NO. 95-044 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1995

ADAMGANZ,Plaintiff andAppellant,

v. UNITED STATES CYCLING FEDERATION; MISSOULA DOWNTOWNASSOCIATION; AND JOHNDOES, 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 andfor the County of Missoula, The Honorable Douglas G.Harkin, Judge presiding

COUNSELOFRECORD:

For Appellant: Thomas J. Beers, Larry Howell; Connell, Beers & Alterowitz, Missoula, Montana For Respondents: Gary L. Graham; Garlington, Lohn &Robinson, Missoula, Montana

Filed: Submitted onBriefs: July 27, 1995 Decided: October 3, 1995Justice 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 onappeal: 1. Did the District Court err in instructing the jury that the internal USCFdocuments beconsidered 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" asanexhibit? 3. Did the District Court err in giving ajury 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 Ganzwasnot 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 afair trial? 8. Did the District Court err in giving the "but for" causation instruction instead ofthe "substantial factor" causation instruction? OnJuly 16, 1988, AdamGanz (Ganz) wasinjured during a"warmup lap" at the Great Western Stage Race when he crashed while attempting to avoid aneleven-year-old child who had entered the

race course. TheGreat Western Stage Racewasa"criterium" race,

acircuit race held onasmall track entirely closed to traffic. The race was held in Missoula, Montana and was sponsored by theMissoula 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. TheUSCFis 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 apermit bythe USCFfor the Great Western Stage Race. The permit named Simmons asthe individual promoter andMDA

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 andthe spectators. The MDAleft the safety precautions to arace subcommittee that actually organized and conducted the race. The subcommittee arranged for achief referee, arranged for marshals, anddetermined the site of the race. This subcommittee included Mary Cheryl (Hall) Larango, the bicycle coordinator for the City of Missoula, whowasresponsible for obtaining barricades, cones, andequipment from the City of Missoula. Mesh fencing was installed at the start/finish line, andbarricades were placed at the street corners andalleys onthe course. Larango testified that Michael Copeland, the chief referee, andCarl Ammons, the chief judge, were in charge of the setup andsafety arrangements for the race. Larango wasthe supplies coordinator, while Ammonswas in charge of the technical

3aspects of the race. Larango wasalso responsible for recruiting

volunteers whoserved asmarshals at the race. Ammons testified that although hewasthe only USCFofficial 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. Onthe morning ofthe race, the marshals were instructed asto 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, andvehicles. Marshals Chris Buzan, Marie Ange Buzan, Trina Polzin andher sonwere stationed at the corner where the incident occurred. Chris Buzan testified that he thought Larango wasin charge of the race andonly remembers Larango giving instructions to the marshals. Hetestified that "Wehad help with barricades and soon, but there were only somanyof usandwedid the best wecould with what wehad." 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 anumber of documents prepared by the USCF, or at the direction of the USCF, that set forth various safety guidelines anddirections 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 USCFat the time of the incident in question."

4Thepre-trial order madeit 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, asastipulated 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 MDAor the USCF including marshals, volunteers, or race officials were negligent. The jury returned averdict that noneof the defendants wasnegligent. Ganz appeals from this verdict. 1. Did the District Court err in instructing the jury that the internal USCFdocuments beconsidered only for the purpose of showing the knowledge of the USCFat 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 aSafety 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 onUSCFletterhead and is dated March 31, 1986, and denominated as adraft outline. The final document, Plaintiff's Trial Exhibit Number 17, is a138 page document titled "United States Cycling Federation Cycling Safety Manual" that wasprepared in 1987but wasnot adopted bythe USCF. The jury was instructed that "Plaintiff's Exhibits 15,

5

### 16, and 17are admitted solely for the purpose of showing the

knowledge available to the USCFat the time of the incident in question." Wedetermine that thejury should not havebeenlimited toconsidering these exhibits solely for thepurpose of showing the knowledge available to the USCFat the time of the incident and, therefore, hold the instruction wasin error. Theexhibits should havebeenadmitted without restriction to potentially contest the argument that safety precautions werenot 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 orinterdepartmental memoranda; that is, documents which were never intended for publication. Haines Pipeline Constr. Co.v. Montana PowerCo. (1992), 251Mont. 422, 427, 830 P.2d 1230, 1234 (holding that intracorporate communications concerning matters relevant tothe issue should have been admitted asanadmission); Cechv. State (19791, 184Mont. 522, 531, 604 P.2d 97, 101-02 (holding that interdepartmental memorandumstating that the dangerous situation "could very easily befixed" wasadmissible to showthe feasibility of installing a guardrail). Ganzargues that these documents should havealso been admitted todetermine theUSCF'sduty. Wedisagree. Theexistence of aduty is alegal question for the court, not the jury, to determine. Royv. Neibauer (1981), 191Mont. 224, 226, 623P.2d 555, 556. Breach of that duty is aquestion for the jury. 2. Did the District Court err in refusing to admit the "Guidelines to Risk Management" asanexhibit? 6

