inherently dangerous," in the
law of Louisiana a distinctly different term of art. Here, the district
By holding Kerr-McGee liable under article
2315 for [an] "inherently dangerous" activity, this Court would be expanding
the Louisiana Supreme Court's policy behind ultrahazardous activity as
announced in [Kent]. In Kent, the Louisiana Supreme Court
held that the ultrahazardous activity classification "was created for the
rare instances in which the activity can cause injury to others, even when
conducted with the greatest prudence and care." This Court does not find
that an "inherently dangerous" activity fits within the "special category"
of ultrahazardous liability.(79)
We adopt this reasoning, adding only the observation
that the perforating gun in Bergeron had a firing head that was
activated by electricity, not by pressure as in the instant case.(80)
In contrast to electrical firing of some perforation guns, only the external
application of sufficient psi of pressure can detonate a pressure-activated
firing head like the one involved in Roberts's injury. Thus, the difference
between an activity that is inherently dangerous and one that is ultrahazardous
serves to distinguish Bergeron from the instant case, and the difference
in the risk of accidental discharge between the firing devices involved
in the two cases distinguishes them even further.
In summary, when we view the operable facts
of the instant case in the light most favorable to the Plaintiffs as non-movants,
we are satisfied that use of a wireline perforation gun in a p&a operation
cannot be held to be an ultrahazardous activity, either de jure
or de facto. Not only is such perforation factually distinguishable
from "blasting with explosives," an actuality that would render such perforation
an ultrahazardous activity as a matter of law were it not distinguishable;
wireline perforation also fails to satisfy the third prong of the Perkins
test, which requires the activity to be one that is likely to cause injury
to others, even when conducted with the greatest prudence and care. This
simply cannot be said of wireline perforation, which is conducted routinely
in oilfield drilling, completing, producing, and plugging operations; and
in which even the extremely infrequent accident is traceable to substandard
The imposition of liability on a principal
for acts of an independent contractor is permitted only in narrow circumstances.
Like the district court before us, we are not willing to increase the range
of circumstances when the courts and legislature of Louisiana have not
seen fit to do so. Our pronouncement in CNG Producing Co. remains
as true today as when it was uttered: "We would not subject this activity
to strict liability without certain directions from the Louisiana courts"(81)
to which we would add, "or the Legislature."
2. The Article 667 Claim
The Plaintiffs do not make altogether clear
whether (1) they assert two completely separate and distinct strict liability
claims against Kerr-McGee, one for vicarious tort liability under art.
2315, and another for ownership liability under art. 667(82);
or (2) they assert but one claim, in which they merely seek to analogize
art. 667's strict liability for blasting with explosives on the premises
with art. 2315's vicarious liability for its independent contractor's wireline
perforation with the gun's shaped charges. As the district court made a
discrete ruling under art. 667, however, we shall address the Plaintiffs'
strict liability charge on the assumption that they asserted such a claim
separately under art. 667. When we do so, we discern two distinct reasons
why the Plaintiffs cannot recover under art. 667, one substantive and the
The substantive reason should by now be obvious:
The foregoing analysis exhaustively demonstrates why downhole wireline
perforation for either completing an oil or gas well or plugging and abandoning
one does not equate with blasting with explosives. That applies with equal
force when that activity is tested under the exclusive list of but two
ultrahazardous activities that are exceptions under art. 667, i.e., blasting
with explosives and pile driving. As wireline perforation is not a manifestation
of blasting with explosives for tort law purposes in Louisiana, that very
same activity cannot logically be ultrahazardous for purposes of art. 667.
Therefore, injury resulting from wireline perforation operations on Kerr-McGee's
premises cannot subject Kerr-McGee, as proprietor, to liability without
fault under art. 667, so the Plaintiffs cannot prevail on their claims
under that article. Thus they have failed to state a cause of action
under that code article.
