author: SUMMERS, Justice. TATE, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Donnie Franklin COLLUM.
    Nos. 62157, 62158, 62159 and 62160.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Dissenting Opinion Dec. 22, 1978.
    Dissenting Opinion Feb. 1, 1979.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, Wilson F. Walters, Wilson F. Walters & Associates, Inc., Denison, Tex., for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Francis F. Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Jessie Collum, his wife Lenora, and their children, Jeffrey, age nine, and Anna, age six, were killed on May 27, 1977 in their trailer home in the Four Point Heights Subdivision to the Town of Raceland, in La-fourche Parish, Louisiana. All had been shot several times; Jessie Collum had also been stabbed several times. Two days later Donnie Collum, who was then fifteen years old, having been born December 21, 1961, and his brother Scott Collum, age thirteen, were stopped by police officers in Benson, Arizona, driving a 1974 Cadillac automobile. The brothers admitted the Cadillac belonged to Jessie Collum, their father by his first marriage to Peggy Mendoza, and that they had taken it without permission. The Arizona authorities retained custody of the automobile and the boys were turned over to their mother in Victoriaville, California.

On June 1, 1977 the bodies of the four Collums were discovered. Police authorities in Lafourche Parish ascertained that Donnie and Scott had been living with their father and that the Cadillac was missing. Accordingly, a nationwide bulletin was broadcast in an attempt to locate the Cadillac for investigation in connection with a homicide. As a result of an inquiry to that office on June 3, the San Bernardino County Sheriff’s office notified the Lafourche authorities of the whereabouts of Donnie and Scott Collum in Victoriaville, California. Arrest warrants were then issued by the District Judge in Lafourche Parish to arrest them for theft. Donnie and Scott were apprehended on June 3, 1977 and taken to Sheriff’s Office Sub-Station in Victo-riaville.

They were questioned about the car theft and the killings and gave a statement to the California authorities admitting their guilt of the killings. Later, on the evening of June 3, two Lafourche Parish deputies arrived and Donnie and Scott were again questioned and confessed for a second time.

Upon their return to Louisiana Donnie was indicted by the grand jury for four counts of first degree murder as a juvenile fifteen years of age charged with a capital offense. La.Const. art. V, § 19; La.Rev. Stat. 14:30; La.Rev.Stat. 13:1570(A)(5). A motion to suppress his confessions was filed, heard and denied on December 5, 1977. The charges were then reduced to four separate counts of second degree murder, to which Donnie pled guilty on February 24, 1978, reserving his right to appeal the ruling on the motion to suppress. On each of the four counts he received a sentence of life imprisonment without the benefit of probation or parole for forty years, such sentences to be served consecutively. La. Rev.Stat. 14:30.1.

On this appeal three assignments of error are urged.

I.

At the outset it must be determined whether this Court’s decision in State in the Interest of Dino, 359 So.2d 586 (La.1978), is applicable to this prosecution. By that decision this Court decided that a confession of a person under seventeen years of age is not admissible unless the juvenile actually consulted with an attorney or an adult before waiving his right to silence; that the attorney or adult consulted was interested in the welfare of the juvenile; and if an adult other than an attorney is consulted, the adult also must be fully advised of the rights of the juvenile.

If the Dino holding applies to the case at bar, the State readily concedes the conviction must be reversed because the Dino decision was not complied with. No attorney, parent or adult friend actually consulted with the defendant at the interrogation. The State submits, however, that Dino should not be applied retroactively and the case should be governed by the “Totality of Circumstances Test”, the rule of law in these cases for many years in this State and in the Federal courts.

Dino became effective June 15, 1978. The offenses in the case before us occurred on May 27, 1977, and the guilty pleas were entered on February 24,1978. A motion to appeal was filed on March 3, 1978 returnable on May 2, 1978, and filed in this Court on May 3, 1978. Thus the issue of the retroactivity of the Dino decision, or at least its applicability to cases on direct appeal at the time of the decision, is squarely presented.

The Dino case dealt in part with a confession obtained from a thirteen-year-old boy as the result of a custodial interrogation. This Court concluded that the State had failed to show beyond a reasonable doubt under the totality of circumstances test that the juvenile had knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. This Court felt, however, that the “exclusive use of the totality of circumstances test in relation to waivers by juveniles tends to mire the courts in a morass of speculation.” To end this speculation on the part of both the courts and the police, it was decided that to demonstrate a knowing and intelligent waiver on his part, the State “must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination.” This Court recognized that though most minors are not mature enough to understand their rights nor competent to exercise them, some minors would be capable; nevertheless, it made the consultation an absolute prerequisite to waiver because such a requirement was a step toward guaranteeing knowing and intelligent waivers regardless of the minor’s degree of sophistication. 359 So.2d at 591-94.

In its impact on the law and police custodial interrogation, this decision may be likened to the United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the Court made the giving of certain warnings or rights an absolute prerequisite to the admissibility of an in-custody confession. As in this case, it was not long before the courts were called upon to determine the retroactivity of what has become known as the Miranda Rule.

In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the United States Supreme Court decided that the Miranda Rule would apply only to cases in which the trials commenced after the decision was handed down. Three criteria were formulated for deciding the retroac-tivity issue: 1) the purpose of the new rule; 2) the reliance which may have been placed upon prior decisions on the subject; and 3) the effect on the administration of justice of a retroactive application.

This Court’s decision in State v. King, 347 So.2d 1108 (La.1977), took the position that the balancing process of the criteria applied in Johnson v. New Jersey would be explored only where a newly announced rule does not go to the very integrity of the fact-finding process. Where the integrity of the fact-finding process is impaired, retroactivity would be imposed.

While the integrity of the fact-finding process is inextricably entwined with the three criteria applied in Johnson v. New Jersey, a separate and threshold consideration of that factor is articulated in keeping with the mandate of State v. King.

Under the law as it existed when Donnie Collum gave the confessions, it was not sacramental to the validity of a juvenile’s confession that the State “must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or informed parent, guardian or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination” as mandated by this Court’s decision in Dino. Aside from his claim that the Dino decision should be applied retroactively to his case to invalidate his confession, defendant makes insubstantial claims that his confession was involuntary. As this opinion points out hereafter no procedures were employed in taking the statements which were not permissible under the then prevalent jurisprudence approving the totality of circumstances test.

The major design of the new rule announced in Dino, even if it were to overcome an aspect of the criminal trial that substantially impairs its truth-finding function, is not violated in this case where there was no trial and the accused has pled guilty. In such a situation, this Court’s, jurisprudence and the jurisprudence of the Federal courts have consistently held that only the jurisdiction of the court which received the plea is reviewable on appeal. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Torres, 281 So.2d 451 (La. 1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972). The rule is, however, subject to an exception applicable to this case. With the court’s approval defendant reserved the right to appellate review of the non-jurisdictional ruling on the motion to suppress. Review of that ruling is therefore permissible under this exception. State v. Crosby, 338 So.2d 584 (La.1976).

But the Dino rule does not go to the very integrity of the fact-finding process. The decision purports to assure that a juvenile answering questions at a custodial interrogation does so with an intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing that right. This is the same purpose that the older voluntariness standard and the prophylactic Miranda rule served. Consequently, although an additional safeguard was announced in Dino, an accused whose case was being tried or on appeal on the effective date of Dino was nevertheless not deprived of asserting the same claim of involuntariness under the totality of circumstances test.

In the case at bar no evidence has been excluded and no question of the voluntariness or accuracy of the guilty plea is urged. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Only the validity of defendant’s confession is argued. The very integrity of the fact-finding process is unaffected.

Complete retroactive effect was not given to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Likewise in Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), the Court declined to give retroactive effect to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). See also, our opinion in City of Baton Rouge v. Short, 345 So.2d 37 (La.1977).

Having decided that the Dino rule does not impair the integrity of the fact-finding process under the circumstances of this ease, an analysis of the three criteria announced in Johnson v. New Jersey, supra, is appropriate.

The purpose of the new rule enunciated in Dino is twofold: to protect the juvenile’s right against self-incrimination and his right to counsel. It is not argued that the risks of convicting an innocent person are increased when the right against self-incrimination is unknowingly waived. An increased danger comes only when the incriminating statement given is likely to be false, a circumstance resulting not from a mere waiver of the right, but from additional outside pressures. The absence of counsel at this pretrial stage does not increase the risk of convicting an innocent either. The most counsel could do at this stage (for the person being questioned) is either bargain for a plea or advise his client not to answer any questions; both functions are undoubtedly of more use to a guilty person than to an innocent one. In sum, the Dino rules are not meant to avoid a risk of convicting an innocent person, and the absence of the Dino procedure does not affect the integrity of the fact-finding process.

