Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-16-2008

Bjorgung v. Whitetail Resort
Precedential or Non-Precedential: Precedential

Docket No. 07-4148




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                                  PRECEDENTIAL
          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                          No. 07-4148


                ANDERS ELLIS BJORGUNG,
                               Appellant

                                v.

                WHITETAIL RESORT, LP,
          WHITETAIL SKI COMPANY, INC., and
         U.S. SKI & SNOWBOARD ASSOCIATION




    Appeal of a Decision of the United States District Court
           for the Middle District of Pennsylvania
                 (D.C. Civil No. 03-cv-02114)
               Chief District Judge: Yvette Kane


         Submitted under Third Circuit L.A.R. 34.1(a)
                      October 24, 2008

        Before: RENDELL and SMITH, Circuit Judges,
                and POLLAK, District Judge.*


* Honorable Louis H. Pollak, Senior Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
                 (Filed: December 16, 2008)

Nathaniel H. Speights, Esq.
Speights & Mitchell
2600 Virginia Avenue N.W.
Suite 105
Washington, D.C. 20037-1916
Counsel for Appellant

Hugh M. Emory, Esq.
Ryan, Emory & Ryan
37 North Valley Road
Suite 105
Station Square Three
Paoli, PA 19301
Counsel for Appellee


                 OPINION OF THE COURT
                    _________________

POLLAK, District Judge.

       In this appeal, we review issues arising from a series of
summary judgment motions filed in a personal injury action.
First, we will address whether the District Court erred in
denying the plaintiff’s request for leave to amend his
complaint, a decision that resulted in one grant of summary
judgment to the defendants. Next, we will address plaintiff’s
challenge to the grant of summary judgment to the defendants
under Pennsylvania tort law. Lastly, we will review the


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District Court’s decision to deny, as moot, motions for
summary judgment filed by the defendants and a third-party
defendant based on releases signed by the plaintiff and his
father.

       We affirm both grants of summary judgment as well as
the disposition on the final set of motions.

I.     Background and procedural history

        On February 10, 2001, Anders Ellis Bjorgung
competed in a giant slalom race at Whitetail Ski Area in
Franklin County, Pennsylvania, as a member of the Ski
Liberty Race Club. The race was sponsored by the U.S. Ski
& Snowboard Association (USSSA), which obtained signed
liability releases from both Bjorgung and his father as a
condition of his participation. Bjorgung was seventeen years
old at the time, an expert skier and an experienced downhill
competitor. However, during his run, Bjorgung failed to
negotiate one of the turns, delineated by racing gates, and
skied into the woods where he struck a tree and was injured.
While Bjorgung cannot recollect any of the events of the race
day, he and his father both stated that his normal practice was
to inspect a race course before competing.

       On November 21, 2003, Bjorgung, a citizen of
Maryland, brought suit in diversity for his injuries in the
United States District Court for the Middle District of
Pennsylvania against USSSA, a Utah corporation, and two
other business entities – Whitetail Resort, LP, registered in
Delaware, and Whitetail Ski Company, Inc., a Pennsylvania


                              3
corporation. Bjorgung alleged in his complaint that the
defendants were negligent in designing and maintaining the
ski trail and race course. On January 20, 2004, all three
defendants filed an answer. Whitetail Resort and Whitetail
Ski Company denied that they owned the ski area on the date
of Bjorgung’s injuries. On January 23, 2004, USSSA,
pursuant to Fed. R. Civ. P. 14, filed a third-party complaint
against Bjorgung’s father seeking indemnity based on the
release he signed. In October 2006,1 the case was referred to
Magistrate Judge Smyser for pre-trial management and
discovery.

        In February 2007, the two Whitetail defendants moved
for partial summary judgment based on their denial of
ownership, and all three defendants filed a motion for
summary judgment based on Pennsylvania’s “Skier’s
Responsibility Act” and a separate motion based on “hold
harmless” releases signed by the Bjorgungs.           Also in
February, Bjorgung’s father moved for summary judgment on
the third-party complaint against him. On June 19, 2007, the
plaintiff filed his response to the first motion for summary
judgment; the response included a request for leave to amend
his complaint to name the proper owner of the resort.



1  While it does not bear on any of the issues presented by this
appeal, we note that on December 1, 2004, Chief Judge Kane
dismissed the suit due to failure by plaintiff’s counsel to follow
court orders. Bjorgung appealed, and this court reversed and
remanded for further proceedings. See Bjorgung v. Whitetail
Resort, 197 Fed.Appx. 124 (3d Cir. 2006).


