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Gradle v. Doppelmayr USA4/19/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION ON REMAND
Plaintiff Ronald Gradle fell into the machinery of a ski lift and lost his leg. He and his wife brought suit against Doppelmayr USA, Inc., the company that designed and provided the equipment for the retrofit of the ski lift, alleging a design defect and negligence. The jury returned a verdict for Doppelmayr. The Gradles appealed, contending the trial court erred in excluding evidence of California Occupational Safety and Health Act (Cal-OSHA) rules and regulations to establish negligence per se, in excluding Doppelmayr's notice of motion for summary judgment, which they wanted to use as an admission to impeach an expert witness, and in finding a settlement offer of $25,000 was reasonable and awarding Doppelmayr expert witness costs of $70,373 under Code of Civil Procedure section 998.
We reversed the judgment, finding that under amended Labor Code section 6304.5, evidence of Cal-OSHA standards are now admissible to establish negligence per se except as against the state for violation of a mandatory duty. The California Supreme Court granted review and transferred the matter back to this court to vacate our decision and reconsider in light of Elsner v. Uveges (2004) 34 Cal.4th 915. On remand, we conclude that although amended Labor Code section 6304.5 now permits the admission of Cal-OSHA standards to establish negligence per se, the amended statute cannot be applied retroactively to this case in which the accident arose prior to the statutory amendment. We find, however, that the trial court abused its discretion in awarding Doppelmayr expert witness fees as costs, and reverse the award of costs.
FACTUAL AND PROCEDURAL BACKGROUND
Following a serious accident, involving the failure of a Yan detachable chair lift, at Whistler in British Columbia, California required all Yan lifts be modified. Mammoth Mountain Ski Area contracted with Doppelmayr to modify their four Yan lifts, including lift J-6 at June Mountain. The retrofit involved converting the Yan detachable grip system to a Doppelmayr detachable grip system. Doppelmayr provided the design and engineering for the retrofit, and new sheave assemblies, grips, chairs and hangers, and machinery for the terminals.
Ronald Gradle worked for Mammoth Mountain as the electrical supervisor at June Mountain. He was a good, safe employee, with an impeccable record. When he went to work on the morning of January 5, 1997, it was cold, windy and snowing with ice. There was a problem with the proximity switch on lift J-6. The proximity switch prevents two chairs from being in the safety zone at the same time to avoid collisions. Gradle adjusted the switch at the bottom of the lift while the lift was stopped. He then took a snowmobile to the top of the lift.
A mechanic asked Gradle if he wanted the lift stopped and Gradle said no. Gradle climbed into the operator shack at the terminal. There was a three and a half foot high tub wall that was a barrier to the machinery. Gradle climbed on top of the tub wall and made his way to the switch. There was snow and ice on the top of the tub wall. Gradle yelled to the mechanic, who was 20 feet away, to take the lift to start speed and then stop it. The mechanic replied, "okay," but apparently did not hear the command to stop the lift. Gradle squatted on top of the tub wall waiting for the lift to stop and slipp
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