Reliance which may have been placed upon prior decisions on the subject was the second criteria examined in Johnson. Prior to the Dino decision the “totality of circumstances” test was well accepted in Louisiana as a basis for deciding whether a juvenile had knowingly and intelligently waived his right. State v. Hills, 354 So.2d 186 (La. 1977); State v. Hall, 350 So.2d 141 (La. 1977); State v. Ross, 343 So.2d 722 (La. 1977); State v. Ghoram, 328 So.2d 91 (La. 1926); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Melanson, 259 So.2d 609 (La.App.1972).

The prevailing rule throughout the nation at the time was to the same effect. West v. United States, 399 F.2d 467 (5th Cir. 1968); Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert, denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407; State v. Roberts, 274 So.2d 262 (Fla. App.1973); American Law Institute, Model Code of PreArraignment Procedure, pp. 361-62 (1975).

From these authorities it is abundantly clear that neither the courts nor law enforcement authorities in Louisiana were aware that a juvenile’s custodial interrogation could not under any circumstance be conducted without consultation with attorney, parent or adult as set forth in Dino. Reliance on prior decisions on the subject was therefore explicit.

Considering the purpose of the rule announced in Dino and the undoubted firm and justifiable reliance upon the “totality of circumstances test” repeatedly approved by the courts of Louisiana and elsewhere, an extremely detrimental - effect upon the administration of justice would result from a retroactive application of the Dino rule requiring the release of all persons convicted on the basis of custodial interrogations under the totality of circumstances test.

For these reasons Dino will affect only those cases in which the trial began after June 15, 1978. ■

II. ■

By this argument defendant urges that the trial court should have suppressed the confession because at the time of the confession defendant was being detained in a lock-up in California intended primarily for adult offenders, allegedly in violation of statutes proscribing such conduct in Louisiana and California. When defendant was arrested in Victoriaville, he was brought to a police substation and questioned. After the interview, he was placed in a cell and left there for about four hours until he had a second interview, at which he confessed. The cell in which he was placed was part of a separate-block with a locking door, built so that the police could segregate juveniles from adult prisoners. Other than a trusty who delivered his food and cleaned an adjoining cell, defendant did not say that he saw any prisoners.

Although Louisiana’s statute stipulates that minors shall not be confined in either a police station or jail, it allows children fifteen years of age or older to be detained in a place of detention for adults, as long as they are in a room or ward separate from the adults. This was the situation in this case and the brief encounter with the trusty can hardly be considered a confinement “in association with criminal, vicious or dissolute persons” which the statute condemns. In any event the statute does not purport to invalidate a confession when its proscriptions are not observed, only to punish the peace officer who placed the juvenile there. Improper confinement is only one factor in the totality of circumstances test. State in the Interest of Wesley, 285 So.2d 308 (La.App.1973).

Minors who commit a crime in another state and flee to California are given less protection. They, other than for housing purposes, may be proceeded against as adults but must be detained in a juvenile hall if space is available, otherwise they may be confined in the county jail. Standard procedure in that state is to complete the initial investigation before transferring a minor to a juvenile hall.

III.

Proper application of the totality of circumstances test requires that the State sustain the burden of affirmatively proving that the waiver of rights was made freely and voluntarily, with understanding of the consequences which might flow from such a waiver. La.Rev.Stat. 15:451; State v. Hills, 354 So.2d 186 (La.1977). Age of the defendant is a factor which requires this Court to give closer scrutiny to the confession of a juvenile than would ordinarily be required of an adult confession. State v. Sylvester, 298 So.2d 807 (La.1974).

There is no claim here that the defendant was beaten or coerced, promised anything as an incentive, or induced to confess on these grounds. His contention is simply that he did not understand either his Miranda rights or the consequences of waiving them, so his attempted waiver is therefore invalid even under the pre-Dino totality test.

There is no litany of factors to be considered in applying the test. Each case is to be judged on all of the facts and circumstances in that particular situation. Obviously they will vary. At the suppression hearing these facts were adduced: Defendant is a fifteen-year-old minor, who completed 9th grade, and while average in math, was poor in reading. He and his brother were arrested at the residence of their sister where they were staying at 2:30 on the afternoon of June 3. In their mother’s presence they were informed that they were being arrested in connection with the theft of an automobile. Their mother was told that if she wanted further information, she would have to go to the police station. No mention was made at this time that the investigation involved murder. The boys were handcuffed and taken to the police station. On the way, they were read their Miranda rights from a standard police card. Both acknowledged that they understood their rights.

At the station defendant was “reminded” (but not read) of his rights, and asked if he understood them. When he responded affirmatively, the officers began questioning him about the car theft. After about thirty minutes, they told him that his father had been shot, and asked if he could tell them anything about it. When defendant became nervous, the questioning was discontinued. At no time did he demand to see either an attorney or his mother, the officers testified. Defendant’s testimony at the suppression hearing was to the contrary. He said that when the police began questioning him about the murder, he asked to see an attorney. When he did, the policeman said “Okay, but let me ask you a couple more questions,” according to defendant’s testimony, and they asked him about his name, age and other purely informational questions. It is uncontroverted that at no time thereafter did defendant ask to see his mother or an attorney. He said he did not because he understood the policeman’s response, “Okay,” meant they would obtain counsel for him. No further explanation of the Miranda rights was given or requested. The police were convinced that defendant thoroughly understood his rights.

Following this interview defendant was removed for booking and placed in a cell. While there the police interrogated his brother, who confessed and implicated defendant. Defendant testified that while he was in a cell, he talked to a man whom he supposed was a jailer (but was actually a trusty). The man told him that if he confessed, he would get three years at most. This testimony was not corroborated.

Defendant then sent for one of the detectives and asked if he could find out what his brother had said. He was told something to the effect that his brother had told everything, and about thirty seconds of the taped interview with his brother was played. He was again reminded of his rights and indicated that he understood them. Then, some six hours after being taken into custody, but after only forty minutes of interrogation, defendant made an inculpatory statement which was tape recorded. A short while later, about 10 p. m., his mother was allowed to see him. Some ten hours after his arrest, Louisiana officers arrived in California. Basing their questions on defendant’s prior statements, these officers questioned defendant after advising him of his rights. This confession was also recorded on tape.

These tape recordings were heard by the trial judge and in this Court. They show a careful, slow and deliberate interview, free of any hint of impropriety by the officers and expressing an unrestricted willingness on the part of defendant to disclose even the most minute details of the offenses. The recordings are the essence of voluntariness.

All of the circumstances support a finding of a free and voluntary confession. Defendant was no stranger to police procedure or contact with law enforcement authorities, having had several encounters with the law relating to juvenile delinquency. Within six weeks of these murders he had been in police custody on at least two occasions. He was arrested in his mother’s presence and given the Miranda warnings immediately thereafter. Four times thereafter he was reminded of these rights and acknowledged that he understood them.

The first interrogation lasted approximately 30 minutes, the second about 40 minutes. After his incarceration and prior to the first confession defendant was detained in a cell alone and was served a meal and permitted to rest.

In a ruling on the voluntariness of a confession the decision of the trial judge is assigned great weight. State v. Ross, 343 So.2d 722 (La.1977); State v. Payne, 338 So.2d 682 (La.1976). In a careful and thorough per curiam the trial judge who presided at the suppression hearing reviewed the evidence and the law pertaining to the evidence he heard. Many of the crucial questions involved credibility determinations which he resolved in favor of a finding that the confessions were free and voluntary. Our review of the evidence resolves the matter in favor of affirming that ruling.

For the reasons assigned, the convictions and sentences are affirmed.

TATE, J., dissents and assigns reasons.

DIXON, J., dissents.

DENNIS, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

I dissent for substantially the reasons that will be assigned by my brother DENNIS.

The rule announced in State in the Interest of Dino, 359 So.2d 586 (La.1978) was designed to insure integrity of the fact-finding process.

The decision recognized the questionable voluntariness and truthfulness of the confession of a juvenile, who responds to interrogation under police custody without consultation with an attorney or adult member of his family. The rule recognized the general unreliability of confessions of young persons (here, a 15-year-old boy), responding to interrogation while surrounded by adult police officers and secluded in police custody from the advice and counsel of adults who care.

Even adults, with more mature judgment and experience of the world, have been known to respond falsely in order to please their captors or to avoid the unknown but imagined terrors of a refusal to do so — witness Miranda and its prophylactic rule, designed to end the substantial danger in the administration of criminal justice of the use of false or coerced confessions in lieu of objective investigation in order to assure convictions.

In the present instance, the interrogation tactics appear to have been gentle and professional. There may be good reason to believe that, in this case, the confession of the defendant boy is not untruthful.

Yet Dino recognizes that children should not be sent to adult prisons for the rest of their lives on the basis of uncounselled confessions, inherently unreliable.

The reasons behind Dino demand, whether the confessions have been obtained before or after that decision, that it be applied to all confessions obtained from juveniles where they have not been permitted first to confer with adults of their family or a lawyer. That decision merely enunciated a protection for the integrity of the truth-finding process in prosecutions of juveniles of such obvious necessity that, even before Dino, many if not most enlightened law-enforcement agencies had already adopted the practice formally mandated by that opinion.

