Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

To Read an Analysis of this decision see

In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

Adam Ganz, Plaintiff, vs. United States Cycling Federation; Missoula Downtown Association; The City of Missoula; and John Does as employees and/or agents of United States Cycling Federation, Missoula Downtown Association, and/or the City of Missoula, Defendants.

Cause No. 74659

FOURTH JUDICIAL DISTRICT COURT OF MONTANA, MISSOULA COUNTY

1994 Mont. Dist. LEXIS 756

May 17, 1994, Decided

CORE TERMS: non-profit, admissible, limine, release form, limine to exclude, corporate status, feasibility, bicycle

JUDGES: [*1] Douglas G. Harkin, DISTRICT COURT JUDGE.

OPINION BY: Douglas G. Harkin

OPINION

MEMORANDUM AND ORDER

This matter comes before the Court upon a motion in limine submitted by the Plaintiff, Adam Ganz, and a motion in limine submitted by Defendants United States Cycling Federation and the Missoula Downtown Association. The parties have briefed the motions and they are deemed submitted and ready for ruling.

BACKGROUND

This action arose out of the alleged personal injuries Mr. Ganz received while involved in the Great Western Stage Race held in Missoula on July 16, 1988. Mr. Ganz alleges that a pedestrian darted out in front of him on the race course and caused him to crash his bicycle. He alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course. Mr. Ganz filed a motion in limine to exclude any mention of: (1) the Defendants’ non-profit corporate status, or (2) a waiver of liability that he signed. The Defendant filed a motion in limine to exclude the mention of insurance.

NON-PROFIT STATUS

Mr. Ganz contends that any mention of the non-profit corporate status of Defendants Missoula Downtown [*2] Association and the United States Cycling Federation should be prohibited, as non-profit corporations are subject to the same liability as individuals. He contends that the mention of the non-profit status would be prejudicial to his case.

The Defendants argue that the feasibility of providing protection [i.e., a fence along the entire race course] is at issue, therefore, the non-profit corporate status is a consideration and should be held admissible. In addition, the Defendants contend that the non-profit status should be admissible for general background purposes in order to challenge Mr. Ganz’s testimony that the Defendants had the ability to protect the entire race course.

35-2-118, M.C.A. provides that a non-profit corporation has all the powers as an individual to do all things necessary or convenient to carry out its affairs, including, without limitation, the power to sue and be sued in its corporate name.

Any admission of the non-profit status for general background purposes is prohibited, as it may improperly imply that there is a lack of funds to pay a judgment, or that a non-profit business should be held to a lesser standard under a negligence claim. If the [*3] feasibility of protection arises, after obtaining leave of the Court, the Defendants can show what funds were available for protection without showing the corporations’ non-profit status.

WAIVER

Mr. Ganz contends that there should be no mention of the waiver which Mr. Ganz signed prior to the race, as it is void and in violation of public policy. The Defendants contend that Mr. Ganz’s signature on the release form conveys his acknowledgement that various conditions could exist on the race course, and that it is contrary to his testimony that bicycle racing is a safe sport, therefore, the release should be admissible for impeachment purposes.

28-2-702, M.C.A. provides that an entity cannot contractually exculpate itself from liability for willful or negligent violations of legal duties. Miller v. Fallon County, 222 Mont. 214, 221, 721 P.2d 342 (1986). The mention of the release form for the purpose of proving that no liability exists is prohibited. However, the Defendants should be allowed to show that Mr. Ganz signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety [*4] to the jury.

INSURANCE

The Defendants request that the mention of insurance be prohibited pursuant to Rule 411, M.R.E. Mr. Ganz contends that the rule does not require the exclusion of the mention of insurance if it is offered for other purposes, such as to prove agency, ownership, control, or bias of a witness. Heisler v. Boule, 226 Mont. 332, 735 P.2d 516 (1987); and Massman v. City of Helena, 237 Mont. 234, 773 P.2d 1206 (1989).

Mr. Ganz has not clearly enunciated how the exceptions to Rule 411, M.R.E. are applicable to the facts of this case, therefore, the mention of insurance is prohibited unless Mr. Ganz obtains prior approval of this Court.

ORDER

Based upon the foregoing, the Plaintiff’s and the Defendants’ motions in limine are GRANTED as provided herein.

DATED this 17th day of May, 1994.

Douglas G. Harkin

District Judge