NO. 95-044 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

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. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Thomas J. Beers, Larry Howell; Connell, Beers & 

Alterowitz, Missoula, Montana 

For Respondents: 

Gary L. Graham; Garlington, Lohn & Robinson, 

Missoula, Montana 

Filed: 

Submitted on Briefs: July 27, 1995 

Decided: October 3, 1995 
Justice W. William Leaphart delivered the Opinion of the Court. 

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 

Plaintiff's Proposed Jury Instruction Number 18? 

give 

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 "warmup 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 

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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." 

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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, 

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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. Co. v. Montana Power Co. (1992), 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 (19791, 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? 

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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 thereafter its use was 

discontinued. After asking the additional questions which, along 

with Trial Exhibit Number 17, established that safety manuals had 

been prepared, and later abandoned, Ganz did not again move to 

admit Trial Exhibit Number 2. Since the exhibit was not reoffered, the court did not make a final ruling as to its 

admissibility. Rather, immediately before final jury instructions 

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were given, and just after a discussion was held off the record, 

the court stated that, "for record purposes," Trial Exhibit Number 

2 was refused based on "insufficient foundation." This ruling was 

based on the initial offer of the exhibit. Although the substance 

of the exhibit was elicited through testimony, no subsequent offer 

of the exhibit was made by counsel. Thus, counsel's failure to reoffer the exhibit discharges us from further addressing this issue 

on appeal. 

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? 

Ganz argues that the District Court erred in giving its Jury 

Instruction Number 3, which provided: 

Customary methods of conduct are not controlling on the 

question of negligence but are merely one of the factors 

to be considered in determining whether or not ordinary 

care has been exercised. 

The court adapted this instruction from the Defendants' 

Proposed Jury Instruction Number 10, which provided that "Customary 

acts and practices are one of the factors to be considered in 

determining whether reasonable care has been exercised." 

The court refused to give defendants' instruction, instead, it 

looked to the source of the defendants' proposed instruction, 

McCollum v. D & M Lumber Co. (19711, 156 Mont. 335, 479 P.2d 458, 

and instructed directly from the language of McCollum. This 

instruction is inapplicable in this situation. Evidence of custom 

is admissible to show the customary practices of an industry, as a 

whole, not one particular member of that industry. Here, the only 

evidence of custom in directing amateur bicycle races is the USCF's 

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own custom; there are no other non-party members of the same 

industry. Thus, the only "customary" practices that the jury could 

use to compare the defendants' conduct in the Missoula race would 

be with other conduct of the same defendant. 

As the self-described national governing body for the sport of 

amateur bicycle racing, the USCF is the only entity that directs 

and controls the sport of amateur cycling in the United States. 

The USCF elects a board of directors, appoints committees, 

promulgates the "Rule Book," trains officials, and approves all 

permits for all sanctioned bicycle races. Evidence of the safety 

precautions usually undertaken by the USCF at small criterium 

bicycle races is entirely self-serving and is not admissible to 

show the industry custom--the USCF is the "industry." Thus, we 

hold that the District Court erred in giving its Jury Instruction 

Number 3. 

4. Did the District Court err in refusing to give 

Plaintiff's Proposed Jury Instruction Number 18? 

The evidence established that there was a non-party child who 

darted onto the race course. Anticipating that the defendants 

might attempt to blame another person, including the child who 

entered the race course, Ganz offered Plaintiff's Proposed Jury 

Instruction Number 18, MPI 2.09, which provided that: 

More than one person may be liable for causing an injury. 

A defendant may not avoid liability by claiming that some 

other person, whether or not named as a defendant in this 

action, helped cause the injury. 

Our standard of review for discretionary trial court rulings 

is whether the district court abused its discretion. Barthule v. 

9 
Karman (1994), 268 Mont. 477, 487, 886 P.2d 971, 977. In Barthule, 

we held that it is not reversible error for a district court to 

refuse an offered instruction unless the refusal affects the 

substantial rights of the party who proposed the instruction. 

Barthule, 886 P.2d at 977 (citing Cottrell v. Burlington Northern 

R.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d 381, 387). Here, 

however, we determine that the District Court's refusal to give the 

proposed instruction did affect Ganz's substantial rights. The 

jury knew that the child entered the race course. As a result, the 

jury was presented with the potential fault of a non-party and was 

not instructed that a defendant may not avoid liability by claiming 

that some other person helped cause the injury. 

Ganz's proposed instruction was an accurate statement of 

Montana law, and clearly was applicable in light of the undisputed 

evidence that the accident occurred when an unnamed child entered 

the race course. Ganz anticipated that defense counsel might point 

a finger at the child. In closing argument, that is precisely what 

occurred. Defense counsel stated "If, in your view somebody needs 

to be blamed, there's a youngster who darted out onto the raceway. 