I therefore respectfully dissent.

DENNIS, Justice,

dissenting.

State in the Interest of Dino, 359 So.2d 586 (La.1978) set forth this Court’s view of what the prosecution must prove in order to show that a juvenile knowingly and intelligently waived his constitutional right to counsel and his privilege against self-incrimination before giving a confession. The prosecution bears a heavy burden of proving, not only that the waiver was made knowingly, intelligently and voluntarily, but also that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian or other adult interested in his welfare before waiving his rights. The majority opinion acknowledges this much of the Dino holding.

However, the majority opinion concludes that Dino’s standards of official conduct in the interrogation of juveniles have nothing to do with the integrity of the fact-finding process. In my opinion the majority has overlooked some of the important underlying reasons for the Dino decision and the realities from which they are derived.

In Dino we plainly stated three reasons why juveniles should not be allowed to waive their constitutional rights on their own. In addition to the main reason — to assure that the waiver itself is knowing, intelligent and voluntary — we set forth two other reasons which relate to the voluntariness of the juvenile’s confession, as well as to his waiver of rights. We said that “[i]f the juvenile decides to talk to his interrogators, the assistance of an adult can mitigate the dangers of untrustworthiness” and “the likelihood that the police will practice coercion;” and that “[t]he presence of such an adult can also help to guarantee that the accused gives a fully accurate statement and that the statement is rightly reported by the prosecution at trial.” 359 So.2d at 592.

It is evident, therefore, that the Dino rule does go to the integrity of the fact-finding process. When a confession is admitted into evidence it has such a persuasive effect upon the trier of fact as to substantially determine the outcome of the fact-finding process. Consequently, the determination of guilt or innocence is usually predetermined at the time the confession is obtained. See, State v. Glover, 343 So.2d 118,129 (La.1977); Comment, The Coerced Confession Cases in Search of a Rationale, 31 U.Chi.L.Rev. 313, 325 (1964). Obviously, then, the Dino rule, which seeks to insure trustworthiness, voluntariness and accurate reporting of juvenile confessions, is vitally concerned with the ultimate fact of guilt or innocence and the process by which it is determined.

Under our established principles of interpretation a new constitutional doctrine must be given complete retroactive effect when its major purpose is to overcome an aspect of the judicial proceeding which impairs its truth finding function and so raises serious questions about the accuracy of determinations of guilt in past trials. State v. Swift, 363 So.2d 499 (La.1978); State v. King, 347 So.2d 1108 (La.1977); City of Baton Rouge v. Short, 345 So.2d 37 (La. 1977); cf. Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

Since the major function to be served by Dino is the prevention of unfair determinations of guilt based on improvident or untrustworthy juvenile confessions, it is clear that Dino should be given complete retroactive effect.

Moreover, other factors which weigh against retroactive effect of a new constitutional doctrine do not apply to Dino. The extent of reliance on the old rule by Louisiana law enforcement officials was not significant and Dino’s impact on the administration of justice will not be severe. See, Williams v. United States, supra. The decision in Dino merely required by law a procedure already followed in practice by many Louisiana police officers. See, State in the Interest of Dino, 359 So.2d 586, 592-93 (La. 1978); Comment, Louisiana’s Youth Law: Rules and Practice, 35 La.L.Rev. 851, 856 (1975). The practice now required by Dino was foreshadowed in numerous state and federal decisions. In State v. Ross, 343 So.2d 722, 729 (La.1977), members of this Court noted that, in proceedings against juveniles, most investigating officers took the precaution of allowing a juvenile to confer with a family member before a waiver of his rights, and commended the procedure. As early as 1948, the United States Supreme Court recognized that a juvenile’s isolation from any friendly adult prior to police interrogation raised serious questions concerning voluntariness. See, Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948). See also, Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325. (1962).

For all of these reasons, but primarily because uncounselled guilty pleas by children substantially impair the truth finding functions of juvenile and adult courts, I respectfully dissent from the majority’s refusal to give complete retroactive effect to the constitutional rule announced in Dino.

      . La.Rev.Stat. 13:1577:
      “A. Whenever a child is taken into custody, unless it is impracticable or inadvisable or has been otherwise ordered by the court, he shall be released to the care of a parent, tutor or other custodian, upon the promise of such parent, tutor or custodian to bring the child to the court at the time fixed. The court may require a bond from such person for the appearance of the child; and upon the failure of such person to produce the child when directed to do so, the court may, in addition to declaring the bond forfeited, punish that person as in case of contempt. If not so released such child shall be taken immediately to the court or to the place of detention designated by the court or probation officer. Any police officer, sheriff, probation officer, or other peace officer violating any of the terms of this section may be judged guilty of contributing to the act or condition which would bring a child within the provision of this chapter. Pending further disposition of the case, the child may be released to the care of a parent, tutor, agency or other person appointed by the court, or be detained in such place as shall be designated by the court or probation officer subject to further order.
      “B. Nothing in this Chapter shall be construed as forbidding any peace officer from immediately taking into custody any child who is found violating any law or ordinance, or whose surroundings are such as to endanger his welfare. In every case the officer taking into custody any child for detention shall immediately and in any event within twenty-four hours, report the fact to the court or probation officer and the case shall then be proceeded with as provided by law. In addition, nothing in this Chapter shall be construed as forbidding any peace officer from taking into temporary custody during school hours any child who is required by law to attend school and is now exempted under the provisions of R.S. 17:226, where such child has absented himself or herself from school without proper authority, provided that the peace officer shall immediately place the child in a school facility or receiving center designated by the parish school board for acceptance of such child, or momentarily detaining any child from the age of seven through fifteen, both inclusive, who appears to be absent from school during normal school hours, and inquiring of the circumstances relative to his or her being absent from school.
      “C. Except as hereinafter provided, no child shall be confined in any police station, prison or jail, or be transported or detained in association with criminal, vicious or dissolute persons. A child fifteen years of age or older may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults.
      “D. Whenever a child under the age of seventeen years is taken into custody by a peace officer or probation officer, except when the child willfully misrepresents himself as seventeen or more years of age, such child shall be released within seventy-two hours after having been taken into custody, excluding non-judicial days, unless within said period of time a petition to declare him a delinquent or a child in need of supervision has been filed pursuant to the provisions of this chapter.
      “E. Whenever a child who has been held in custody for more than twelve hours by a probation officer, or law enforcement official of the state, city, parish or municipality and subsequently released and no petition is filed, the said official shall prepare a written explanation of the reasons why the child was held in custody for more than twelve hours. The written explanation shall be prepared within seventy-two hours after the child is released from custody and filed in the record of the case. A copy of the written explanation shall be sent to the parents, tutor, guardian, or other person having care or custody of the child.”
      Cal.Code Ann., Welfare & Institutions § 216(b):
      “(b) To any person who violates any law of another state defining a crime, and is at the time of such violation under the age of 18 years, if such person thereafter flees from that state into this state. Any such person may be proceeded against as an adult in the manner provided in Chapter 4 (commencing with Section 1547) of Title 12 of Part 2 of the Penal Code. The magistrate shall, for purposes of detention, detain such person in juvenile hall if space is available. If no space is available in juvenile hall, the magistrate may detain such person in the county jail.”


source: Caselaw Access Project

author: SANDERS, Chief Justice. DENNIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Leonard BARNES.
    No. 62186.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Jan. 26, 1979.
    Tillman & Mitchell, F. Clay Tillman, Jr., Leesville, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Vernon Parish Grand Jury indicted the defendant, Leonard Barnes, for distribution of heroin, a violation of LSA-R.S. 40:966 A. At his arraignment, the defendant, accompanied by his retained counsel, entered a plea of not guilty. Prior to trial, as a result of a dispute, retained counsel filed a motion to withdraw and subsequently a motion to have defendant declared an indigent. The Thirtieth Judicial District Indigent Defender Board moved to traverse the indigency of the defendant. The trial court held an evidentiary hearing, ruled that the defendant was not indigent, and denied counsel’s motion to withdraw. The defendant proceeded to trial with retained counsel. The jury returned a verdict of guilty as charged. The trial judge sentenced the defendant to life imprisonment and ordered him to pay a fine of two thousand dollars or serve six months in the parish prison if he failed to pay the fine. The defendant relies upon six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the sentence imposed upon him by the trial court exceeds that which is provided by the statute. As previously noted, the defendant was sentenced to six-months’ imprisonment in default of the payment of the fine. He contends that the trial court sentenced him to life imprisonment plus six months. Initially, we note that the court conducted a hearing concerning the indigency of the defendant and found that he was not indigent. LSA-R.S. 40:966 B(l) provides for a sentence of life imprisonment and a fine of not more than fifteen thousand dollars. Article 884 of the Louisiana Code of Criminal Procedure expressly authorizes an additional prison term of not more than one year in default of payment of a fine. In the case of a nonindigent defendant it is permissible to impose a prison term in default of a fine payment that would result in the defendant serving a longer term than the statutory maximum for the offense. State v. Lukefahr, La., 363 So.2d 661 (1978).

