It could be three months before a Washington County judge rules on a motion to dismiss a wrongful death lawsuit filed by the Scottsdale, Ariz. lawyer representing the father of Jack Ariola Erenberg, the 9-year-old boy who died after contracting primary amebic meningoencephalitis (PAM) from an amoeba after swimming in Lily Lake last summer.
Tenth Judicial District Judge Susan Miles heard arguments last Friday regarding the motion to dismiss filed by the Minnesota Department of Health, Washington County, city of Stillwater and the city’s Parks and Recreation Commission.
“It’s an important case and in court, important cases take longer to decide, so I’m going to ask for 90 days to get my decision out. I’ll likely take the full 90 days and if necessary, I’ll call you back for a Rule 16 hearing,” Miles told attorneys for both sides.
Ariola Erenberg died Aug. 6 after he contracted PAM from Naeglaria fowleri, a water-dwelling microorganism, after swimming in Lily Lake. The lake was closed to swimming the day after his death and remains closed to swimmers.
Ariola Erenberg was the second child to contract the disease after swimming Lily Lake. Seven-year-old Annie Bahneman was confirmed to have died from PAM two years ago.
The amoeba is found in warm freshwater and PAM is contracted after it travels through a swimmer’s nose to their brain.
The facts of the case involve the deaths of Ariola Erenberg, Bahneman and Hailee LaMeyer of Chisago County, who contracted PAM, the same disease that caused Ariola Erenberg’s death.
In court Friday, most of the arguments centered around what the responsibilities of government entities are to the public and their abilities to control other facets of government.
During arguments, Strassburg claimed that Lily Lake was not in its natural state because of storm water runoff that ends up in the lake and the facilities that have been built around it. He added that the amoeba was a hidden entity that the government knew about and should have reported to the public.
“When the risk is hidden, as in the Davies v. Land O’ Lakes case, when only the people who know it’s there are those who have done the test and know the amoeba exists, why is there this exception in the law to begin with. The scope of the exception is limited by the purpose of public policy to incentivize governments to disclose information so the government can be able to self protect,” Strassburg said.
“You talk about hidden conditions,” said Pete Regnier, attorney for the city of Stillwater. “In the Land O’’ Lakes case, the hole that case centered around was admittedly created by the landowner. We didn’t create the amoeba.”
Regnier added that Lily Lake was in it’s natural state and Strassburg’s argument that it was a drainage area for storm water was unfounded because all lakes in Minnesota deal with runoff sending fertilizer, grass clippings and other items in to their waters.
Attorney for the Washington County, Scott Anderson, added that the county was not responsible for the amoeba, saying the county didn’t own the land or facilities surrounding the lake and had no power to control the city in their choices for storm water runoff areas. He added that the only thing he saw in Stassburg’s lawsuit were options on what the county, city and MDH could do to manage the lake.
“The plaintiff’s complaint itself does nothing but set further options that the county could’ve entered into in this case. It shows that this issue is the epitome of a complex multi-faceted issue that calls for discretion,” Anderson said.
“But the bottom line here is that the street classes of persons held Lily Lake out as safe for swimming,” Strassburg responded.
Attorneys for the government entities said they didn’t have the power to control the other facets of the government and added that they didn’t have an individual responsibility to Ariola Erenberg, but to the public at large.
“The government is not above the law here,” Strassburg said. “They’re trying to say they have no duty to the public. It says health on the front door but it’s not really what they do. They don’t enforce or permit or disclose information that people need to know.”
“What Mr. Strassburg seems to do is ask the core of the courts to ignore the law, and look at the facts. You have to look at it as what he wants it to be and what he wishes it was. There is no law that gives the MDH the ability to force the city or the county to do something and the rules don’t give us the authority to do that,” said MDH attorney Jennifer Coates.
Contact Avery Cropp at [email protected]