Second, the Plaintiffs have no right
of action under art. 667; jurisdictionally, they do not have standing to
sue Kerr-McGee as the "proprietor" of the platform which is not only Kerr-McGee's
"estate" but is also the same immovable on which Roberts was working when
he was injured. Roberts was not on adjacent or adjoining property; neither
was he a "neighbor" deprived of the enjoyment of his own estate. Yet art.
667 clearly requires those elements to be present for a plaintiff to have
standing to sue a "proprietor" for damages caused by even an ultrahazardous
activity lawfully conducted on his immovable: The activity on the defendant's
premises must damage the neighbor or the neighboring "estate."
Differing from Louisiana's tort doctrine (which
is established in arts. 2315 et seq. in Book III Title V,
entitled Obligations Arising Without Agreement), art. 667 appears in Book
II, Title IV, entitled Predial Servitudes; specifically, in section 1,
Limitations of Ownership, of Chapter 3, Legal Servitudes. The basic term,
servitude, is not defined in the Civil Code but is generally understood
to be an obligation owed by one "estate," referred to as the "servient
estate," either to designated persons or to another estate, referred to
as the "dominant estate." There are two kinds of servitudes, personal and
predial.(83) "A personal servitude is a
charge on a thing for the benefit of a person,"(84)
of which there are but three: usufruct, habitation, and the right of use.(85)
In contrast, a "predial servitude is a charge on a servient estate for
the benefit of a dominant estate," which two estates must belong to different
owners.(86) The two immovables that constitute
the two estates ---- dominant and servient ---- need not be contiguous
or within any given proximity,(87) and
the predial servitude itself is an immovable, albeit incorporeal.(88)
Among predial servitudes are included (1)
natural servitudes, such as drainage, (2) legal servitudes, which are those
established by law, and (3) conventional servitudes, which are established
by contract. Article 667 is applicable to legal servitudes and covers such
obligations of neighborhood as keeping buildings in repair,(89)
building projections across property lines,(90)
building encroachments on adjoining property,(91)
common walls,(92) and right of passage
to and from an enclosed estate.(93) Article
667 is aptly titled "Limitations on use of property."
In distinguishing actions under art. 2315
on the one hand and those under arts. 667 and 668 on the other, Professor
A. N. Yiannoupoulos has written
The question arises, therefore, as to the
interrelations of articles 2315, 667, and 668. Specifically, does the broadened
notion of fault under article 2315 render the notion of liability without
negligence under articles 667 and 668 unnecessary? It is submitted that
this is not the case: the two sets of provisions may overlap in part but
continue to establish distinct grounds of responsibility. Article 2315
establishes responsibility under the law of delictual obligations for all
injuries to persons and property. Articles 667 and 668 establish specifically
responsibility for damage to property and persons in the context of neighborhood,
namely, under rules of property law. It is conceivable that liability may
rest on either ground exclusively or on both cumulatively. Indeed, a plaintiff
may satisfy the terms and conditions of both sets of articles and may have
two distinct causes of action for a single recovery, one resting on the
precepts of the law of obligations and the other on precepts of the law
of property; or he may have a cause of action either under article 2315
or under articles 667 and 668.(94)
Although courts and commentators disagree
about the nature of the interest that a plaintiff must have to bring an
action under art. 667, all appear to agree that the plaintiff must have
interest in an immovable near the defendant-proprietor's immovable. For
E. Who Can Bring the Action?
To be a "neighbor" one need not be an adjoining
landowner; as article 651 says[,] "it suffices that they [the lands] be
sufficiently near, for one to derive benefit from the servitude on the
other."...Because article 667 appears among those dealing with servitudes,
and because article 666 provides that these servitudes are imposed by law
"upon the proprietors...towards one another," it seems clear that the plaintiff
must have a property interest....(95)
We find that certain persons other than landowners
have the requisite interest to entitle them to institute an action based
on Article 667....
