On Jan. 17, 2011, plaintiff Steven Richards, 59, a self-employed heavy equipment appraiser/estimator, was at a store and repair facility owned by Peterson Tractor Co. in order to inspect damage to the engine of an excavator. As part of his inspection for an insurance company, Richards climbed up to the machine engine compartment to take photographs of the damage. However, he lost his balance while standing on the excavator tracks, which was located approximately 36 inches above the ground. Richards, who weighed approximately 300 pounds, was supported by Jim Lanphear, the shop manager who was behind him, until Richards was able to right himself and continue to climb onto the excavator deck to photograph the engine damage. However, Richards claimed he hyperextended his left arm when he grabbed onto the grab bar of the excavator when he lost his balance. Richards sued the owner of the facility, Peterson Tractor Co., and the Peterson shop manager, Jim Lanphear (who was erroneously sued as Jim Lansford). Richards claimed that after he finished photographing the engine damage, Lanphear directed him to stay on the deck of the excavator while Lanphear went to retrieve a platform ladder for him to use to get off the machine. Plaintiff’s counsel contended that Peterson was negligent, and violated both Labor Code and California’s Occupational Safety and Health Act regulations, which required fall protection to workers working at elevations in excess of 4-feet above the ground. The plaintiff’s safety expert opined that Peterson was required to provide fall protection to Richards through various means and that the excavator was not safe to climb on by anyone without using fall protection, including the use of a safety harness and guardrails. Peterson contended that it initially offered Richards a step bench to access the track, but that Richards declined the offer. However, it denied furnishing Richards with a platform ladder to get off the machine. It also denied that Richards was holding onto the grab bar at the time he lost his balance. The defense’s OSHA expert opined that California Code of Regulations Title 8, Section 3210, subpart (b)(9) provides an exception to the fall protection requirements for mobile equipment when working above 4-feet and that the footholds and handholds on the excavator were safe and adequate for climbing up and down the machine., Richards claimed he hyperextended his left, non-dominant arm when he lost his balance. Within a day or two after the incident, Richards presented to the Veteran’s Administration Clinic, where he was diagnosed with a torn distal biceps tendon in his left arm. Several weeks later, he underwent repair surgery for the tear. Richards was self-employed as a heavy equipment appraiser and estimator for 30 years prior to the injury. Though he continued to work in California, he claimed he lost the ability to adjust hurricane property damage claims out of state. The plaintiff’s economics expert subsequently opined that Richards lost income in the amount of approximately $80,000. The defense’s orthopedic expert opined that Richards could have adjusted the hurricane losses after his recovery from the surgical repair of his torn biceps.