Ganz v. U.S. Cycling Federation

• Decision Date: 03 October 1995
• Docket Number: No. 95-044,95-044
• Citation: 273 Mont. 360,903 P.2d 212
• Parties: Adam GANZ, Plaintiff and Appellant, v. UNITED STATES CYCLING FEDERATION; Missoula Downtown Association; and John Does, as employees and/or agents of United States Cycling Federation, and/or Missoula Downtown Association, Defendants and Respondents.
• Court: Montana Supreme Court

Page 212

903 P.2d 212

273 Mont. 360

Adam GANZ, Plaintiff and Appellant, v. UNITED STATES CYCLING FEDERATION; Missoula Downtown

Association; and John Does, as employees and/or agents of

United States Cycling Federation, and/or Missoula Downtown

Association, Defendants and Respondents.

No. 95-044.

Supreme Court of Montana.

Submitted on Briefs July 27, 1995.

Decided Oct. 3, 1995.

Thomas J. Beers, Larry Howell, Connell, Beers & Alterowitz, Missoula, for appellant.

Gary L. Graham, Garlington, Lohn & Robinson, Missoula, for respondents.

LEAPHART, Justice.

Adam Ganz appeals from a jury verdict, Fourth Judicial District Court, Missoula County, in favor of defendants United States Cycling Federation and Missoula Downtown Association. We affirm in part, reverse in part and remand.

The following issues are raised on appeal:

1. Did the District Court err in instructing the jury that the internal USCF documents be considered only for the purpose of showing the knowledge of the USCF at the time of the incident?

2. Did the District Court err in refusing to admit the "Guidelines to Risk Management" as an exhibit?

3. Did the District Court err in giving a jury instruction which allowed the jury to consider the USCF's customary practices at other cycling events?

4. Did the District Court err in refusing to give Plaintiff's Proposed Jury Instruction Number 18?

5. Did the District Court err in refusing to instruct the jury that Ganz was not negligent?

6. Did the District Court err in refusing to grant Plaintiff's motion for a directed verdict on the issue of negligence?

7. Did the cumulative effect of the District Court's errors deny Ganz a fair trial?

8. Did the District Court err in giving the "but for" causation instruction instead of the "substantial factor" causation instruction?

On July 16, 1988, Adam Ganz (Ganz) was injured during a "warm-up lap" at the Great Western Stage Race when he crashed while attempting to avoid an eleven-year-old child who had entered the race course. The Great Western Stage Race was a "criterium" race, a circuit race held on a small track entirely closed to traffic. The race was held in Missoula, Montana and was sponsored by the Missoula Downtown Association (MDA) and sanctioned by the United States Cycling Federation (USCF). The MDA is made up of the business, professional, and service community in the downtown Missoula area. The USCF is the national organization that governs amateur bicycle racing in the United States.

Pat Simmons, the executive director of the MDA, applied for and was granted a permit by the USCF for the Great Western Stage Race. The permit named Simmons as the individual promoter and MDA as the promoting organization. Simmons was not familiar with or personally involved in the safety precautions for the race. According to the permit, the promoter's responsibilities included conducting the competition with qualified officials and taking proper safety precautions to protect the personal welfare of both the athletes and the spectators.

The MDA left the safety precautions to a race subcommittee that actually organized and conducted the race. The subcommittee arranged for a chief referee, arranged for marshals, and determined the site of the race. This subcommittee included Mary Cheryl (Hall) Larango, the bicycle coordinator for the City of Missoula, who was responsible for obtaining barricades, cones, and equipment from the City of Missoula. Mesh fencing was installed at the start/finish line, and barricades were placed at the street corners and alleys on the course. Larango testified that Michael Copeland, the chief referee, and Carl Ammons, the chief judge, were in charge of the setup and safety arrangements for the race. Larango was the supplies coordinator, while Ammons was in charge of the technical aspects of the race. Larango was also responsible for recruiting volunteers who served as marshals at the race.

Ammons testified that although he was the only USCF official who was involved in planning the race, he tried to "stay out of being involved with the race as much as possible." Instead of riding in this particular race himself, Ammons agreed to be the chief judge.