Because the servitude is established for
the benefit of the estate rather than for the owners personally, those
who have a proprietary interest in the estate as outlined by Professor
Stone have the standing to bring an action under Article 667.(96)
We are of the further opinion that the word
"neighbor" as used in Article 667 is indefinite and refers to
any land owner whose property may be damaged irrespective of the distance
his property may be from that of the proprietor whose work caused the damage.(97)
To summarize this point, art. 667 authorizes
an action by a "neighbor" against the owner of an immovable ("proprietor")
for damage that the neighbor suffered by virtue of an activity conducted
on the proprietor's premises. To show that he is a "neighbor," and thus
legally entitled (standing; right of action) to maintain an art. 667 action,
a plaintiff must show some type of ownership interest in immovable property
near that of the proprietor.
In completing this analysis, we note that,
in 1977, Louisiana's legislature amended portions of the Civil Code pertinent
to this analysis. Prior to the amendment, art. 666 provided that legal
servitudes (including art. 667) were imposed by law "upon the proprietors...towards
one another." Following the amendment, arts. 664 and 666 were condensed
to form the new art. 659,(98) which states:
"Legal servitudes are limitations on ownership established by law for the
benefit of the general public or for the benefit of particular persons."
This amendment on its face makes it less clear that one must have some
type of immovable property interest to maintain an action under art. 667;
the official revision Comment provides, however, that new art. 659 is based
on art. 664 of the Louisiana Civil Code of 1870, and "does not change the
Nevertheless, to confirm our conclusion that
there has been no change in interpretation, i.e., that the revisions did
not strip away the requirement that a plaintiff have some type of immovable
property interest, we turn to post-amendment court and commentator treatments
of art. 667. Our review of these serves to satisfy us that there has been
no such change. Professor Yiannopoulos still writes:
Literally, Articles 667 and 668 apply to "proprietors,"
namely, landowners....By virtue of an expansive interpretation, any person
assuming the position of owner, usufructuary, possessor in good or bad
faith, or long term lessee, may qualify as a proprietor....
Persons that do not qualify as proprietors,
such as guests, contractors, and members of the public, may have a variety
of remedies against a landowner under the law of delictual obligations
or under Article 669, but not for violation of obligations established
by Articles 667 and 668.(99)
And the courts of Louisiana continue to agree.(100)
In summary, then, the Plaintiffs are precluded
both procedurally and substantively from recovering against Kerr-McGee
under art. 667. Procedurally, they have no standing or right of action
to sue Kerr-McGee under art. 667 as owner of the platform, an immovable
that is the servient estate in this instance, because art. 667 creates
obligations in favor of proprietors who are neighbors and thus enjoy the
position of the dominant estate of the predial servitude of neighborliness
created by this section of the Civil Code. Roberts, a non-proprietor, incurred
his injuries while he was physically present on the servient estate, not
on a dominant one; and his injuries resulted from the proprietor's lawful
use of his estate. Conversely, none of the Plaintiffs is owed a duty by
virtue of ownership or presence on an adjacent or proximate dominant estate,
and therefore they cannot ground their claims against Kerr-McGee in any
aspect of predial servitudes in general or art. 667 in particular.
Substantively, the Plaintiffs are precluded
from recovery under art. 667. First, they have not attempted to demonstrate
---- nor could they ---- that Kerr-McGee "knew or, in the exercise of reasonable
care, should have known that [its] works would cause damage, that the damage
could have been prevented by the exercise of reasonable care, and that
[it] failed to exercise such reasonable care." Second, absent knowledge
and ability to prevent, Kerr-McGee could only be answerable for damages
if the injuries were caused by ultrahazardous activity which, for purposes
of art. 667, is "strictly limited to pile driving or blasting with explosives."(101)
And, as the district court correctly determined, use of a wireline perforating
gun in the course of plugging and abandoning an oil or gas well is not
a manifestation of blasting with explosives.
