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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, Def endant Third Party Plaintiffs-Appellees

Appellants,

Pacific Scientific Company, Defendant Third Party DefendantAppellee.

Nov. 26, 1997.

A ppeal 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 "Pic ketts"), and Petroleum Helicopters, Inc., his1 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 employer ("PHI"), asser t 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 H elicopter Leasing Corporation, the owner of the

helicopter, and RTS Capital Ser vices, Inc., its parent company

(collectively, "RTS"), ar e 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 after3

take-off. During the resulting crash, the seat belt failed because

one of its components, the "t ake-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 cinchi ng 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 symmetri c 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 reassembled2 Aircraft Belts is no longer a party to this action.

4 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, t hat 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 pa rties 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 other5

than PSC and RTS had been dismissed for one reason or another. The

Picketts and PHI now appeal the summary judgments entered in favor

o f PSC and RTS. RTS makes a protective appeal of its crossclaim

against PSC.

II

We review a grant of summary judgment d e 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 iss u e for trial. In

examining the facts, we draw "all inferences most favorable to the

p arty opposing the motion." E xxon Corp. v. Baton Rouge Oi l and

Chemi cal Workers Union, 77 F.3d 850, 853 (5th Cir.1996). We are

also mindful, however, of the underlying standards and burdens of

proof. A nderson 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 t rial 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 G raham 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 t h e6

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 p roduct.

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 b oth 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, u nder

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 o f proximate

cause under Louisiana law in our decision of G raham v. Amoco Oil

Co., 21 F.3d 643 (5th Cir.1994). There, we held that proximate3 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 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.' " I d. 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

misas sembly inherent in its design. Actual failure simply could

not have occurred without actual negligent misassembly, here,

presumably by Aircraft Belts, and this actu al misassembly is an

intervening cause that breaks the "natural and continuous sequence"

of events flowing from the design. 3 In the S utton case relied on

in Graham, the court reversed a finding of partial negligence on

the part of a mother whose ch ild was injured after she failed to

pick him up from school as she usually did. Applying the

definition stated above, the Sutton C ourt found that the child's8

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 proximatel y cause that injury

because, as a mat ter of law, the a ctual 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 acci dent. Based on our precedent of E llison 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.

Althoug h 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 in9

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 own4 There is one additional sentence in Article 2317: "This,

however, is to be understood with the following modifications."

10 act, but for that which is caused by the act of persons for whom we

are answerable, or of the thi ngs 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. B FP 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 E llison v. Conoco, Inc., 950 F.2d 1196 (5 t h

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, b ut 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 helicopte r in its physical possession. Thus, unlike the

defendant in Ross, it could not have "continu[ed] to have" custody.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 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 uninformat ive 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 F rench 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 is7 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 controlling as to articles with a civilian heritage that have not

been changed since that time. 7 R oss, 50 2 So.2d at 1030 (citing

Sample v. Whitaker, 172 La. 722, 135 So. 38 (1931), and other

cases); S help v. National Sur. Corp., 333 F.2d 431, 439 (5th

Cir.1964) (Wisdom, J.).

This rule applies here in the a pplication 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 mea ning beyond the literal English translation of "custody."

Ross, 502 So.2d at 1030; E llison, 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

r emained closely tied to its civilian heritage. 9 In L oescher v."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 Par r, 324 So.2d 441 (La.1975), the Louisiana Supreme Court held

that the owner and possessor of a lot had g arde 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 avails14

him self 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 t he 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 e d.1970)). In R oss, 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. R oss speaks only of an owner

"conti nu[ing] to have" g arde, 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 E llison, 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 S ociété Commerciale Européenne des

Brasseries "Brasseries de la Meuse" v. Etablis sements Boussois-10 "Détention au sens intellectuel " versus " détention <<

lato sensu >>. " 2 Mazeaud No. 1160 at 220.

15 Souchon-Neuvesel et al., Cass. 2e civ., June 5, 1971, 1971

Bull.Civ. II, No. 204, r eprinted in English translation with

c ommentary in Arthur Taylor von Mehren and James Russel Gordley,

The Civil Law System 676-78 (2d ed.1977), the plaintiff was injured

by a defe ct 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 bo ttler 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 te st 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 owner ship, 1 0 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 due11 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 the existence of a property right in a thing other than

ownership, for example a usufruct, the " garde ' attaches in

principle to t he 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 own er 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 R oss itself, the owner of the step ladder had lent

it out for only a short period of time, and expected it to return13 See note 10.

17

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 ba ck 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.

"Be c ause [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." E llison, 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 pow er of usage, direction, and

control, including the practical abil ity to discover defects, or

what the French would call " d étention 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, t o the facts of the instant case, we18

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 h ad 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

a t PHI's facility might be read to constitute a brief mome nt of

physical possession by RT S 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 under19

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.