*1 ADAM GANZ, Appellant, Plaintiff and v. UNITED STATES CYCLING FEDERATION; MISSOULA DOWNTOWN ASSOCIATION; AND employees agents
JOHN as DOES, and/or United States and/or Federation, Missoula Downtown Association, Respondents.
Defendants and
No. 95-044.
July
on
Submitted
Briefs
1995.
Decided October
1995.
St.Rep.
For Alterowitz, Missoula. & Gary Graham; Lohn & Robin- Garlington, L. Respondents:
For son, Missoula. Opinion delivered the the Court.
JUSTICE LEAPHART verdict, Judicial District appeals jury from a Fourth Adam Court, County, in favor ofdefendants United States Missoula part, We affirm in and Missoula Downtown Association. Federation and remand. reverse on following appeal: issues are raised instructing Court err
1. Did the District only for purpose considered USCF documents be internal of the USCF at time the incident? showing knowledge the “Guidelines err in to admit 2. Did District Court as an exhibit? Management” to Risk instruction which the District Court err Did customary practices other the USCF’s allowed the consider events? cycling *3 refusing Proposed to give
4. the Court err in Did District 18? Jury Instruction Number the refusing in instruct the District Court err to
5. Did negligent? Ganz was not to Plaintiff’s motion grant the Court err in
6. Did of negligence? the a directed verdict on issue for deny the Court’s errors the cumulative effect of District 7. Did a fair trial? the “but for” causation the District Court err Did factor” causation instruction? of the “substantial
instruction instead (Ganz) during a injured “warm- July 16,1988, Adam Ganz was On Stage Race he crashed while Western when at the Great up lap” race had entered the eleven-year-old an child who to avoid attempting race, a “criterium” Race was a Stage The Western course. Great race entirely to traffic. The track closed race held on a small circuit the sponsored by Missoula Missoula, Montana and was was held (MDA) by the United States and sanctioned Downtown Association (USCF). business, up of The MDA is made Federation area. Missoula community in the downtown and service professional, bicycle amateur organization governs is the national The USCF the United States. racing MDA, for and Simmons, applied the executive director of
Pat Stage Race. by the USCF for the Great Western granted permit was and MDA as promoter Simmons as the individual named permit per- not familiar with or organization. Simmons was promoting According for the race. safety precautions in the sonally involved conducting included responsibilities permit, promoter’s taking safety precau- and proper officials competition qualified with and the welfare of both the athletes protect personal tions to spectators. race left the to a subcommittee that
The MDA the race. The subcommittee ar- actually organized and conducted referee, marshals, and determined the arranged for a chief ranged (Hall) Mary Cheryl race. This subcommittee included site of the City Missoula, bicycle coordinator for the who was Larango, cones, obtaining barricades, equipment and from the responsible for line, at the City fencing Missoula. Mesh was installed start/finish alleys placed at the street corners and on the and barricades were referee, Larango Copeland, testified that Michael chief course. Ammons, judge, charge setup the chief were in of the and Carl Larango supplies for the race. was the coordi- arrangements technical nator, charge aspects Ammons was in of the of the while recruiting volunteers who Larango responsible race. was also as marshals at the race. served official although he was the who
Ammons testified race, “stay being he tried to out of planning involved in riding in this possible.” the race as much as Instead involved with himself, agreed judge. Ammons to be the chief race particular instructed as to morning race, the marshals were On the reiterated these directions to Larango Copeland, their duties course, throughout stationed The marshals were the volunteers. dogs, from intersections, keep pedestrians, the course clear Buzan, Buzan, Trina Polzin Ange Chris Marie Marshals and vehicles. the incident occurred. stationed at the corner where and her son were charge of the thought Larango he was in testified that Chris Buzan *4 the mar- instructions to only Larango giving remembers race and on, and so but help had with barricades testified that ‘We shals. He could with what many us and we did the best we only so of there were they never Ange Buzan testified Buzan and Marie had.” Chris we event, they during the but that did not see assigned corners left their the incident. prepared by number of documents the trial, introduced a
At Ganz USCF, forth that set various USCF, or at the direction bicycle races. The conducting criterium and directions guidelines only could be considered jury the that this evidence instructed court at knowledge the available to USCF the showing of purpose for “the in question.” of the incident time allege did not it clear that the defendants order made pre-trial
The trial, ruled, to that the prior The court also contributory negligence. trial, not be raised. At as a of the risk could theory assumption of the verdict form parties agreed the compromise, stipulated only on the of that Ganz must show provide would Thus, jury only asked was representatives. any defendant or USCF, any representative of MDA, the whether the to determine volunteers, marshals, or race offi- including or the USCF the MDA that none of the jury returned a verdict The negligent. cials were from this verdict. negligent. appeals Ganz was defendants instructing err in District Court 1. Did the of purpose for the documents be considered internal time of the incident? the USCF at the knowledge showing internal USCF to introduce several trial, sought At with safety considerations associated discussed which documents document, Trial Exhibit first Plaintiff’s bicycle races. The criterium Safety and was “Elements of a Guideline” captioned was Number second, Trial Plaintiff’s safety consulting firm. by a prepared Cycling Federation titled “United States was Exhibit Number Safety Manual” and is similar Exhibit & Cycling Event Standards and is dated March on USCF letterhead This document is Number document,. outline. The final as a draft 31, 1986, and denominated titled document page is a Trial Exhibit Number Safety Manual” that was Cycling Federation “United States the USCF. The adopted by 1987 