On the morning of the race, the marshals were instructed as to their duties by Copeland, and Larango reiterated these directions to the volunteers. The marshals were stationed throughout the course, and at intersections, to keep the course clear from pedestrians, dogs, and vehicles. Marshals Chris Buzan, Marie Ange Buzan, Trina Polzin and her son were stationed at the corner where the incident occurred. Chris Buzan testified that he thought Larango was in charge of the race and only remembers Larango giving instructions to the marshals. He testified that "We had help with barricades and so on, but there were only so many of us and we did the best we could with what we had." Chris Buzan and Marie Ange Buzan testified that they never left their assigned corners during the event, but that they did not see the incident.

At trial, Ganz introduced a number of documents prepared by the USCF, or at the direction of the USCF, that set forth various safety guidelines and directions for conducting criterium bicycle races. The court instructed the jury that this evidence could only be considered for "the purpose of showing the knowledge available to USCF at the time of the incident in question."

The pre-trial order made it clear that the defendants did not allege contributory negligence. The court also ruled, prior to trial, that the theory of assumption of the risk could not be raised. At trial, as a stipulated compromise, the parties agreed that the verdict form would provide that Ganz must only show negligence on the part of any defendant or its representatives. Thus, the jury was only asked to determine whether the MDA, the USCF, or any representative of the MDA or the USCF including marshals, volunteers, or race officials were negligent. The jury returned a verdict that none of the defendants was negligent. Ganz appeals from this verdict.

1. Did the District Court err in instructing the jury that the internal USCF documents be considered only for the purpose of showing the knowledge of the USCF at the time of the incident?

At trial, Ganz sought to introduce several internal USCF documents which discussed safety considerations associated with criterium bicycle races. The first document, Plaintiff's Trial Exhibit Number 15, was captioned "Elements of a Safety Guideline" and was prepared by a safety consulting firm. The second, Plaintiff's Trial Exhibit Number 16, was titled "United States Cycling Federation Cycling Event Standards & Safety Manual" and is similar to Exhibit Number 15. This document is on USCF letterhead and is dated March 31, 1986, and denominated as a draft outline. The final document, Plaintiff's Trial Exhibit Number 17, is a 138 page document titled "United States Cycling Federation Cycling Safety Manual" that was prepared in 1987 but was not adopted by the USCF. The jury was instructed that "Plaintiff's Exhibits 15, 16, and 17 are admitted solely for the purpose of showing the knowledge available to the USCF at the time of the incident in question." We determine that the jury should not have been limited to considering these exhibits solely for the purpose of showing the knowledge available to the USCF at the time of the incident and, therefore, hold the instruction was in error.

The exhibits should have been admitted without restriction to potentially contest the argument that safety precautions were not feasible, and potentially as an admission that the safety precautions at the Missoula race were inadequate. Although these documents were in "draft" form, they are tantamount to intracorporate communications or interdepartmental memoranda; that is, documents which were never intended for publication. Haines Pipeline Constr., Inc. v. Montana Power Co. (1991), 251 Mont. 422, 427, 830 P.2d 1230, 1234 (holding that intracorporate communications concerning matters relevant to the issue should have been admitted as an admission); Cech v. State (1979), 184 Mont. 522, 531, 604 P.2d 97, 101-02 (holding that interdepartmental memorandum stating that the dangerous situation "could very easily be fixed" was admissible to show the feasibility of installing a guardrail). Ganz argues that these documents should have also been admitted to determine the USCF's duty. We disagree. The existence of a duty is a legal question for the court, not the jury, to determine. Roy v. Neibauer (1981), 191 Mont. 224, 226, 623 P.2d 555, 556. Breach of that duty is a question for the jury.

2. Did the District Court err in refusing to admit the "Guidelines to Risk Management" as an exhibit?

Ganz attempted to offer Plaintiff's Trial Exhibit Number 2, a USCF document titled "United States Cycling Federation Guidelines to Risk Management," through the testimony of Andy Bohlmann. Bohlmann was the Director of Technical Services for the USCF from 1984 to 1990. The document appears to be the culmination of earlier drafts of the safety manual; virtually the same language was before the jury in the draft safety manual, Trial Exhibit Number 17. This document, Trial Exhibit Number 2, was distributed in 1989, a year after the incident in question, by the USCF to its district representatives. Soon after its distribution, the use of the manual was discontinued.

The transcript indicates that Ganz moved to admit the exhibit over the defendants' objection. The court questioned Ganz's counsel at length as to the possible theories of admissibility of the exhibit. The court concluded that foundation for the exhibit had not been laid and informed counsel that the right questions had not yet been asked. Ganz's counsel continued to question the witness and, through further questioning, elicited the substance of the exhibit. The witness testified that the manual was prepared, adopted, and distributed and that shortly...