Our review of the summary judgment record
in this case and the legal propositions advanced by counsel in their appellate
briefs and in their arguments before us, together with our consideration
of the reasoning of the district court, satisfies us that the court (1)
correctly applied the appropriate test in denying seaman status to Roberts
in his Jones Act claim against Cardinal, and (2) correctly determined that
wireline perforation, as a common and customary activity in the petroleum
industry ---- including use in connection with plugging and abandoning
oil and gas wells ---- is distinguishable from blasting with explosives,
and is not an ultrahazardous activity for purposes of either vicarious
liability and negligence under Louisiana tort law or strict liability of
an owner of an immovable for damage to his neighbors under art. 667 of
the Louisiana Civil Code. The district court's grants of summary judgment
in favor of Cardinal and Kerr-McGee are, therefore,
1. 46 U.S.C. app. §
2. La. Civ. Code Ann. art.
3. La. Civ. Code Ann. art.
2317.1 and 2322.
4. La. Civ. Code Ann. art.
5. 43 U.S.C. §§
6. To avoid confusion,
the OCSLA defendants will be referred to throughout the balance of this
opinion as "Kerr-McGee" even if, at the particular time referred to, Kerr-McGee
had not yet succeeded to Oryx.
7. It is not altogether
clear from the record whether the increase of pressure resulting from the
opening of the valve below was the sole cause of detonation of the gun.
After discussing possible ways in which the shear screws that controlled
the actuation of the gun could have been sheared, however, the engineer's
report concludes: "The exact cause of the premature firing may be only
academic. The fundamental cause was almost certainly the sudden application
of pressure to the assembly. This has been stated repeatedly in the various
reports and there is no reason to doubt it." Accordingly, we will refer
to the opening of the valve in the well tubing below the gun, with the
resulting increase in pressure, as the cause of the gun's firing.
8. 43 U.S.C. § 1333(a)(2)(A).
9. Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
10. Fed.R.Civ.P. 56(c);
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
11. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
12. See Olabisiomotosho
v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).
13. Harbor Tug &
Barge Co. v. Papai, 520 U.S. 548, 554 (1997); Chandris, Inc. v.
Latsis, 515 U.S. 347, 369 (1995).
14. McDermott International,
Inc. v. Wilander, 498 U.S. 337, 356 (1991); see also Papai,
520 U.S. at 554.
15. Celotex Corp.,
477 U.S. at 323.
16. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
17. Id. at 151.
18. 46 U.S.C. app. §
19. Chandris, Inc.
v. Latsis, 515 U.S. 347, 355 (1995).
20. 33 U.S.C. § 901
21. Id. §
902(3)(G); see also Chandris, 515 U.S. at 355.
22. Chandris, 515
U.S. at 355-56.
23. Id. at 368
(quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355 (1991)
(quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959))).
24. 520 U.S. 548 (1997).
25. Chandris, 515
U.S. at 368; see also Papai, 520 U.S. at 560; Hufnagel
v. Omega Service Industries, Inc., 182 F.3d 340, 346 (5th Cir. 1999).
26. Chandris, 515
U.S. at 371 (emphasis added).
28. 203 F.3d 376 (5th
29. 182 F.3d 340 (5th
30. St. Romain,
203 F.3d at 379-380 (emphasis added). See also Chandris,
515 U.S. at 367 ("Since Barrett, the Fifth Circuit consistently
has analyzed the problem in terms of the percentage of work performed on
vessels for the employer in question-and has declined to find seaman status
where the employee spent less than 30 percent of his time aboard ship.").
31. Chandris, 515
U.S. at 366 (citing Braniff v. Jackson Avenue-Gretna Ferry, Inc.,
280 F.2d 523, 528 (5th Cir. 1960))(emphasis added).
32. Harbor Tug &
Barge Co. v. Papai, 520 U.S. 548, 556-57 (1997) (quoting Chandris,
515 U.S. at 366) (internal citations omitted) (emphasis added).
33. We note, as did the
district court, that Roberts also asserted in his deposition that three
projects on which he worked for Cardinal were billed as platform jobs,
but were actually performed on Cardinal liftboats. This could indeed change
the calculation, had Roberts offered some evidence other than just his
own conclusional statements to counter Cardinal's evidence in the form
of invoices for those jobs that do not indicate the use of a Cardinal liftboat
on the jobs. As the district court correctly noted, "[c]onclusory [sic]
statements in an affidavit do not provide facts that will counter summary
judgment evidence, and testimony based on conjecture alone is insufficient
to raise an issue to defeat summary judgment." Lechuga v. Southern Pacific
Transportation Co., 949 F.2d 790, 798 (5th Cir. 1992) (footnotes omitted).