We're not suggesting that, but if you're the type of person that 

needs to fix fault someplace, I would suggest that as a 

possibility." Had the offered instruction been given, the jury 

would have known that it was not to consider the negligence of a 

non-party. Newville v. State, Dep't of Family Servs. (1994), 267 

Mont. 237, 255-56, 883 P.2d 793, 804. We hold, therefore, that the 

District Court erred in failing to give Plaintiff's Proposed 

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Instruction Number 18. In failing to give the proposed 

instruction, the District Court virtually invited the improper 

statement made by defense counsel during the closing argument. The 

court's refusal to give Plaintiff's Proposed Instruction Number 18, 

combined with the defense's closing argument allowed the jury to 

divert its attention from considering the conduct of the 

defendants, and invited the jury to entertain the idea that a nonparty child may have been at fault 

5. Did the District Court err in refusing to instruct the 

jury that Ganz was not negligent? 

The District Court refused to give Plaintiff's Proposed 

Instruction Number 12, which, in part, provided: 

Adam Ganz was not negligent in the manner in which he was 

riding before the accident, in the action he took to 

avoid the spectator or pedestrian, or in any other action 

he took leading up to the accident. 

The pre-trial order made it clear that the defendants did not 

allege contributory negligence and, prior to trial, the court also 

ruled that the theory of assumption of the risk could not be 

raised. In the opening statement, the defendants stated "We will 

not present any evidence that Mr. Ganz did anything wrong." 

Further, during trial, the court instructed the jury: 

Before I recess you for the day, I wanted to read you a 

brief instruction that I just drafted. It relates to the 

witness that testified regarding reaction times. You are 

advised that the evidence from a witness that related to 

the scientific basis for a bike racer's reaction time is 

to be used only to weigh the testimony of other 

witnesses. This evidence is not to be used in any manner 

to determine if the Plaintiff, Adam Ganz, was negligent 

in any manner, because any possible negligence on the 

part of the Plaintiff is not an issue in this lawsuit. 

The fact that the defendants did not place Ganz's negligence 

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at issue, and that the court admonished the jury that biker's 

reaction times and Ganz's "possible" negligence were not issues, 

makes the court's refusal to give the proposed instruction 

puzzling. Despite the court's admonishment and the defendants' 

stipulation that Ganz's negligence was not an issue, the way that 

the evidence and the testimony unfolded throughout the trial, the 

issue of bike racer's (i.e. Ganz's) reaction times and the question 

of Ganz's "possible negligence" may have been on the minds of the 

jurors. Although we do not hold the court's refusal of Plaintiff's 

Proposed Instruction Number 12 to be reversible error, the court, 

on retrial, should avoid the inconsistencies created between the 

pretrial order (which does not allege any negligence by Ganz) and 

the court's admonition to the jury concerning Ganz's "possible 

negligence." 

Based on our resolution of issues one through five, it is 

unnecessary for us to address issues six through eight. 

Affirmed in part, reversed in part, and remanded for 

proceedings consistent with this opinion. 

We concur: 
Justice Karla M. Gray, concurring in part and dissenting in part. 

I concur in the Court's opinion on issues two, four and five, 

specially concur on issue three, and dissent on issue one. 

With regard to issue three, relating to the jury instruction 

on customary practices, I agree with the result the Court reaches 

but not with all that is said. First, it is important to note that 

Ganz made no objection to any of the evidence introduced on the 

customary practices of the USCF. Thus, that evidence was properly 

before the jury for its consideration. Under that circumstance, it 

ordinarily would be appropriate to instruct the jury on that theory 

of the defense, under our usual rules requiring jury instruction on 

theories of the case supported by the evidence. See Buhr v. 

Flathead County (1994), 268 Mont. 223, 235, 886 P.2d 381, 388. 

However, Ganz argues, the Court determines and I agree, that 

McCollum is not authority for the customary practices instruction 

given here; that case involved the usual situation of industry-wide 

customary practices used as a factor in determining the negligence 

of the defendant, a member or constituent part of that industry. 

The USCF cites to no authority for the proposition that where, as 

here, the defendant essentially ti "the industry" at issue, it 

remains appropriate to instruct on that defendant's customary 

practices as the relevant industry practices. This is the basis on 

which I would reverse the District Court on this issue. 

I dissent from the Court's discussion and resolution in issue 

one that the District court improperly limited the jury's 

consideration of "internal USCF documents." Plaintiff's Trial 

Exhibit No. 15, the "Elements of a Safety Guideline," is--as its 

very name reflects--an outline for a safety guideline; it is not a 

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