Bruce Pollock v. Koehring Company, a Corporation, Industrial Indemnity Company, Intervenor-Plaintiff-Appellant v. Koehring Company, a Corporation

MEMORANDUM

Pollock sued Koehring in the California superior court for strict liability in tort involving an allegedly defective design and manufacture of a plastic injection molding machine. He was injured while loading the machine. Koehring removed the case to the district court based upon diversity of citizenship. Industrial Indemnity filed a complaint in intervention as the workman’s compensation carrier of Pollock’s employer, Pam-Pro Plastics, to protect its lien for benefits paid to Pollock. In a bifurcated trial, the jury returned a verdict on the liability issue in favor of Koehring.

Pollock raises three issues on appeal: (1) whether the court erred in giving its instructions on Pollock’s burden of proof and in refusing to give the instruction proposed by Pollock on the subject; (2) whether the court erred in refusing to give Pollock’s proposed instruction on the effect of violation by Koehring of a California industrial safety order; and (3) whether the court erred in instructing the jury on “alteration” of the machine and proximate cause. Issues 2 and 3 are without merit, but we reverse based upon issue 1.

The district judge erred in his instructions on burden of proof…