A decision on a motion in the wrongful death lawsuit in connection with the death of a 9-year-old boy after he swam in Stillwater’s Lily Lake was continued Friday for 90 days after Scottsdale, Ariz., lawyer Roger Strassburg, representing the boy’s father, filed a second amended complaint demanding a jury trial.
Jack Ariola Erenberg died Aug. 6, 2012, after contracting primary amebic meningoencephalitis (PAM) from a Naeglaria Fowleri amoeba following a swim in Lily Lake.
The new motion comes within a 90-day requested decision-making period by 10th Judicial District Judge Susan Miles. The previous motion asked Miles to dismiss the lawsuit and was filed by attorneys representing the city of Stillwater, Washington County and the Minnesota Department of Health.
The arguments presented Friday were similar to those presented by both sides at a previous hearing this summer. Strassburg claims the amoeba that killed Ariola Erenberg is caused by artificial outliers including the shallowness of the swimming beach and the stormwater runoff into the lake. He also claimed that while adults accompanied Erenberg to the lake, the adults wouldn’t have been aware the amoeba was in the water due to absence of warning signs after the death of Annie Bahneman in 2010 was attributed to PAM contracted from the amoeba in Lily Lake.
He added that the negligence on the part of the city, county and state governments contributed to the cause of Erenberg’s death.
Attorneys for the state, city and county argued that Strassburg referred to the amoeba as an animal in his brief. They also argued that the amoeba is not something created by government and naturally occurs in the lake, exempting the governments from responsibility.
“The proposed amendments can’t defeat recreational use immunity and the presented complaint is within the trespassers exception. There is no proof that the amoeba is artificial and the Department of Health is not in possession of the land and therefore has no control over it,” said MDH Attorney Jennifer Coates.
“When it comes to being artificial, I know of no lake in the world that doesn’t have stormwater draining into it,” added attorney Pete Regnier, representing the city. He went on to say, “The case claims that it was an amoeba that killed Jack, and as far as the amoeba being artificial, there’s no way on God’s green earth that the city of Stillwater could create an amoeba.”
“To be honest, I don’t know why we’re even here,” said Scott Anderson, the county’s attorney. “The more I hear, the more firmly I‘m convinced that this is an illegal motion to reconsider. We’re not here on a motion to amend a complaint. If I’d heard the first part of the presentation for the first time, you’d think there were new allegations of stormwater runoff. But these arguments were all made in the first amended complaint. The things Mr. Strassburg have highlighted are not new, it’s simply repackaging the claim in a new way.”
Anderson added that the facts of the case can be argued with the Public Duty Doctrine which exempts governments from liability.
Strassburg went on to quote from the Domagala law that if the defendant creates a foreseeable risk of injury, the defendant owes a duty of reasonable care with respect to persons or property placed at risk because of that conduct.
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