Roberts v. Cardinal Services, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 00-31232

__________________________

RUSTY ROBERTS, individually and on behalf of their minor

children, Chase & Jarod Roberts; Sandra Roberts

Plaintiffs-Appellants,

versus

CARDINAL SERVICES, INC.; ET AL.;

Defendants,

CARDINAL SERVICES, INC.; KERR-MCGEE CORPORATION, successor-in-

interest to Oryx Energy Company,

Defendants-Appellees.

___________________________________________________

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,

1

46 U.S.C. app. § 688.

1

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

2

La. Civ. Code Ann. art. 2315.

3

La. Civ. Code Ann. art. 2317.1 and 2322.

4

La. Civ. Code Ann. art. 667.

5

43 U.S.C. §§ 1331-56.

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.

2

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

3

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” it.)

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

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

4

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

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).

5

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.

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo, applying the

6

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.

9

Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380

(5th Cir. 1998).

10

Fed.R.Civ.P. 56(c); Celotex 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.

7

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

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. § 688.

8

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

19

Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995).

20

33 U.S.C. § 901 et seq..

21

Id. § 902(3)(G); see also Chandris, 515 U.S. at 355.

22

Chandris, 515 U.S. at 355-56.

9

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. Papai24 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 in 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

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).

10

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 observing,

27

Id.

28

203 F.3d 376 (5th Cir. 2000).

29

182 F.3d 340 (5th Cir. 1999).

11

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

Chandris, 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:

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).

12

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

control.”...

In deciding whether there is an identifiable

group of vessels of relevance for a Jones Act

seaman-status determination, the 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,

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).

13

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

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).

14

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

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)).

15

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 Wallace v. Oceaneering

International38 to reverse a grant of summary judgment against a

commercial diver. The Wisner 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

35

Chandris, 515 U.S. at 371.

36

731 So.2d 200 (La. 1999).

37

700 F.2d 240 (5th Cir. 1983).

38

727 F.2d 427 (5th Cir. 1984).

39

Wisner, 731 So.2d at 202.

16

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

40

Id. at 205 (quoting Chandris, Inc. v. Latsis, 515 U.S.

347, 370 (1995) (citing Seas 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.

43

Id..

44

Id. (quoting Bertrand v. Int’l Mooring & Marine, Inc.,

700 F.2d 240, 245 (5th Cir. 1983)).

17

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

Little 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,

45

Id. (quoting Wallace v. Oceaneering International, 727

F.2d 427, 436 (5th Cir. 1983)) (emphasis added).

46

203 F.3d 376, 379-80 (5th Cir. 2000).

18

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

19

summary judgment dismissing the Plaintiffs’ claims under arts. 2315

and 667.

1. The Article 2315 Claim.

a. Framework

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 fault 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,

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.

20

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

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 Cir. 1985).

53

Id. at 1261.

54

418 So.2d 493 (La. 1982).

55

Perkins, 762 F.2d at 1261.

21

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

56

See, e.g., Kent 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

respect”).

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).

22

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

58

Ainsworth, 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

23

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

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 (La. 1955)).

61

Kent, 418 So.2d at 498.

62

762 F.2d 1250 (5th Cir. 1985).

63

Id. at 1267-68.

64

80 So.2d 845 (La. 1955).

24

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 court

observed:

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 unavoidable

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

65

Id. at 846-47.

66

Id. at 849.

67

508 F.2d 1069 (5th Cir. 1975).

25

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 care.

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

68

Id. at 1072 n.3.

26

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 of law.

c. Ultrahazardous De Facto

69

Fontenot, 80 So.2d at 849.

27

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

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)).

28

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

72

Kent, 418 So.2d at 498-99.

73

CNG Producing Co. v. Columbia Gulf Transmission Corp.,

709 F.2d 959, 962 (5th Cir. 1983)(emphasis in original).

29

wellbore, as intended.

This position is consistent with our prior decisions. In

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 Ainsworth.

We distinguish our holding today from the Bergeron court’s

holding which at first blush appears to be to the contrary. In

Bergeron, a Louisiana court of appeal stated, “even if one found

that perforating was not ultrahazardous[,] a finding that

74

829 F.2d 548 (5th Cir. 1987).

75

Id. at 550.

76

599 So.2d 827 (La.App. 1 Cir. 1992).

77

Id. at 840.

30

perforating is a [sic] inherently and intrinsically dangerous work

is unavoidable.”78 As the district court in the instant case

correctly noted, however, the Bergeron 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

court continued:

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

78

Id. at 839.

79

Roberts v. Cardinal Services, Inc., 2000 WL 1300390, at

*3 (E.D.La. 2000) (internal citations omitted).

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”).

31

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 human conduct.

The imposition of liability on a principal for acts of an

32

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. 66782; or (2)

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, the proprietor

is answerable for damages without regard to his

knowledge or his exercise of reasonable care, if the

damage is caused by an ultrahazardous activity. An

ultrahazardous activity as used in this Article is

strictly limited to pile driving or blasting with

explosives.

33

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

other jurisdictional.

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

La. Civ. Code Ann. art. 667 (emphasis added).

34

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,”

35

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

83

La. Civ. Code Ann. art. 533.

84

La. Civ. Code Ann. art. 534.

85

Id.

86

La. Civ. Code Ann. art. 646.

87

La. Civ. Code Ann. art. 648.

88

La. Civ. Code Ann. art. 649.

89

La. Civ. Code Ann. art. 660.

36

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

90

La. Civ. Code Ann. art. 663.

91

La. Civ. Code Ann. art. 670.

92

La. Civ. Code Ann. art. 673 et seq.

93

La. Civ. Code Ann. art. 689 et seq.

37

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 some

interest in an immovable near the defendant-proprietor’s immovable.

For example:

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

and,

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

94

Yiannopoulos, A.N., Civil 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, Tort Doctrine in Louisiana:

The Obligations of Neighborhood, 40 TUL. L. REV. 701, 711 (1966)

(emphasis added).

38

proprietary interest in the estate as outlined

by Professor Stone have the standing to bring

an action under Article 667.96

and, again,

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

96

Salter v. B.W.S. Corp., 281 So.2d 764, 767-68 (La. App.

3d Cir. 1973) (emphasis added). See 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 added).

97

Gulf Insurance Co. v. Employers Liability Assurance

Corp., 170 So.2d 125, 129 (La. App. 4th Cir. 1964).

39

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 law.”

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,

98

Table 2–Derivation, La. Civ. Code Ann. Vol. 3A, p. XXIX.

40

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

99

Articles 667 and 668.

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

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., Dumas 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).

41

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.

III. Conclusion

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

101

La. Civ. Code Ann. art. 667.

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(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,

AFFIRMED.

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