but was prepared solely 15,16, and 17 are admitted Exhibits that “Plaintiff’s instructed to the USCF knowledge available showing purpose determine that We question.” the incident time of solely for considering these exhibits limited to have been should not at the to the USCF available knowledge showing purpose in error. therefore, the instruction was and, hold of the incident time restriction without been admitted should have The exhibits were argument contest potentially *5 that the as an admission feasible, potentially Although these documents inadequate. race were the Missoula at form, they intracorporate commu are tantamount in “draft” were memoranda; is, that documents interdepartmental nications Pipeline Haines Constr. publication. intended for were never which 427, 1230, (1991), 422, Mont. 830 P.2d Co. 251 v. Montana Power Co. concerning mat intracorporate that communications (holding 1234 admission); admitted as an to the issue should have been ters relevant 522, 531, 604 97, 101-02 (holding (1979), 184 Mont. P.2d v. State Cech stating dangerous that the memorandum interdepartmental fixed” was admissible to show very easily “could situation argues that these docu feasibility installing guardrail). a Ganz of duty. determine the USCF’s have also been admitted to ments should court, duty legal question a is a The existence of disagree. We (1981), 224, 226, 191 Mont. Roy to determine. v.Neibauer jury, not the jury. duty question Breach of that is a P.2d to admit the “Guidelines the District Court err in 2. Did Management” as an exhibit? to Risk 2, a to offer Plaintiff’s Trial Exhibit Number attempted
Ganz Cycling Federation Guidelines document titled “United States testimony Andy of Bohlmann. Management,” through the to Risk of Technical Services for the USCF from was the Director Bohlmann culmination of earlier appears The document to be the 1984 to 1990. manual; virtually language the same was before safety drafts of safety manual, Trial Exhibit Number 17. This jury in the draft 1989, year document, Number was distributed Trial Exhibit by repre the USCF to its district question, the incident after the manual was distribution, the use of Soon after its sentatives. discontinued. admit the exhibit over that Ganz moved to transcript indicates Ganz’s counsel objection. questioned The court
the defendants’ admissibility the exhibit. The possible theories length as to laid and had not been that foundation for the exhibit concluded court yet been asked. questions had right that the informed counsel and, fur- through question witness counsel continued The witness of the exhibit. elicited the substance questioning, ther distributed and adopted, and prepared, the manual was testified asking the After use was discontinued. shortly thereafter its Number Trial Exhibit which, along with questions additional later aban- prepared, manuals had been established Number 2. Trial Exhibit move to admit doned, again did not re-offered, the court did not make a final the exhibit was Since admissibility. Rather, immediately final jury to its before ruling as given, just after a discussion was held off the instructions were that, purposes,” “for record Trial record, the court stated Exhibit ruling refused based on “insufficient foundation.” This Number was Although the initial offer of the exhibit. the substance was based on testimony, no offer of through subsequent the exhibit was elicited Thus, made counsel. counsel’s failure to re-offer the exhibit was addressing discharges us from further this issue on the exhibit appeal. Court err in instruction which
3. Did the District customary practices to consider the USCF’s at other allowed the cycling events? *6 Jury Court erred in its argues giving that the District
Ganz 3, provided: which Instruction Number Customary controlling question are not on the methods of conduct merely one of the factors to be considered in but are ordinary care exercised. determining or not has been whether Proposed this instruction from the Defendants’ adapted The court 10, “Customary that acts Jury provided Number which Instruction determining in of the factors to be considered practices are one care has been exercised.” whether reasonable instead, instruction, defendants’ it give The court refused to instruction, proposed of the defendants’ McCol looked to the source 458, (1971), 335, Mont. 479 P.2d D & M Lumber Co. lum v. directly language oí McCollum. This instruction instructed from Evidence of custom is admissible to in this situation. inapplicable is industry, whole, not one customary of an as practices show the industry. Here, only evidence of custom member of that particular custom; there bicycle races is the USCF’s own directing amateur industry. Thus, the non-party members of the same are no other compare use to the defen “customary” practices that the could race be with other conduct of conduct in the Missoula would dants’ the same defendant. body sport for the governing national
As the self-described only entity that directs and bicycle racing, the USCF is amateur The USCF cycling in the United States. sport controls the of amateur committees, promulgates directors, appoints elects a board all sanc- officials, permits all Book,” approves trains “Rule usually un- of the bicycle races. Evidence tioned entirely bicycle races is criterium by the USCF at small dertaken industry not to show the custom —the self-serving and is admissible “industry.” Thus, hold that District Court erred is we Jury its Instruction Number 3. give err Proposed 4. Did the District Court Instruction 18? Jury Number child non-party established that there was a
The evidence who that Anticipating might the race course. the defendants darted onto including the child person, to blame another who entered attempt course, Proposed Jury offered Plaintiff’s Instruction Num race 2.09, that: provided MPI which ber person may causing injury. than be liable an A More one liability by may claiming defendant avoid some other action, as a defendant in this person, helped whether not named injury. cause discretionary rulings
Our standard of review for
trial court
is
the district court abused
discretion. Barthule v. Karman
whether
(1994),
477, 487,
Barthule,
886 P.2d
977. In
we
268 Mont.
held
error for a district court to refuse an offered
it is
reversible
refusal
the substantial
rights
instruction unless the
affects
Barthule,
(citing
the instruction.