### Ganzattempted tooffer Plaintiff's Trial Exhibit Number2,a

USCFdocument titled "United States Cycling Federation Guidelines to Risk Management," through the testimony of Andy Bohlmann. Bohlmann wasthe Director of Technical Services for the USCFfrom 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, wasdistributed in 1989, ayear after the incident in question, bythe USCFto its district representatives. Soonafter its distribution, the use of the manual wasdiscontinued. Thetranscript indicates that Ganzmoved to admit the exhibit

over the defendants' objection. The court questioned Ganz's counsel at length asto the possible theories of admissibility of the exhibit. The court concluded that foundation for the exhibit hadnot been laid andinformed 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. Thewitness testified that the manual wasprepared, 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

7were given, and just after adiscussion was held off the record,

the court stated that, "for record purposes," Trial Exhibit Number 2wasrefused based on "insufficient foundation." This ruling was based onthe initial offer of the exhibit. Although the substance of the exhibit waselicited through testimony, nosubsequent offer of the exhibit wasmadebycounsel. Thus, counsel's failure to reoffer the exhibit discharges usfrom further addressing this issue

onappeal. 3. Did the District Court err in giving ajury 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 onthe question of negligence but are merely oneof the factors to beconsidered 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." Thecourt refused to give defendants' instruction, instead, it looked to the source of the defendants' proposed instruction, McCollum v. D&MLumber Co. (19711, 156Mont. 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 showthe customary practices of anindustry, asa whole, not one particular member of that industry. Here, the only evidence of custom in directing amateur bicycle races is the USCF's 8own 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 bewith other conduct of the samedefendant. Asthe self-described national governing body for the sport of amateur bicycle racing, the USCFis 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 wasanon-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 oneperson maybeliable for causing aninjury. Adefendant maynot avoid liability byclaiming that some other person, whether ornot namedasadefendant 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.

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

weheld that it is not reversible error for adistrict 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, wedetermine that the District Court's refusal to give the proposed instruction did affect Ganz's substantial rights. The jury knewthat the child entered the race course. Asaresult, the jury waspresented with the potential fault of anon-party andwas not instructed that adefendant maynot avoid liability byclaiming that someother person helped cause the injury. Ganz's proposed instruction was an accurate statement of Montana law, and clearly wasapplicable in light of the undisputed evidence that the accident occurred when anunnamed child entered the race course. Ganzanticipated that defense counsel might point

afinger at the child. In closing argument, that is precisely what occurred. Defense counsel stated "If, in your view somebody needs to beblamed, there's ayoungster whodarted 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 wasnot to consider the negligence of a non-party. Newville v. State, Dep't of Family Servs. (1994), 267 Mont. 237, 255-56, 883P.2d 793, 804. Wehold, therefore, that the District Court erred in failing to give Plaintiff's Proposed

10Instruction Number 18. In failing to give the proposed

instruction, the District Court virtually invited the improper statement madebydefense 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 anonparty child mayhave been at fault 5. Did the District Court err in refusing to instruct the jury that Ganzwas not negligent? The District Court refused to give Plaintiff's Proposed Instruction Number 12, which, in part, provided: AdamGanzwasnot negligent in the manner in which hewas riding before the accident, in the action he took to avoid the spectator orpedestrian, or in anyother action hetook leading upto 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 "Wewill 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, Iwanted to read you a brief instruction that Ijust drafted. It relates to the witness that testified regarding reaction times. Youare advised that the evidence from awitness that related to the scientific basis for abike racer's reaction time is to be used only to weigh the testimony of other witnesses. This evidence is not to beused in anymanner to determine if the Plaintiff, AdamGanz, was negligent in any manner, because any possible negligence on the part of the Plaintiff is not anissue in this lawsuit. The fact that the defendants did not place Ganz's negligence 11at 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 wasnot anissue, the waythat the evidence and the testimony unfolded throughout the trial, the issue of bike racer's (i.e. Ganz's) reaction times andthe question of Ganz's "possible negligence" mayhave been onthe minds of the jurors. Although wedonot hold the court's refusal of Plaintiff's Proposed Instruction Number 12to 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.

Weconcur:Justice Karla M. Gray, concurring in part anddissenting in part.

I concur in the Court's opinion onissues two, four and five, specially concur on issue three, anddissent on issue one. With regard to issue three, relating to the jury instruction

on customary practices, Iagree with the result the Court reaches but not with all that is said. First, it is important to note that Ganz made noobjection to any of the evidence introduced on the customary practices of the USCF. Thus, that evidence wasproperly before the jury for its consideration. Under that circumstance, it ordinarily would beappropriate to instruct the jury onthat 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 Iagree, that McCollum is not authority for the customary practices instruction given here; that case involved the usual situation of industry-wide customary practices used asafactor in determining the negligence of the defendant, amember or constituent part of that industry. The USCFcites to noauthority 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 asthe relevant industry practices. This is the basis on which Iwould reverse the District Court onthis issue.

Idissent from the Court's discussion andresolution 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 aSafety Guideline," is--as its very namereflects--an outline for asafety guideline; it is not a 13