34. Hufnagel, 182
F.3d at 348 ("'We reject the notion that fleet of vessels in this context
means any group of vessels an employee happens to work aboard.'...[A] group
of vessels will only qualify where it is a specific, identifiable fleet
or a finite group of vessels, subject to common ownership or control."
(quoting Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th
Cir. 1986) (emphasis omitted)).
35. Chandris, 515
U.S. at 371.
36. 731 So.2d 200 (La.
37. 700 F.2d 240 (5th
38. 727 F.2d 427 (5th
39. Wisner, 731
So.2d at 202.
40. Id. at 205
(quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 370 (1995) (citing
Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J., dissenting))).
41. 734 So.2d 933 (La.
App. 1 Cir. 1999).
42. Id. at 938.
44. Id. (quoting
v. Int'l Mooring & Marine, Inc., 700 F.2d 240, 245 (5th Cir. 1983)).
45. Id. (quoting
v. Oceaneering International, 727 F.2d 427, 436 (5th Cir. 1983)) (emphasis
46. 203 F.3d 376, 379-80
(5th Cir. 2000).
47. La. Civ. Code Ann.
art. 2315 (emphasis added).
48. 249 So.2d 133 (La.
1971)(overruled by statute on other grounds).
49. Id. at 136.
50. Id. at 137.
51. Id. at 139
(citing Egan v. Hotel Grunewald Co., 55 So. 750 (1911)); see
also Perkins v. F. I. E. Corp., 762 F.2d 1250, 1259 (5th Cir.
1985)(tracing the development of Louisiana law with respect to the imposition
of liability under art. 2315 for conducting ultrahazardous activities).
52. 762 F.2d 1250 (5th
53. Id. at 1261.
54. 418 So.2d 493 (La.
55. Perkins, 762
F.2d at 1261.
56. See, e.g.,
v. Gulf States Utilities Co., 418 So.2d 493, 498 (La. 1982) (explaining
that "liability is imposed [upon the enterpriser] as a matter of policy
when harm results from the risks inherent in the nature of the [ultrahazardous]
activity" even though the enterpriser may not have been "negligent in any
57. Ainsworth v. Shell
Offshore, Inc., 829 F.2d 548, 549 (5th Cir. 1987), cert. denied,
485 U.S. 1034 (1988); Triplette v. Exxon Corp., 554 So.2d 1361,
1362 (La. App. 1st Cir. 1989).
829 F.2d at 549-50; Triplette, 554 So.2d at 1362-63.
59. We note Kerr-McGee's
assertion that, in any case, it was not "directly engaged" in wireline
perforation, as required by the test for imposing liability on the principal.
As we join the district court in ruling that wireline perforation is not
an ultrahazardous activity, we do not reach the question whether Kerr-McGee
was engaged in the activity by virtue of its independent contractor's engagement
in the activity.
60. Kent v. Gulf States
Utilities Co., 418 So.2d 493, 498 (La. 1982)(citing Langlois v.
Allied Chemical Corp., 249 So.2d 133 (La. 1971); Gotreaux v. Gary,
94 So.2d 293 (La. 1957);
Craig v. Montelepre Realty Co., 211 So.2d
627 (La. 1968);
Fontenot v. Magnolia Petroleum Co., 80 So.2d 845
61. Kent, 418 So.2d
62. 762 F.2d 1250 (5th
63. Id. at 1267-68.
64. 80 So.2d 845 (La.