                                4
       Magistrate Judge Smyser submitted his report and
recommendation on all the motions to Chief Judge Kane on
July 17, 2007.        Chief Judge Kane adopted these
recommendations, following her de novo review, and granted
summary judgment to Whitetail Resorts and Whitetail Ski
Co., finding they did not own the ski area at the time of the
accident. The judge also granted summary judgment to all
three defendants on the issue of tort liability. Lastly, Chief
Judge Kane denied as moot both the defendants’ summary
judgment motion based on the releases and Bjorgung’s
father’s motion for summary judgment to dismiss the third
party complaint.

II.   Denial of leave to amend the complaint

       The mountain resort where Bjorgung crashed had been
sold in 1999, two years before Bjorgung’s accident, to Snow
Time, Inc., which operated it through a wholly-owned
subsidiary, Whitetail Mountain Operating Corp. Accordingly,
the former owners, Whitetail Resort and Whitetail Ski
Company, named as defendants by Bjorgung, moved for
summary judgment and the District Court granted it. In doing
so, the District Court also denied plaintiff’s motion to amend
his complaint, in order to name the proper defendants, under
Fed. R. Civ. P. 15. Plaintiff appeals this procedural denial.




                              5
        The version of Rule 15 applicable to this case 2 stated
that, beyond the time for amendment as of right at the start of
a lawsuit, “a party may amend the party’s pleading only by
leave of the court or by written consent of the adverse party;
and leave shall be freely given when justice so requires.”
Fed. R. Civ. P. 15(a)(2007). The Third Circuit reviews a
district court decision refusing leave to amend under Rule
15(a) for abuse of discretion. 3 Cureton v. Nat’l Collegiate
Athl. Ass’n., 

, 272 (3d Cir. 2001). District courts
are the experts in the field of applied trial procedure, so
appellate courts should not be quick to reverse such decisions.
That said, we also have acknowledged that the liberal
pleading philosophy of the federal rules does limit a district
court’s discretion to deny leave to amend. Adams v. Gould,

, 864 (3d Cir. 1984). Delay alone will not
constitute grounds for denial. 

. The
district court has discretion to deny the request only if the
plaintiff’s delay in seeking to amend is undue, motivated by
bad faith, or prejudicial to the opposing party. 

. Delay becomes “undue,” and thereby creates
grounds for the district court to refuse leave, when it places an
unwarranted burden on the court or when the plaintiff has had
previous opportunities to amend. 

(citing 

; Lorenz v. CSX Corp., 

 Rule 15 underwent changes in organization effective
December 1, 2007. While these changes would not alter the
outcome of this case, we note that the District Court quite
properly applied the previous version of the rule.
3 Bjorgung appears to argue, incorrectly, that this issue is subject
to de novo review.


                                 6
1406, 1414 (3d Cir. 1993)). Thus, our review of the question
of undue delay in this appeal will “focus on the movant's
reasons for not amending sooner,” 

,
and we will balance these reasons against the burden of delay
on the District Court. Coventry v. U.S. Steel Corp., 

, 520 (3d Cir. 1988).

       Finally, as we proceed in this review, we defer to the
District Court’s findings of fact which may underlie its
decision – including findings of the Magistrate Judge adopted
by the District Court following its de novo review – unless we
find clear error. Cf. Morales v. Sun Contractors, 54

18, 221 (3d Cir. 2008). We note, however, that the appellant
does not appear to challenge any of the District Court’s
factual findings on this issue. He does seem to read the
District Court record differently than the District Court does –
a matter we will address below.

       The District Court found that the defendants alerted
Bjorgung to the fact that he was suing the wrong entities in
early 2004, and that he delayed three and one half years
before seeking leave to amend.4 Memorandum Opinion of
Sept. 28, 2008 at 7. The District Court also stated that

4 In his brief to this court, the plaintiff states, incorrectly and
without explanation of the statement’s import, that the District
Court was not notified of the sale of the ski mountain until
February 2007. In fact, the District Court was on notice when
the defendants filed their answer in early 2004. The important
fact, however, is that Bjorgung was on notice of the need to
amend in 2004.


                                7
Bjorgung did nothing about the problem with his complaint,
despite being on notice for this length of time, until he filed a
response to the defendants’ motion for summary judgment.

find that these circumstances represent “previous
opportunities to amend” under Cureton. Second, while Chief
Judge Kane did not say so expressly, we read her observation
that the motion to amend was filed “long after the close of
discovery” as referring, inter alia, to the burden tardily placed
on the District Court.