5. Did the District Court err in refusing to instruct the jury that negligent? Ganz was not give
The District Court refused to Proposed Instruc 12, which, tion Number in part, provided: Adam negligent Ganz was not in the manner which he was the riding accident, before in the action he took to avoid the spectator any pedestrian, or in other action he took leading up to the accident.
The pre-trial order made it clear that the defendants did not allege negligence contributory and, prior trial, to the court also ruled that theory assumption ofthe risk couldnot In be raised. the opening statement, any the defendants “Wewill present stated evidence anything wrong.” Further, during trial, that Mr. Ganz did the court jury: instructed the you day, you
Before I recess for the I wanted to read a brief I just instruction that It drafted. relates to witness that testified reaction times. You regarding are advised that the evi- dence from a witness that related to the scientific basis for a bike time racer’s reaction is to be used weigh testimony of other This is not in any witnesses. evidence to be used manner to the Plaintiff, Ganz, determine if Adam negligent any manner, any possible negligence because on the Plain- tiff is not an issue this lawsuit.
The fact did not place negligence defendants Ganz’s admonished issue, and that the court biker’s reaction “possible” issues, times and Ganz’s were not makes the give proposed puzzling. Despite court’s refusal to admonishment stipulation court’s and the defendants’ that Ganz’s way issue, not an that the evidence and the negligence was (i.e. trial, the bike testimony throughout unfolded issue of racer’s Ganz’s) “possible times question negli- reaction and the jurors. Although been on the ofthe we do gence” may have minds Proposed ofPlaintiff’s Instruction Number 12 hold the court’s refusal error, court, retrial, should the inconsis- on avoid be reversible *8 (which created between the pretrial any tencies order does not allege Ganz) by and the negligence court’s admonition to the concerning negligence.” “possible through five, Based on our resolution ofissues one it unnecessary is through eight. for us to address issues six part, part, Affirmed in reversed in and remanded for proceedings this opinion. consistent with TRIEWEILER,
JUSTICES NELSON and HUNT concur. GRAY,concurring in part dissenting JUSTICE in part. two, I in the opinion five, concur Court’s on issues four and specially three, concur on issue and dissent on issue one. regard three, relating
With to issue to the jury instruction on customary I practices, agree with the result the Court reaches but First, all that is it important with said. is to note that Ganz made objection any no of the evidence introduced on customary Thus, practices of the USCF. that evidence was properly before the circumstance, for its consideration. Under that ordinarily it appropriate theory would be to instruct the on that defense, ofthe requiring jury under our usual rules instruction on theories of the supported by case See County (1994), evidence. Buhr v. Flathead 223, 235, 268 Mont. 886 P.2d However, argues, the Court agree, determines and I
McCollum, authority customary is not practices here; given that case involved the usual situation industry-wide customary practices used as a factor in determining defendant, industry. member or constituent of that authority USCF cites to no for the proposition where, here, as essentially industry’ issue, the defendant is “the it remains appro- priate customary to instruct on that defendant’s practices as the industry relevant practices. This is basis on which I would reverse Court on this issue. I from the Court’s dissent discussion resolution in issue one improperly jurys that the District Court limited the consideration of “internal USCF documents.” Plaintiff’s Trial Exhibit No. Safety Guideline,” very “Elements of is—as name reflects —an safety it not a guideline; guideline. outline for a is substantive Moreover, prepared, adopted, by the exhibit was neither nor manual, Trial the so-called denomi- USCF. Plaintiff’s Exhibit is outline. final, adopted, nated a draft It is neither a nor an outline. as prepared Plaintiff’s Trial Exhibit 17 is another draft manual — people adopted by different never USCF. I sections cannot how latter draft can unadopted these documents understand states as admission “potentially the Court an relevant —as it— inadequate.” at the Missoula race were precautions *9 by support cited the Court reversal of do cases Nor limiting relating to Court’s instruction these exhibits. The District admissibility Cech in both Haines and related to evidence issue Rules of Evidence rather than whether court under the Montana by limiting for which the could purposes its discretion abused already In neither was the evidence admitted. case docu- consider Finally, “nonadopted” or material at issue draft or form. we ment specifically document in Haines was admissible determined about knowledge it to MPC’s the course action was relevant because Here, “knowledge” aspect of our conclusion in chose to follow. it clearly, was covered Court’s properly, Haines purpose could considered for the the exhibits time of the knowledge at the incident issue. showing USCF’s joins foregoing. JUSTICE TURNAGE CHIEF