65. Id. at 846-47.
66. Id. at 849.
67. 508 F.2d 1069 (5th
68. Id. at 1072
69. Fontenot, 80
So.2d at 849.
70. See supra
note 59 and accompanying text.
71. Perkins v. F. I.
E. Corp., 762 F.2d 1250, 1268 (5th Cir. 1985) (quoting Kent v. Gulf
States Utilities Co., 418 So.2d 493, 498) (La. 1982)).
72. Kent, 418 So.2d
73. CNG Producing Co.
v. Columbia Gulf Transmission Corp., 709 F.2d 959, 962 (5th Cir. 1983)(emphasis
74. 829 F.2d 548 (5th
75. Id. at 550.
76. 599 So.2d 827 (La.App.
1 Cir. 1992).
77. Id. at 840.
78. Id. at 839.
79. Roberts v. Cardinal
Services, Inc., 2000 WL 1300390, at *3 (E.D.La. 2000) (internal citations
80. Bergeron, 599
So.2d at 838-39 (reporting that "[t]he gun consists of high explosives
and a blasting cap to detonate the shaped cartridges").
81. CNG Producing Co.
v. Columbia Gulf Transmission Corp., 709 F.2d 959, 962 (5th Cir. 1983).
82. Article 667 provides,
in pertinent part:
Although a proprietor may do with his estate
whatever he pleases, still he cannot make any work on it, which may deprive
his neighbor of the liberty of enjoying his own, or which may be the cause
of any damage to him. ... [The proprietor] is answerable for damages only
upon a showing that he knew or...should have known that his works would
cause damage, that the damage could have been prevented .... Nonetheless,
proprietor is answerable for damages without regard to his knowledge or
his exercise of reasonable care, if the damage is caused by an ultrahazardous
ultrahazardous activity as used in this Article
strictly limited to pile driving or blasting with explosives.
La. Civ. Code Ann. art. 667 (emphasis added).
83. La. Civ. Code Ann.
84. La. Civ. Code Ann.
86. La. Civ. Code Ann.
87. La. Civ. Code Ann.
88. La. Civ. Code Ann.
89. La. Civ. Code Ann.
90. La. Civ. Code Ann.
91. La. Civ. Code Ann.
92. La. Civ. Code Ann.
art. 673 et seq.
93. La. Civ. Code Ann.
art. 689 et seq.
94. Yiannopoulos, A.N.,
Responsibility in the Framework of Vicinage: Articles 667-69 and 2315 of
the Civil Code, 48 Tul. L. Rev. 195, 223 (1974).
95. Stone, Ferdinand Fairfax,
Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L.
Rev. 701, 711 (1966) (emphasis added).
96. Salter v. B.W.S.
Corp., 281 So.2d 764, 767-68 (La. App. 3d Cir. 1973) (emphasis added).
also Yiannopolous, supra note 94, at 206 ("Articles 667 and
668 seem to involve reciprocal duties among landowners that may be broadly
regarded as servitudes imposed by law, namely, as charges laid on an estate
in favor of another estate belonging to another owner.") (emphasis
97. Gulf Insurance
Co. v. Employers Liability Assurance Corp., 170 So.2d 125, 129 (La.
App. 4th Cir. 1964).
98. Table 2-Derivation,
La. Civ. Code Ann. Vol. 3A, p. XXIX.
99. 4 A.N. Yiannopoulos,
Louisiana Civil Law Treatise, Predial Servitudes, § 44: Proprietors
and Other Persons, pp. 125-26 (2d ed. 1997).
100. See, e.g.,
v. Angus Chemical Co., 728 So.2d 441, 451 (La.App. 2 Cir. 1999) (citing
the above-referenced excerpt from Yiannopoulos, Louisiana Civil Law Treatise
in denying that persons injured by an explosion on the premises of a fertilizer
plant could recover against the plant operator under Art. 667).
101. La. Civ. Code Ann.