       Bjorgung had a straightforward, but very necessary,
job to do. He had to correct his complaint and begin to sue
the proper entities. The defendants placed him immediately
on notice of his error. And yet he waited over three years and
allowed the District Court to reach the brink of ruling
dispositively on the entire suit before he undertook to fulfill
his responsibility. To allow amendment at that point might
send the court through a substantial period of additional
discovery and motions. We find a considerable potential
burden in this, one that would warrant denial of leave to
amend under Rule 15 and Cureton unless Bjorgung produced
a persuasive explanation for his delay.

       Bjorgung offered no excuse or explanation to the
District Court for his delay, nor does he offer any reason for it
on appeal. Instead, he propounds an argument that the
District Court was barred under Pennsylvania law, and hence
under Erie R. Co. v. Tompkins, 

, 78 (1938), from
denying him leave to amend.             Bjorgung claims that
defendants’ lack of compliance with Commonwealth business
law, specifically the registration provisions of 15 Pa. C.S.A.


                               8
§§ 108 and 8506,5 caused him to sue the wrong entities
because he had no official notice of the change in ownership.
He then argues that the District Court, as the result of
defendants’ alleged noncompliance, was required to permit
him to amend, even at the eleventh hour. He cites treatises
and case law that he claims establish the proposition that a
business entity’s failure to adhere to these rules should, in no
event, confer a benefit on it in the course of litigation. The
District Court found these arguments unpersuasive. For the
reasons that follow, we agree.

       Assuming arguendo that defendants failed to register
correctly,6 it is not apparent why a state law infraction of this
sort should keep a federal court from applying the federal
rules of procedure under these facts. The treatises and the




5 Title 15 is Pennsylvania’s “Corporations and Unincorporated
Associations” code. Section 108 of the title sets Commonwealth
requirements for a change in location or status of the registered
agent of a business association.            Section 8506 sets
Commonwealth requirements for a limited partnership to
maintain, or note a change to, its registered office.
6 Whether the defendants have failed to comply with certain
requirements of Pennsylvania’s business law is not a matter that
this court need determine. We note, however, that the
defendants contend that they followed all required
Commonwealth procedures.


                               9
1959 federal case Bjorgung cites 7 all suggest that unregistered
movement by a business defendant should not result in
prejudice to a plaintiff suing that defendant entity. For
example, if the plaintiff serves the defendant corporation at an
old address, that defendant cannot successfully move to
dismiss for improper service of process if it has failed to
register a change of address. This, in fact, is the specific
prohibition enforced by Wentling v. Popular Science Publ’g
Co., 

, 660 (M.D. Pa. 1959), cited by
Bjorgung. Such a rule ensures fairness for the unsuspecting
plaintiff who comports himself properly and should not pay a
price for the procedural omissions of the defendant.

        The situation here, however, is quite different from
Wentling. The defendants did not seek any unforeseen
advantage, through federal civil procedure, out of their
alleged failure to follow the Commonwealth’s registration
procedure.     Nor did Bjorgung follow the federal rules
promptly and appropriately. Instead, the defendants informed
the plaintiff immediately that he needed to change his
complaint, the plaintiff did not respond, and, now, it is the
plaintiff who seeks an unintended advantage for having failed
to act in a timely fashion. These do not strike us as
appropriate circumstances for application, or extension, of the
Wentling rule.



7 Plaintiff cites to Summary of Pennsylvania Jurisprudence §
5.55 (2d Ed. 2001) and Standard Pennsylvania Practice §
2180(a) (2d Ed. 1997) as well as Wentling v. Popular Science
Publ’g Co., 

, 660 (M.D. Pa. 1959).


                              10
       In light of the lack of proper justification for delay, and
the guidance of Adams and Cureton, we find that the District
Court did not abuse its discretion by denying the plaintiff’s
request to amend under Rule 15. Accordingly, the District
Court’s grant of summary judgment to Whitetail Resort and
Whitetail Ski Company was proper.

III.   Assumption of the risk

        The District Court also granted summary judgment to
all three defendants because it found, as a matter of law, that
Bjorgung assumed the risk of his injuries, thus releasing the
defendants from any duty of care to him. Plaintiff argues that
outstanding issues of material fact existed, precluding
summary judgment. Bjorgung also argues that the District
Court made an error in its application of Pennsylvania tort law
concerning skiing accidents.