ASSIGNMENT OF ERROR NO. 2

The defendant argues that the trial court committed reversible error in denying the defendant’s certificate for the attendance of an out-of-state witness. The trial court in its per curiam relative to summoning an out-of-state witness stated, “Although there is authority for summoning of an out of state witness at the expense of the State even, perhaps, in a case in which the defendant is not indigent, there has been no prior showing herein that the testimony of the witness sought to be subpoenaed would be material or relevant.”

The trial court correctly relied upon our decision in State v. Chavers,, La., 294 So.2d 489 (1974), cert, denied 419 U.S. 1111, 95 S.Ct. 786, 42 L.Ed.2d 808 (1975). A defendant is entitled to summon at State expense the attendance of witnesses from outside the state, provided he makes a prior showing that the testimony sought is relevant and material. State v. Jenkins, La., 340 So.2d 157 (1976); U. S. v. Joseph, 533 F.2d 282 (5th Cir. 1976), cert, denied 431 U.S. 905, 97 S.Ct. 1698, 52 L.Ed.2d 389 (1977). The statute itself requires that the defendant show that the witness is material. Article 741 of the Louisiana Code of Criminal Procedure states in pertinent part:

“If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state, as a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness shall be required.” [Emphasis supplied.]

Although the motion to obtain the out-of-state witness recites that the witness’s testimony is relevant and material, it is bare of any facts supporting that conclusion. In order to reverse, we must find that the trial judge abused his discretion and that the witness was material. We find no basis in the record for disturbing the ruling.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant argues that the prosecutor committed reversible error in referring to a taped confession of the defendant in the presence of the jury. After the second reference, the defense moved for a mistrial. This denial of the motion for mistrial forms the basis of this assignment of error.

Prior to the opening statement by the State, the prosecutor filed a notice of intent as required by LSA-C.Cr.P. art. 768. He stated in the presence of the jury, “. I wish to file notice of intent and furnish a copy to defense counsel, of the State’s intent during the course of this trial to introduce certain tapes.” The counsel for defendant objected. Outside the presence of the jury, the trial judge noted that the State was not introducing the tapes at that time, but that the State was entitled to file its notice of intent.

Later, during the trial, the prosecutor stated, “The State does not intend to introduce or make reference to this particular taped statement that we are referring to in the notice of intent.” The defense objected and moved for a mistrial. Counsel argued that this statement, made in the presence of the jury, prejudiced the defendant. The defendant contends that the jury surely concluded that the taped statements were inculpatory statements of the defendant.

A review of the record shows that there was no suggestion in the presence of the jury that these statements were made by the defendant. Likewise, there was no reference that the statements were confessions or inculpatory statements. Hence, no prejudice resulted.

ASSIGNMENT OF ERROR NO. 4

During the State’s redirect examination of one of its witnesses, the prosecutor requested permission to bring all the witnesses into the courtroom to allow the witness to identify the State Trooper referred to in the witnesses’ testimony. Defense counsel objected, stating, “Your Honor, I object to this in-Court line-up. That’s what it amounts to. In reverse. Your Honor, if— uh, I think I would agree if he would just look at the people and after they go back in, he can tell us which one it was.”

The trial court followed the procedure suggested by defense counsel. The witnesses were brought in and then they filed out of the courtroom. After they left, the witness identified the trooper who was the subject of his testimony. Since there was no contemporaneous objection at trial to this procedure, this assignment is without merit. LSA-C.Cr.P. art. 841.

ASSIGNMENT OF ERROR NO. 5

At trial, the defendant testified in his own behalf. On direct examination, he testified that he had never dealt in heroin and that he was not a heroin addict. On cross-examination, the prosecutor asked the defendant to roll up his sleeves. The defense objected, stating that if there were track marks on the defendant’s arms, no foundation had been laid to show that they were the result of heroin addiction.

The trial court ruled that the defendant had to display his arms to the jury. The court noted that the State’s request was aimed at impeaching the defendant’s credibility. Each side is allowed to impeach the credibility of adverse witnesses. LSA-R.S. 15:486. When a defendant takes the stand he may be cross-examined as any other witness. LSA-R.S. 15:462.

The defendant argues in brief that the effect of the display was to show that the defendant committed other crimes. The record shows that the defense counsel opened the door to questions concerning the defendant’s use of heroin on his direct examination. The State had a right to rebut the defendant’s testimony on this subject. In criminal prosecutions, the court has required a defendant to exhibit his physical make-up: to put on a shirt, State v. Morgan, La., 333 So.2d 642 (1976); to exhibit a scar, State v. Anthony, La., 332 So.2d 214 (1976); to exhibit a tattoo, State v. Wilson, La., 329 So.2d 680 (1976); to show how he opens a cigarette package, State v. O’Conner, La., 320 So.2d 188 (1975); to show a bruise, State v. Washington, La., 294 So.2d 794 (1974); to stand and identify himself, State v. Jones, 261 La. 422, 259 So.2d 899 (1972); to give a handwriting sample, State v. Thompson, 256 La. 934, 240 So.2d 712 (1970); to give blood samples, State v. Du-gas, 252 La. 345, 211 So.2d 285 (1968), cert, denied 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691; and to allow his height to be measured, State v. Roy, 220 La. 1017, 58 So.2d 323 (1952).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Finally, defendant asserts that his counsel was ineffective.

The claim of ineffective assistance of counsel is properly raised by a petition for a writ of habeas corpus in the district court. This enables the district judge in a proper case to order a full evidentiary hearing on the matter. State v. Collins, La., 350 So.2d 590 (1977); State v. Anthony, La., 347 So.2d 483 (1977); State v. Daniels, La., 346 So.2d 672 (1977); State v. Ross, La., 343 So.2d 722 (1977); State v. Mouton, La., 327 So.2d 413 (1976).

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J. concurs.

DENNIS, J.,

concurs, but disagrees with the implication that track marks are admissible on same terms as general physical characteristics.


author: TATE, Justice. SUMMERS, J., DIXON, Justice SANDERS, Chief Justice MARCUS, Justice PER CURIAM.

text:
    Mary OLSEN, Plaintiff, v. SHELL OIL COMPANY, Defendant.
    No. 62522.
    Supreme Court of Louisiana.
    Nov. 16, 1978.
    As Corrected on Rehearing Denied Jan. 26, 1979.

      William P. Rutledge, Domengeaux & Wright, Lafayette, for plaintiff.
    John 0. Charrier, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, W. K. Christovich, Charles W. Schmidt, III, Christovich & Kearney, Patrick T. Caffery, Caffery, Duhe, Oubre & Gibbens, New Iberia, for defendant.
    Douglas A. Molony, Bernard J. Caillouet, Gene S. Palmisano, M. Truman Woodward, Jr., H. H. Hillyer, Jr., Wilson S. Shirley, Jr., James K. Irvin, M. Hampton, Carver, W. Richard House, Jr., Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, ami-cus curiae for Chevron U. S. A., Inc. and Exxon Corp.
   TATE, Justice.

The United States Court of Appeals for the Fifth Circuit certified to us for our opinion certain questions of state law. Olsen v. Shell Oil Co., 561 F.2d 1178 (1977). The certification was in accordance with the procedure authorized by La.R.S. 13:72.1 (1972) and Rule 12, Rules of the Supreme Court of Louisiana (1973).

Certain employees of a drilling contractor (“Movible”) were killed or injured, and they or their representatives sue to cover damages thereby sustained. As set forth more fully in Appendix 1 to this opinion:

The injuries and deaths resulted from the explosion of a water heater aboard a fixed drilling platform owned by Shell Oil Company situated in the Gulf of Mexico offshore of Louisiana. Pursuant to a drilling contract with Shell, Movible had attached (in such a way that burning and cutting of metal would be required to remove it) its modular drilling rig onto the platform, and a modular living unit to house Movible’s drilling employees. The explosion of the water heater which caused the injuries (and which was part of the living quarters) resulted from Movible’s failure to repair properly or to replace a pressure relief value of the heater after having been warned to do so by a safety engineer.

The issue before us concerns Shell’s liability for the injuries and deaths by reason of its ownership of the drilling platform. Louisiana Civil Code Article 2322 (1870). The Fifth Circuit, having determined that federal law requires the plaintiffs to look to Louisiana law for redress, found itself unable to determine whether Shell is liable under Civil Code Article 2322 and Louisiana jurisprudence thereunder.

Accordingly, that court certified five questions to us for our opinion as to state law applicable. Four questions query as to Shell’s strict liability as owner of the drilling platform, which are answered below in our discussion of liability and defenses under Civil Code Article 2322. In view of the conclusions we reach below as to Shell’s strict liability, the remaining question need not be answered by us.

