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Bjorgung v. Whitetail Resort

December 16, 2008

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.

The opinion of the court was delivered by: Pollak, District Judge

PRECEDENTIAL

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

Before: RENDELL and SMITH, Circuit Judges, and POLLAK, District Judge.*fn1

OPINION

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 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 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,*fn2 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.

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 ...


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