Massok

MEMORANDUM **

Plaintiff Anthony Massok was injured when he fell from a ladder while hanging Christmas lights on his house. He brought a product liability action against the manufacturer of the ladder, defendant Keller Industries, Inc. and related companies (Keller), in California state court. Following removal to federal district court, the district court judge excluded certain pieces of evidence introduced by Massok, determined that Massok was not entitled to a jury trial and finally granted defendant Keller judgment as a matter of law. Massok now appeals these rulings. We affirm in part, reverse in part and remand for a jury trial on the merits.

I. BACKGROUND

This case stems from an unfortunate incident of holiday decorating gone wrong. Plaintiff Anthony Massok fell from a ladder while hanging Christmas lights on the roof of his home on December 5, 1999 and sustained serious injuries. The ladder was a Model 3116 extension ladder manufactured by Keller. Massok had owned the ladder since 1995 and had not encountered any prior problems in using it.

The ladder has two sections: (1) a base and (2) a fly that attaches to the base and extends to add length to the ladder. The base…

concurring in part and dissenting in part.

I agree that the expert testimony was properly excluded, but disagree that the judgment entered as a matter of law should be reversed and that the district court abused its discretion when it refused to admit the brochure and photographs of other ladder feet.

I do not believe that the theory posited by Massok for the defect in the ladder— the structure of the ladder’s articulated foot — is properly the subject of the consumer expectation test. The consumer expectation test is only appropriate where a juror can use his or her own everyday experience to determine whether the product’s design violates minimum safety assumptions. Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607 , 882 P.2d 298, 308 (1994); Campbell v. General Motors Corp., 32 Cal.3d 112 , 184 Cal.Rptr. 891 , 649 P.2d 224, 232-33 (1982). I do not think that the way in which the foot of the ladder articulates to support the ladder’s position, the anti-slip properties of the plastic on the foot, or whether or not setting up the ladder backwards fatigued the plastic on the foot so that it cracked and gave out from under Mr. Massok, are within the ordinary…