I. LIABILITY UNDER CIVIL CODE ARTICLE 2322.

Article 2322 imposes liability upon the owner of a building to persons injured through its “ruin”, whether due to a vice in its original construction or through his neglect to repair it.

The owner’s fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid the creation of undue risk of injury to others. The owner is absolved from its strict liability neither by his ignorance of the condition of the building, nor by circumstances that the defect could not easily be detected. He is absolved from such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable. Article 3556(14), (15), (usually, an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency).

See: Klein v. Young, 163 La. 59, 111 So. 495 (1927); Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688 (1924); Barnes v. Beirne, 38 La.Ann. 280 (1886); Camp v. Church Wardens, 7 La.Ann. 321 (1852); Crawford v. Wheless, 265 So.2d 661 (La.App.2d Cir., 1972); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La. App.3d Cir., 1966); Green v. Southern Furniture Company, 94 So.2d 508 (La.App.lst Cir., 1957); Comment, 42 Tul.Law Rev. 178 (1967).

Under the terms of Article 2322, several requirements for the imposition of liability under the article must be met: (1) There must be a building; (2) the defendant must be its owner; and (3) there must be a “ruin” caused by a vice in construction or a neglect to repair, which occasions the damage sought to be recovered.

1. Is Shell’s Platform a “Building” Within the Meaning of Article 2822?

The word “building” as used in Article 2322 has received no clear jurisprudential definition. This court itself has never spoken directly to the question whether an oil derrick or drilling platform constitutes a building within the meaning of the article.

Nevertheless, some Louisiana jurisprudence indicates that an oil derrick is a building for purposes of imposing liability under the code article. Vinton Petroleum Co. v. L. Seiss Oil Syndicate, 19 La.App. 179, 139 So. 543 (1932). The United States Fifth Circuit Court of Appeals has relied on the Vinton decision, in holding that fixed offshore drilling platforms constitute buildings for such purposes. Mott v. Odeco, 577 F.2d 273 (1978); Moczygemba v. Danos & Curole Marine Contractors, 561 F.2d 1149 (1977); Mcllwain v. Placid Oil Company, 472 F.2d 248 (1973) certiorari denied, 412 U.S. 923, 93 S.Ct. 2734, 37 L.Ed.2d 150 (1973).

Without making specific reference to oil derricks, this court has made several observations as to what constitutes a building under the article. An inherent requirement is that there be a structure of some permanence. Mudd v. Travelers Indemnity Co., 309 So.2d 297 (La.1975). Also, the permanent structure need not be intended for habitation, for it to be considered a “building.” Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970). Additionally, we have held, for instance, that, for purposes of del-ictual responsibility under Article 2322, the word “building” encompasses a wharf or walkway over water which gave access and was attached to a camphouse. Cristadoro v. Von Behren’s Heirs, 119 La. 1025, 44 So. 852 (1907). See also Howe v. City of New Orleans, 12 La.Ann. 481 (1857).

The wording “building” in Article 2322 is translated from the word “bátiment” in its corresponding article of the French Civil Code, Article 1386. “Bátiment” is defined in Bescherelle’s Dictionnaire National (1844) as “a generic term designating all edifices public or private, regardless of the type material composing them, but most particularly those which serve as habitations.” (The writer’s translation.) Traditionally, French jurisprudence has interpreted the word “bátimént” broadly; according to an authoritative French treatise, numerous French authors consider it to include all works of man, synonymous with the word “construction” (including structures both movable and immovable, whether temporary or permanent). The treatise would more narrowly define the word, at least limiting it to immovables, and the tendency of modern French jurisprudence has been so to interpret the word more narrowly.

Louisiana Civil Code Article 464 (1870) provides that “buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.” See also Civil Code Articles 463 and 464, as re-enacted in 1978. In the context of the Louisiana Civil Code, a “building” is a type of permanent construction that would be classified as an immovable.

Without further defining the limits of a “building” within the meaning of Article 2322, it is sufficient for present purposes to hold that a permanent structure, such as the fixed drilling platform owned by Shell and which has a foundation in the soil, is indeed a building for purposes of that article, whether or not intended for habitation. This result is consistent with and analogous with our earlier holdings summarized above.

The defendant further argues that federal law dictates that we hold Shell’s drilling platform to be an island, and therefore an extension of the soil, rather than a building. In support of this thesis, the defendant cites Rodrigue v. Aetna, Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) and In Re Dearborn Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974).

We find no merit to this argument. The cited decisions concern a choice of law question, federal maritime law versus state law. They do not touch upon nor concern the classification of a drilling platform as land or soil rather than as a building.

As previously noted, the federal courts have reached, correctly, the same conclusion as we do now, i. e., that a drilling platform such as the present is a building within the meaning of Article 2322: See Mott, Moczy-gemba, and Mcllwain, cited above.

2. Is Shell the “Owner”, for Purposes of Article 2322 Liability, of the Defective Attachments to Its Drilling Platform?

By contract between Shell and Movible, Movible retained the ownership of its drilling rig and of its living unit attached to Shell’s drilling platform. (Movible’s modular living unit included the defective water heater as a component part thereof.) Much of the argument of both parties is addressed to this issue of ownership. Unquestionably, as between Shell and Movible, the latter remained the owner of its drilling rig and living unit.

The true issue, however, is whether by reason of this contractual circumstance, Shell is relieved of its obligation as owner of the “building” (i. e., the fixed drilling platform) for its strict liability under Article 2322 for injuries caused by any defect in it or its appurtenances.

Preliminarily, we note that “necessary appurtenances to structures and movables made immovable by attachment, which are defective or have fallen into ruin, also may be included within that term ‘building’ ” for purposes of the building-owner’s delictual responsibility under Article 2322. Cothern v. LaRocca, 255 La. 673, 232 So.2d 473, 477 (1970). See also Dunn v. Tedesco, 235 La. 679, 105 So.2d 264 (1958) (water heater). Thus, the Fifth Circuit has correctly held that the owner of a fixed drilling platform (a “building”) is liable for injuries resulting from a defect in an appurtenant drilling rig which (as in the present case) was welded onto the building by a drilling contractor which (as between itself and the platform owner) retained title to this appurtenant attachment. Moczy-gemba v. Danos and Curóle Marine Contractors, 561 F.2d 1149 (CA 5, 1977).

In attacking the conclusion reached in the cited Moczygemba decision, Shell argues that because its drilling contractor (Movi-ble) owned the living unit attached so as to become part of Shell’s building (the drilling platform), Shell cannot be held delictually responsible for defects in the living unit, insofar as sought to be based on the strict liability of an owner under Article 2322 for defects in its buildings or appurtenant or component parts thereof.

In our view, this argument overlooks the basis for the delictual obligation of the owner of a building for damages caused by defects in its structure or appurtenances:

“The obligation of every property owner to answer for damages for a failure to keep his property in such condition of repair that it will not be dangerous to other persons is imposed by law, by Articles 670, 2315, 2322 of the Civil Code.” Klein v. Young, 163 La. 59, 69, 111 So. 495 (1927). In Klein, this court held that, although the owner of the premises could by contract “allow another person to use the property for any particular purpose” and could thus regulate the rights as between owner and contractual occupant, the owner could not by such contract evade his obligation imposed by law to repair harm to others resulting from defects in his premises.

The decisions previously cited have imposed Article 2322 liability upon the owner of a building for defects in its appurtenant structures without consideration of whether the thing attached to a building has become an immovable by nature or by destination under property law concepts, and without consideration of whether there is unity of ownership of the building and its appurtenance. In the absence of another statute providing otherwise, the strict liability under Article 2322 of the owner of a building for harm caused by defects in its structure or appurtenances imposes a non-delegable duty upon him to keep his building and appurtenances in repair and to be responsible to third persons for harm caused by any defect in the structure or its appurtenances.

By contractual agreement between himself and the occupant who “owns” the appurtenance incorporated into the structure of the building, the owner of the building may regulate their relative ownership or duties of indemnification to one another resulting from injury to third persons. The owner cannot by such contract, however, limit his law-imposed liability to third persons for injuries arising from premise defects. Klein v. Young, 163 La. 59, 111 So. 495 (1927). For the same reasons, neither can he, by contractual agreement relating to the ownership of appurtenant parts by an occupier, absolve himself from liability to third persons from injuries resulting from premise-defects in any part of his premises, including in occupier-owned appurtenant parts attached to his building so as to become a part of it.

In view of this conclusion, we need not discuss Shell’s additional argument that no liability attaches to it because the modular living unit attached to its building (the drilling platform) did not become an immovable by nature under Civil Code Article 467 (1870; as amended in 1912), since it was attached to the building by a person (Movi-ble) other than the owner. Because the appurtenant living unit was part of the building for purposes of Article 2322, cf. also La.C.C. art. 508 (1870), it is immaterial whether it is technically immobilized or not under Article 467 (1972) for purposes of determining rights between Shell and Movi-ble and their respective creditors or purchasers.