        Summary judgment is proper when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56. The district court must view the facts in the light most
favorable to the non-moving party, Merkle v. Upper Dublin
Sch. Dist., 

, 788 (3d Cir. 2000), but “the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment,” Anderson v. Liberty Lobby, Inc., 

, 247-48 (1986). As our review of a grant of
summary judgment is plenary, we operate under the same


                               11
legal standards as the District Court. Boyle v. Cty. of
Allegheny, Pa., 

, 393 (3d Cir. 1998).

        Pennsylvania applies the comparative negligence
doctrine to most tort claims, but its legislature specifically
retained the defense of assumption of the risk for suits
concerning injuries from the sport of downhill skiing. 42 Pa.
C.S.A. § 7102(c). The Pennsylvania Supreme Court has
interpreted this “Skier’s Responsibility Act” to mean that, as a
matter of law, a ski resort owes no duty of care to a skier for
any of the “inherent risks” of downhill skiing. Hughes v.
Seven Springs Farm, Inc., 

, 344 (Pa. 2000)
(holding that the owner of a recreation ski area bears no
liability to a skier who is struck on the mountain by another
skier). The court suggested in dicta, however, that the owner
of such a facility is not relieved of its duty to protect patrons
from foreseeably dangerous conditions not inherent to the
activity. 

v. Three Rivers Management
Corp., 

, 551 (Pa. 1978)). The Superior Court
found cause to apply this as a holding in Crews v. Seven
Springs Mountain Resort, 

, 105 (Pa. Super.
2005), where it ruled that a skier does not assume an “inherent
risk” of being struck on the slopes by an intoxicated teenager.
The Superior Court went on to define an inherent risk as “one
that cannot be removed without altering the fundamental
nature of skiing.” 

argues that his ability as a minor to
appreciate the risks he faced on the day of his injury remains
an outstanding factual issue that must go to a jury before the
court can consider whether 42 Pa. C.S.A. § 7102(c) and


                               12
Hughes apply. We disagree. Pennsylvania courts apply a
subjective standard, “concerning only what a particular minor
plaintiff knows, sees, hears, comprehends, and appreciates,”
to young people who allegedly assume a risk of injury.
Berman v. Phila. Bd. of Ed., 

, 550 (Pa. 1983)
(emphasis in original). We find that the record evidence fully
supported the District Court’s conclusion on this issue.
Bjorgung was an expert skier and a highly-experienced ski
racer. Both he and his father stated that it was Bjorgung’s
responsibility and regular practice to inspect any course where
he planned to race. Lastly, Bjorgung knew empirically and
from USSSA literature that ski racing was dangerous and
involved multiple hazards. Plaintiff alleges a factual dispute
here, but scrutiny of the record, even in the light most
favorable to Bjorgung as required under summary judgment
review, does not raise more than his bare allegation.

       The plaintiff then argues that the defendants’ motion
for summary judgment should have failed under 42 Pa. C.S.A.
§ 7102(c) and 

, because dangerous
conditions on the race course rendered the risks faced by
Bjorgung “not inherent” in the sport of skiing. We have
plenary review of this question of state law. High v. Balun,

, 325 (3d Cir. 1991). Plaintiff enumerates four
such conditions: lack of safety netting; course plotting that
directed skiers toward the left side of the trail; improper
placement of a course gate; and soft, loose snow “outside the
chemically treated part of the course.” Appellant’s Brief at
23. The last condition clearly falls under the basic rule of

, as a risk inherent in the sport of
skiing. The other three simply do not suggest application of


                              13
the Crews rule because they also appear altogether inherent in
the activity undertaken by the plaintiff. The cognizable risks
inherent in ski racing are legion. They certainly would
include a failure by staff of a ski resort to (1) set netting in all
spots where it might prove necessary, and (2) fix a race course
in a way that minimizes the potential for the competitors to
lose control. To decide otherwise would nullify 42 Pa. C.S.A.
§ 7102(c) in the context of competitive skiing and replace it
with a negligence standard. Accordingly, we will affirm the
District Court’s grant of summary judgment on the issue of
plaintiff’s assumption of the risk.

IV.    District Court’s denial of the remaining motions

       The District Court denied as moot two additional
motions for summary judgment. The first motion, filed by all
three defendants, was based on the USSSA releases signed by
both Bjorgung and his father. The second motion was filed
by Bjorgung’s father who sought summary judgment on the
third-party complaint against him. We agree that these
motions were rendered moot by the District Court’s ruling
that plaintiff assumed the risk and that the defendants owed
Bjorgung no duty of care.




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