1 United States Court of Appeals,

Fifth Circuit.

No. 94-41046

Summary Calendar.

Timothy Wayne ROYER, individually and on behalf of his minor

children on Behalf of Reagan Royer on Behalf of Cade Royer, et al.,

Plaintiffs-Appellants,

v.

CITGO PETROLEUM CORP, et al., Defendants,

Jacobs Engineering Group Inc., J E Merit Constructors Inc., and

Robert Green, Defendants-Appellees.

June 1, 1995.

Appeals from the United States Distr ict Court for the Western

District of Louisiana.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

DUHÉ, Circuit Judge:

Pla intiff Timothy Wayne Royer appeals the district court's

entry of partial summary judgment in favor of Defendan ts Jacobs

Engineering Group I n c. and JE Merit Constructors, Inc.

(collectively "Jacobs"). Royer sought recovery against Jacobs

under theories of strict liability and negligence for injuries he

sustained in a fall. We affirm.

BACKGROUND

Citgo Petroleum Corp. (Citgo) hired Jacobs to coordinate and

supervise the exp ansion of Citgo's Lake Charles refinery. Citgo

hired other contractors to perform specifi c segments of the

project. One such contractor was BE & K Construction (BE & K), who

employed Royer. On the day of Royer's fall, BE & K was responsible1 Royer appeals only the district court's grant of summary

judgment in favor of Jacobs.

2 for connecting two completed sections of work. Royer attached

himself to the wheel of a valve and lowered himself to do some

work. BE & K had assembled the valve and welded it to Citgo's

existing pipe work. The valve wheel came off, and Royer fell. The

improper assembly of the valve, rather than any defectiveness of

its individual components, caused the valve unit to be defective.

Royer sued Citgo, Jacobs, and Robert Green, a Jacobs employee.

The district court granted summary judgment to Jacobs and Green and

denied Royer's mo tion to join Michael McNab, another Jacobs

employee. 1 According to the court, Royer's strict liability action

failed because Royer could not establish that Jacobs had custody of

the valve. His negligence action failed because he could not

establish that Jacobs had a legal d uty to inspect the valve or

supervise BE & K's work. The court then entered final judgment for

Jacobs and Green und er Federal Rule of Civil Procedure 54(b).

Royer appeals.

DISCUSSION

We review a district court's grant of summary judgment de

novo. W eyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th

Cir.1990). We consider all the facts contained in the summary

judgment record and the inferences to be drawn therefrom in the

light most favorable to the non-moving party. Id.

I. Strict Liability

The district court granted summa ry judgment on the strict3

liability claim because Jacobs did not have custody of the valve.

"We are responsible

... for the damage occasioned by

... the things

which we have in our custody." La.Civ.Code.Ann. art. 2317 (West

1979). For Royer to recover from Jacobs in strict liability under

Article 2317, he must prove: (1) the thing injured him; (2) the

thing was in Jacobs's custody; (3) there was an unreasonable risk

of harm in the thing; and (4) his damage arose from that danger.

Ross v. La Coste de Monterville, 502 So.2d 1026, 1028 (La.1987).

The second element requires the defendant's custody of the thing.

The district court determined, as a matter of law, that Jacobs

lacked custody of the valve.

The Louisiana Supreme Court's definition of custody is based

on the French legal concept of garde. Ellison v. Conoco, Inc., 950

F.2d 1196, 1208 (5th Cir.1992), cert. denied,

--- U.S. ----, 113

S.Ct. 3003, 125 L.Ed.2d 695 (1993). G arde obligates the proprietor

of a thing, or one who avails himself of it, to preven t it from

damaging others. I d. Under French law, g arde of a thing may be

divided between two persons; the guardian of the object's conduct

is presumed responsible for damage caused by its behavior, and the

guardian of the object's structure is responsible for damage caused

by its defects. R oss, 502 So.2d at 1030. Only the guardian of the

object's structure has strict liability under Article 2317. I d. at

1032.

The owner of the thing is the presumed guardian of its

structure. D oughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464

(La.1991). The presumption is rebuttable, however, by showing that2 It is unclear whether custody of an object's structure may

be cumulative between two parties. See King v. Louviere, 543

So.2d 1327, 1331 (La.1989) (declining to address whether an

employee, in addition to the employer, can have custody of his

employer's motor vehicle). We need not consider whether two

parties can have custody of one thing's structure because we

conclude, as a matter of law, that Jacobs lacked custody of the

valve.

4 the owner (1) did not receive a substantial benefit from ownership

nor (2) had any control or authority over the thing. Id. The

district court explained that Citgo, as owner of the valve, had

custody of it for purposes of Article 2317. Royer does not argue

that Citgo lacked custody; rather, he contends that both Jacobs

and Citgo had custody, and that the question of Jacob's custody

should be resolved by a jury. 2

Royer fails to show that Jacobs received a substantial

benefit from the valve. We acknowledge that whether a party has

custody of an object is generally an issue for the jury. D oughty,

576 So.2d at 464. Nevertheless, Jacobs derived minimal benefit

fromthe valve. It was welded into Citgo's pipe work, and Citgo

was the prime beneficiary of the valve. C f. Spott v. OTIS Elevator

Co., 601 So.2 d 1355, 1363 (La.1992) (finding that elevator owner

was the prime beneficiary of the elevator). Because Jacobs does

not receive a substantial benefit from the valve, our decisions

cited by R oyer are distinguishable. S ee Haas v. Atlantic

Richfield, 799 F.2d 1011, 1014 (5th Cir.1986); Dobbs v. Gulf Oil

Co., 759 F.2d 1213, 1218 (5th Cir.1985).

Royer also cannot raise a fact issue that Jacobs had control

of the val ve. Royer contends that McNab's full-time physical3 When a party, such as Jacobs, does not receive a

substantial benefit from a thing, the party must have complete

control over the thing to have custody. See Spott, 601 So.2d at

1363; Coleman v. OTIS Elevator Co., 582 So.2d 341, 343

(La.Ct.App. 4th Cir.1991). We need not consider whether Jacobs's

control was complete because Jacobs lacked control over the

valve.

5 presence at the refinery gave Jac obs control and supervisory

authority over the connecting work. Nonetheless, Royer fails to

contradict summary judgment proof that Jacobs had not yet obtained

control of the valve. McNab inspected the work of other

contractors only after it was complete and tendered to Jacobs. The

connection work to which Royer was assigned was not complete. As

a result, McNab did not inspect it, and Jacobs lacked control over

it. Because Royer cannot show that Jacobs had control over the

valve, we conclude that Jacobs lacked custody of it. 3

II. Negligence

On the negligence theory, the district court granted summary

judgment to Jacobs because Royer failed to raise a fact issue that

Jacobs had any legal duty to inspect the valve or supervise BE &

K's work at the time of the accident. We have just concluded that

Jacobs had no custody over the valve because the work in which the

valve was located had not been completed and tendered to Jacobs.

I t follows, then, that Jacobs had no legal duty to inspect the

valve. Furthermore, Royer has not produced any evidence that

Jacobs had a duty to supervise work tha t had not yet been

completed. We agree with the district court that Jacobs owed no

legal duty to Royer concerning the valve.

CONCLUSION6

For th e foregoing reasons, we AFFIRM the district court's

grant of partial summary judgment in favor of Jacobs.