3. Did the explosion of the water heater constitute a “ruin” of the building under Article 2322 so to impose liability upon the building’s owner for damages occasioned thereby 1

Shell argues that the explosion of the water heater, caused by the negligent failure of the occupier Movible to install the correct valve in it, is not a “ruin” of the building which was the result of a “neglect to repair” it or “a vice in its original construction”, as required by Article 2322.

We find no merit to this contention, for reasons stated in our previous discussion. There, we noted that Louisiana jurisprudence interpreting Article 2322 has held that the owner of a building has a non-dele-gable duty to keep his buildings and its appurtenances in repair so as to avoid unreasonable risk of injury to others, and that he is held strictly liable for injuries to others resulting from his failure to perform this duty imposed by law upon him. As likewise noted, the premise owner’s liability under Article 2322 extends to damages resulting from defects in appurtenances such as window fans and water heaters. See footnote 12 and surrounding text.

Shell’s reliance upon certain language in Davis v. Royal-Globe Insurance Co., 257 La. 523, 242 So.2d 839 (1970) is misplaced. That decision held that the owner-landlord was not liable for the lead poisoning of a tenant’s children who had eaten paint flakes which had fallen from the ceiling. The court felt that the intermittent peeling, flaking, and fall of paint particles to the floor did not constitute a “ruin” for purposes of Article 2322, since that term referred to “the actual fall or collapse of a building or one of its components”, 242 So.2d 841, or a situation “ ‘in which some part of the building collapses, or breaks, or gives way’ ”, 242 So.2d 842 (i. e., as compared to the intermittent falling of paint flakes from a ceiling).

Whatever the merits of that particular ruling, the decision did not in terms or context intend to modify the jurisprudence previously cited that an owner is liable under Article 2322 for injuries resulting from a defective condition which causes a breaking or explosion of an appurtenant or component part of the building.

II. DEFENSES RAISED TO LIABILITY UNDER ARTICLE 2322, IF FOUND APPLICABLE.

An owner may be exculpated from liability under Article 2322 for a premise-defect, if the victim is injured not, by reason of the defect, but instead because of the fault of some third person. See Loescher v. Parr, 324 So.2d 441, 445 (La.1975), and decisions therein cited.

On this basis, Shell claims exculpation. It argues that the damages were in fact caused by the intervening fault of a third person, its independent contractor Movible, which negligently failed to repair the defective water-heater valve.

We have previously noted that the owner has a non-delegable duty imposed by Articles 670 and 2322 to keep his building in repair and free of defects constituting an unreasonable risk of injuries to others. The owner’s agreement with or reliance upon a contractor or tenant to perform this duty imposed by law on him, the owner, does not constitute that contractor or tenant a “third person” for purposes of exculpating the owner from his liability under these code articles. See: Klein v. Young, 163 La. 59, 111 So. 495 (1927); Camp v. Church Wardens, 7 La.Ann. 321 (1852).

The latter decision holds that, insofar as the victim is concerned, the owner is liable because of his obligation imposed by the code articles (“from the policy of the law alone”, 7 La.Ann. 325), but the contractor also may be held liable for his independent fault in the construction. Somewhat similarly, the analagous strict liability under Article 670 (1870) of a proprietor not to make any work on his land which causes damage to his neighbor, imposes responsibility for such damages upon both the proprietor and his independent contractor performing the work. Lombard v. Sewerage & Water Board, 284 So.2d 905 (La.1973); D’Albora v. Tulane University, 274 So.2d 825 (La.App.4th Cir. 1973).

The fault of a “third person” which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321, and 2322 is that which is the sole cause of the damage, of the nature of an irresistible and unforeseeable occurrence — i. e., where the damage resulting has no causal relationship whatsoever to the fault of the owner in failing to keep his building in repair, and where the “third person” is a stranger rather than a person acting with the consent of the owner in the performance of the owner’s non-delegable duty to keep his building in repair.

See: Mazeaud and Mazeaud, Traite Theo-rique et Pratique de la Responsibilite Civile, Delictuelle et Contractuelle, Sections 1068-70 (pp. 51-53), Sections 1622-85 (pp. 74-80), especially Sections 1622, 1630, 1637, 1644, 1646-48, 1652 (6th ed. 1970).

In view of this conclusion, we find no merit to the defendant’s argument that the building-owner might somehow be exculpated from his liability under Article 2322 to keep the building in safe repair, because the damages could be said to result (also) from the negligence of an independent contractor in performing work on a part of the premises within its control.

The argument is based upon expressions in certain decisions by the intermediate courts: Temple v. General Insurance Co., 306 So.2d 915 (La.App.lst Cir. 1968); Vin-ton Petroleum Co. v. L. Seiss Oil Syndicate, 19 La.App. 179, 139 So. 543 (1st Cir. 1932). Temple and Henson dealt with the liability of the premise-owner for injuries to a construction employee resulting from the negligence of the independent contractor or his subcontractor employed to perform construction work, while Vinton by way of dicta indicated the owner might not have been liable if the person employed to dismantle a drilling rig (which fell and caused the damage) were an independent contractor instead of an employee of the owner.

As the Fifth Circuit noted, in certifying the present questions to us, the rationale in these decisions is unclear and, if interpreted as Shell desires, is inconsistent with other Louisiana jurisprudence imposing a non-del-egable strict liability upon an owner under Article 2322 regardless of whether he retains control of his premises. Olsen, cited above at 561 F.2d 1190-94. To some extent, the uncertainty of rationale results from a failure to note that the strict liability under Article 2322 of the owner of a building for damages resulting from his non-delegable duty to keep it in repair, is based upon a totally distinct theory of liability than is that under Article 2320 of a master for the negligent torts of his servants.

In Camp v. Church Wardens, 7 La.Ann. 321, 325 (1852), this court early recognized this distinction, in rejecting contentions similar to those now advanced by the defendant: “That these provisions [the provisions of Article 2302 (1825), the verbatim predecessor of Article 2322 (1870)] are entirely independent of the general rules concerning the responsibilities of masters and employers, and not in any manner connected with their relations, is shown conclusively by their place in the code. These articles are in the same chapter, and follow immediately that which provides for the latter, which is numbered 2299 [(1825), the verbatim predecessor of article 2320 (1870)]. They are evidently founded in an enlightened view of public necessity. They protect the neighbor; the passenger in the street; and it would be singular, indeed, if the men at work at the building were excluded from their just and salutary operation.”

III. IS SHELL’S LIABILITY UNDER ARTICLE 2322 AFFECTED BY THE CIRCUMSTANCE THAT THE UNDERLYING SOIL UPON WHICH IT RESTS IS OWNED BY ANOTHER?

In the context of our civil code, a building may be an immovable separate and distinct from the land upon which it is situated, when it is owned separately from the ownership of the land. Article 464 (1870); see 1978 re-enactment of Article 464 expressly so providing, and its Official Revision Comment (b) citing jurisprudence interpreting to this effect the former version of the article. See also Yiannopoulos, Civil Law of Property, Section 46 (Louisiana Civil Law Treatise, Volume 2; 1966).

We are cited to no persuasive authority or functional reason by which the owner of a building would be exculpated from his liability under Article 2322 for premise-defects in his building, simply because the soil upon which it is situated is owned by another.

Conclusion

Accordingly, we answer the certified questions (see footnotes 3 and 4) as follows:

Question 1: Yes.
Question 2: Not necessary to answer, in view of our previous answer. See also footnote 15 above.
Question 8: Yes.
Question 4: Yes.
Question 5: Yes.

Pursuant to Rule 12, Section 8, Supreme Court of Louisiana (1973), the judgment rendered by this court upon the questions certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals for the Fifth Circuit and to the parties.

CERTIFIED QUESTIONS ANSWERED.

DIXON, J., concurs with reasons.

SANDERS, C. J., dissents and assigns written reasons.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J.,

dissents.

APPENDIX 1

As set forth in the opinion of the Fifth Circuit, the full facts are, 561 F.2d 1178, at 1180-81:

On May 6, 1970, a hot water heater explosion occurred aboard a fixed platform owned by Shell Oil Company in the Gulf of Mexico off the coast of Louisiana. The platform was designated as Shell’s “C” platform, and drilling was being conducted from the platform by a drilling contractor known as Movible Offshore, Inc. (Movible). The individual plaintiffs in this case are the legal representatives of men killed in the explosion, except for Gordon Wallace who sues for personal injury. The plaintiffs were all employees of Movible.
To conduct the drilling operations from the platform, Movible had located its modular and movable drilling rig on the platform. The rig consisted of all equipment necessary to drill a well, including a derrick or mast, drawworks, the very large engines which were necessary to power the drilling equipment, and all normal appurtenances to a drilling operation. In addition, Movible had its modular living quarters on the Shell platform which provided a galley area for feeding the men, sleeping quarters, shower and bathroom facilities, and a lounge area. The living quarters unit was equipped with two electric water heaters. One water heater was located in the galley area, and another was located in the pantry area. These water heaters were Movible equipment and were wholly owned, as was the living quarters unit, by Movible. The modular living unit was fully movable, and when the rig was moved from one platform to another, it was picked up as a unit by a derrick barge and then transported to a new site and secured on a platform in such a way that cutting and burning of metal would be required to remove it.
Under the working arrangement in effect between Shell and Movible, two Movible drilling crews consisting of six men each worked opposite shifts so that the drilling-rig could be kept in operation 24 hours a day. Shell performed none of the actual operations on the rig and had only one permanent representative there.
At the time Movible began drilling for Shell from Platform C or shortly thereafter, Movible took out liability insurance with Pacific Employers Insurance Company (Pacific), an affiliate of the Insurance Company of North America. In addition to providing liability insurance to Movible, Pacific agreed to provide a safety engineering and safety inspection service to Movible. This service was provided largely through one Gilbert Stansbury, a safety and technical representative of Pacific.
In connection with the safety engineering and technical service provided by Pacific, Mr. Stansbury was to visit the Movible rig on a quarterly basis. Mr. Stansbury first visited the rig on January 23, 1969, and then he did not revisit the rig until October 7, 1969. On his first visit, Stansbury inspected the water heaters in the company of Movible’s toolpusher, a Mr. Desormeaux.' At this time, he recommended (among other things) that a pressure-temperature relief valve be placed on the water heaters in question in place of the existing pressure relief valves. Movible failed to accurately follow the recommendation of Mr. Stans-bury, although they should have understood the recommendation since prior insurers had made the same or similar suggestions and Stansbury himself had made the same recommendation during inspections of other Movible rigs. Instead of ordering the proper type of “pressure-temperature” relief valve, Movible ordered and installed another pressure relief valve.
The valves were replaced on February 3, 1969. Mr. Desormeaux inspected the heaters after the installation of the valves and concluded that “everything looked okay.” On October 7, 1969, Stansbury returned to the rig and interviewed another Movible toolpusher who had since replaced Mr. Desormeaux. Mr. Stans-bury did not make a visual inspection of the water heater but relied on the toolpusher’s assurances that his recommendations had been followed. As a result, Stansbury reported that all his recommendations had been fulfilled.
On May 6, 1970, the hot water heater located in the pantry of the living quarters exploded resulting in many deaths and injuries. The trial judge found that the bottom of the hot water heater ruptured as a result of great pressure which built up in the tank. Then, the great explosive force was created when the water in the heater, which was “superheated” to a temperature of above its boiling point of 212°F., instantly “flashed” into steam when freed from the pressured confines of the tank and just as instantly expanded to more than 1,000 times its liquid volume.
The trial judge further found that the fact that an improper valve was in use on the heater was a proximate cause of the explosion. All the experts agreed that the pressure valve which Movible mistakenly placed on the hot water heater was not specifically designed for that use. While the exact cause of the explosion could not be conclusively determined, there is no doubt that had a working temperature pressure relief valve been in place, the accident would have been prevented. The recommended type of valve is designed to relieve excess pressure and temperature, both of which contributed to the explosion of the hot water heater.

DIXON, Justice

(concurring).

I respectfully concur in the conclusion reached by Justice Tate, but would narrow one issue somewhat.

Ownership of the living unit attached to Shell’s drilling platform is not the essential inquiry. We need only determine whether an owner of a building may allow another to make an attachment to the structure (from which attachment the owner intends profit to himself) and escape responsibility for the damage when the building is ruined by a malfunction in the attachment.

The public policy of this State, as embodied in C.C. 670, 2315 and 2322 requires the owner to answer in damages if he maintains his property in such a manner as to cause harm to others. Klein v. Young, 163 La. 59, 111 So. 495 (1927); Camp v. Church Wardens of the Church of St. Louis, 7 La. Ann. 321 (1852). Moreover, the owner cannot evade this responsibility through contractual arrangements, except with respect to the actual parties to the agreement. Klein v. Young, supra. (Although R.S. 9:3221 allows a deviation from this principle for leased premises, no lease is involved here).

The advantage to Shell from the attachment of the rig and living quarters is evident: unused drilling platforms return no profit. The responsibility for damage occasioned by the platform and its attachment is the converse of the advantages which accrue to Shell from owning the structure. See Starck, The Foundation of Delictual Liability in Contemporary French Law, 48 Tul.L.Rev., 1043, 1055 (1974); Prosser, Law of Torts, § 69 (4th ed. 1971).

SANDERS, Chief Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice Marcus.

MARCUS, Justice

(dissenting).

While I agree with the majority opinion that Shell’s platform is a “building” within the meaning of La.Civil Code art. 2322, I am unable to agree with the other conclusions reached by the majority.

A threshold requirement for the imposition of strict liability under article 2322 is that the building be owned by the party against whom liability is claimed. Our law recognizes that buildings or other constructions are separate immovables when they belong to a person other than the owner of the ground. La.Civil Code art. 464. Everything incorporated into a building or other construction becomes immovable without regard to ownership. See La.Civil Code art. 465, Comment (c). There is, however, a distinction between the classification of a building or other construction as an immovable and the determination of the ownership of that building or other construction. Ownership is the right by which a thing belongs to someone in particular, to the exclusion of all others. La.Civil Code art. 488. La.Civil Code art. 504 provides, as a general rule, “[a]ll that which becomes united to or incorporated with the property, belongs to the owner of such property, according to the rules hereafter established.” The presumption of ownership contained in article 504 may, however, be rebutted by proof that a construction is owned separately from the soil or that any part of the building is owned separately from the rest of the building. See La.Civil Code art. 506. Such proof is undisputed in this case that Movible owned the living quarters module separately from Shell’s ownership of the platform. Hence, pursuant to article 2322, Movible, as owner of the living quarters module, had the obligation to maintain or repair its building so as to avoid creation of risk of injury to others resulting from neglect to repair or vice in original construction. See Loescher v. Parr, 324 So.2d 441 (La.1975). By imposing this obligation on Shell, who had no ownership interest in the living quarters module, the effect of the majority opinion is to extend the strict liability concept of article 2322 to non-owners as well as owners of buildings in contravention of the intent and express language of article 2322.

Moreover, even assuming for the sake of argument the majority’s erroneous characterization of Shell as the owner of the living quarters module, I would still be unable to agree with the majority’s designation of the explosion of the water heater as a “ruin” of the building within the contemplation of article 2322. In Davis v. Royal-Globe Insurance Cos., 257 La. 523, 242 So.2d 839 (1970), this court defined the meaning of the word “ruin” as used in article 2322:

The ‘ruin’ contemplated by this Article has reference to the actual fall or collapse of a building or one of its components. This is the attitude in the French law .. And to satisfy the meaning of ‘ruin’ as used in Article 2322 the fall or collapse must involve a more or less substantial component of the structure. The English text of the Louisiana Code of 1808 translates ruine as ‘falling down.’ Comment, 42 Tul.L.Rev. 178, 184 (1967). Article 2322 is considered a reiteration of the principle that the building must ‘fall’ expressed in Article 670 of the Civil Code, except that it permits recovery by third persons lawfully on the premises, whereas Article 670 limits the owner’s responsibility to neighbors and passers-by.

It is thus apparent that the explosion of a water heater is simply not a “ruin” of the living quarters module due to “neglect to repair” or “a vice in its original construction” under article 2322 and this court’s jurisprudence interpreting this article.

In sum, it is my opinion that Shell was neither the owner of the living quarters module nor was the explosion of the water heater, a “ruin” within the meaning of article 2322. Accordingly, article 2322 has no application in the determination of Shell’s liability, if any, under the facts presented. I, therefore, respectfully dissent.

On Application For Rehearing

PER CURIAM.

We delete from our original opinion the phrase “by a drilling contractor which (as between itself and the platform owner) retained title to this appurtenant attachment”, 365 So.2d 1291. This was unnecessary to our opinion, and the Fifth Circuit in Moczygemba, did not consider the issue of ownership. Although that decision’s published opinion does not so reflect, the defendant has called to our attention a pretrial order in the unpublished district court opinion which indicates that the quoted statement in our original opinion is incorrect.

With this correction, the defendant’s application for rehearing is denied.

APPLICATION FOR REHEARING DENIED.

SUMMERS, C. J., and MARCUS, J., would grant.

BLANCHE, J., not participating.

      . La.C.C. art. 2322 provides: “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

      . The Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1953) makes Louisiana law applicable to fixed offshore platforms. Ro-drigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).

      . These four questions are:
      (1) Whether the owner of an offshore drilling platform can be held strictly liable pursuant to Article 2322 of the Louisiana Civil Code absent the existence of intrinsically dangerous work and absent the exercise of control of the premises — when employees of an independent contractor hired by the owner are injured while on the platform by the explosion of a hot water heater located in the living module which caused part of the platform to fall or collapse, and when the employees are on the platform for the purpose of conducting drilling operations and not for the purpose of repairing or constructing the platform or any appurtenances or attachments thereto.
      (3)Whether injuries sustained by an employee of an independent contractor are the result of “ruin” of the building within the meaning of Article 2322 of the Louisiana Civil Code, when the fall or collapse of the building is caused by the explosion of a hot water heater attached to the living module of the platform.
      (4) Whether a modular and movable drilling rig which is attached to an offshore drilling platform in such a manner that cutting and burning would be required to remove it, and which is not owned by the owner of the platform to which it is attached, constitutes an “immovable by attachment” within the meaning of Cothem v. La Rocca, 255 La. 673, 232 So.2d 473, 477 (1970), and as applied to Article 2322 of the Louisiana Civil Code.
      (5) Whether an owner of an offshore drilling platform can be held strictly liable pursuant to Article 2322 of the Louisiana Civil Code for injury sustained upon the platform, even though ownership of the underlying soil is not vested in the owner of the platform.

      . The remaining question certified to us is:
      (2) Assuming that an owner cannot be held strictly liable to employees of an independent contractor without the existence of an intrinsically dangerous activity, whether drilling for oil on an offshore drilling platform constitutes “intrinsically dangerous work” within the meaning of Vinton Petroleum Co. v. L. Seiss Oil Syndicate, Inc., 19 La.App. 179, 139 So. 543 (1st Cir. 1932), and as applied to Article 2322 of the Louisiana Civil Code.

      . See also Civil Code Article 670: “Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers [passers-by], under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”

      . 2 Mazeaud & Mazeaud, Traite Theorique Practique de la Responsabilite Civile, Vol. 2, et Section 1039, pp. 26-29 (6th ed. 1970).

      . For a general discussion of the meaning of the word, see Mazeaud, id.; Comment, Article 2322 and the Liability of the Owner of an Immovable, 42 Tul.L.Rev. 178, especially 182-84 (1968).

      . It should be pointed out that, even if we were to hold that the platform is not a “building” within the meaning of Article 2322, it would not necessarily follow that the defendant is free from liability. While Article 2322 provides a special rule of strict liability for buildings, Article 2317 provides the general rule of strict liability for “things.” See, Loescher v. Parr, 324 So.2d 441 (La.1975).

      . According to this characterization, Shell would be the owner of the “land" or “soil” upon which Movible affixed a building. It could not therefore, it is argued, be subject to the liability of the owner of a building.

      .The question addressed in the cited cases was whether fixed drilling platforms located beyond the three mile limit should be characterized as vessels, in which case the law applicable to actions for death on the rig would be the Death on the High Seas Act, 46 U.S.C. § 761 et seq. (1920), or instead as artificial islands, in which case the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1953), would provide the applicable law. In Rodrigue, the United States Supreme Court interpreted the Outer Continental Shelf Lands Act to mean that these structures were to be treated as though they were federal enclaves in an upland state so that federal law, supplemented by the state law of the adjacent state controlled in death actions. The language of the decision clearly indicate that the court did not contemplate characterizing the rigs (fixed structures in the nature of artificial islands) as “land” as opposed to “buildings” for purposes of either federal or state law.

      . By the questions presented, we are not required to address the issue of any concurrent liability under Articles 2315-17 or 2322 of Movible for the defective part of Shell’s “building” under its control (and owned by Movible, per contractual agreement between Shell and Movible).

      . Other Louisiana cases which have held the owner of a building liable under this “appurtenance doctrine” include, for instance, Adamson v. Westinghouse Electric Corp., 236 So.2d 556 (La.App.1970) (elevator), Fontenot v. Sarver, 183 So.2d 75 (La.App.1966) (window fan), and Murphy v. Fidelity and Casualty Co., 165 So.2d 497 (La.App.2d Cir. 1964) (electrical wiring).

      . There are two competing notions of the theoretical basis of the strict liability of the owner for the harm caused by his building, the “fault” theory and the “risk” theory. For a general discussion of these competing theories, see Starck, The Foundation of Delictual Liability in Contemporary French Law, 48 Tul.L.Rev. 1043 (1974); Comment, Article 2322 and the Liability of the Owner of an Immovable, 42 Tul.L.Rev. 178, especially footnotes 3, 22, and 53.
      Basically, the “fault” theory is that even though we hold the owner of the building strictly liable, this liability is based on his “fault” in failing to attend to his building. For a thorough discussion of this theory, see Ma-zeaud and Mazeaud, Traite Theorique et Pra-tique de la Responsibilite Civile, § 1063-1070, pp. 48-53 (6th ed. 1970).
      The “risk” theory is based on the notion that, even though the owner may have a right of indemnification against some third person, he must bear the primary responsibility for damage caused by the building as the quid pro quo for the advantages and powers of ownership of the building. This theory of liability is quite similar to the notion of “enterprise liability”, which reflects a policy determination that the person or entity that causes risk to the public through some enterprise should be responsible for the damage caused by the enterprise so that the cost of the damage will be allocated as an expense of the enterprise. See, Prosser, Law of Torts, Section 69 (4th ed. 1971).

      . The revision of Article 467 in 1912, upon which Shell relies, had as a primary purpose to protect, against the landlord’s creditors and purchasers, the interest of tenants in incidental attachments to a building made for their own convenience. Yiannopoulos, Civil Law of Property, Section 47 (Louisiana Civil Law Treatise, Volume 2; 1966); Comment, 20 La.L.Rev. 410, 413 (1960). The immobilization issue raised by Shell would, if applicable, include a consideration of whether the attachment of the living unit and drilling rig to the platform was of so substantial a nature as instead to be the incorporation of them into the building as an integral and component part of it, Civil Code Article 464 (1870); cf. Article 465 (1978), and of whether the substantial attachments in question were within the terms and intent of Article 467 (1912) or met certain technical requirements of that code article, insofar as it inhibits the immobilization which would normally flow from attachment to the building. See Yianno-poulas, cited above, id.

      See also La.Civ.Code Article 466 (1978).

      . See especially Section 1652 of the Mazeaud treatise, cited at the conclusion of the paragraph in the text as authority for its statements.
      Thus, the owner or custodian of a defective building, thing, or animal is not relieved of his responsibility and strict liability to a victim injured thereby by the circumstance that the fault or negligence of a third person contributed to the injury, unless the intervening third person’s act or fault is in the nature of a superseding cause in Anglo-American tort law. See Restatement of Torts, 2d, Sections 440-453 (1965). The considerations for determining that an intervening act or force is a superseding cause of the harm, as to which the actor’s antecedent fault was a substantial causal factor, include, for instance, that the harm is different in kind than that would have otherwise resulted, that it is of an extraordinary nature or operates independently of any situation created by the actor’s fault, Section 442; but the intervening act or force is a concurrent rather than superseding cause when the fault of the actor created or increased the foreseeable risk of harm through such an intervening act, or when such intervening act is a normal and non-extraordinary consequence of the situation created by the actor’s fault, Sections 442A, 443, 447.

      . The usual rule is that the vicarious tort liability of an employer-master for the torts of his employee-servant does not extend to liability for the torts of an independent contractor hired by the master. Prosser on Torts, Section 71 (4th ed. 1971). Nevertheless, even here tort doctrine recognizes that the master-employer may be liable for damage caused by his independent contractor in performing inherently dangerous duties, Id., pp. 472-74, or a non-dele-gable duty owed by the master-employer to the plaintiff, Id., pp. 470-72.
      As the text of our opinion indicates, whatever the validity of these distinctions in determining tort liability under master-servant and independent contractor law, they play no function with regard to enforcing against a premise-owner the strict liability of Article 2322 for premise-defects, or of exculpating him from it.

      . The Louisiana Civil Code of 1870 established three categories of immovables: immovables by nature, immovables by destination, and im-movables by the object to which they are applied. La.Civil Code art. 463 (1870). Buildings and other constructions were thus’classi'fied as immovable by their nature. La.Civil Code art. 464 (1870). By amendment to the civil code, the various categories of immovables by nature have been eliminated and a single category of
        corporeal immovables has been substituted therefor. 1978 La.Acts 728. These amendments, however, have no effect upon the determination of ownership of a particular immovable.

      . Having concluded that Shell is not liable pursuant to article 2322, I would find it unnecessary to consider whether the fault of a third person (Movible) relieves Shell of liability under article 2322 or whether liability under article 2322 is affected by the circumstance that the underlying soil upon which a building rests is owned by another. In addition, because the certification from the Fifth Circuit was limited to questions pertaining to Shell’s liability under article 2322, it is unnecessary to consider Shell’s liability, if any, under other articles of our code.