Lily Lake case dismissed, appeal likely

Jack Ariola Erenberg

Jack Ariola Erenberg

The lawsuit stemming from the August 2012 death of 9-year-old Jack Ariola Erenberg after being exposed to an amoeba after a late-summer swim in Lily Lake was closed  and dismissed with a judgment from 10th District Court Judge Susan Miles Dec. 5.

The lawsuit, filed by the boy’s father Jim Ariola, charged the city of Stillwater, the city’s Parks and Recreation Commission, Washington County and the state Department of Health with wrongful death, negligence, failure to warn and violation of regulations in the death of Jack Ariola Erenberg after the boy contracted primary amoebic meningocephalitis (PAM) from an amoeba in Lily Lake in early August 2012.

Ariola Erenberg’s death came just two years after the death of 7-year-old Annie Bahneman, also from PAM, which occurred after she swam in various lakes, including Lily Lake.

Ariola’s Scottsdale, Ariz., lawyer Roger Strassburg argued the public entities negligently failed to remediate the danger of the amoeba, negligently failed to adequately warn about the amoeba and that the county and health department aided and abetted the city’s negligence.

The public entities maintained that they were immune from any liability under the doctrine of recreational use immunity and that they are immune because the amoeba was a wild animal. The county and MDH also said they owed no specific duty to Ariola Erenberg.

Judge Miles noted in her judgment memorandum that Strassburg had not alleged legally sufficient facts to make a claim against the public entities. She also noted that the recreational use immunity bars lawsuits in such cases in order to promote the development of areas open to the public for enjoyment without leaving state and local governments responsible for naturally occurring issues.

“The public entities claim that the Plaintiff’s First Amended Complaint must be dismissed because recreational use immunity bars this action,” the memo states. “If they are correct, the court has no alternative under the law but to dismiss this action, no matter how draconian that result may seem. In short, if everything contained in the Plaintiff’s First Amended Complaint is taken to be true but the Court determines the public entities are immune from suit, then Plaintiff has failed to state a claim upon which relief can be granted. Governmental immunity, when applicable in any of its several forms, is an absolute bar to suit.”

In this case the recreational use immunity law exonerated all three public entities. The fact that the amoeba is a naturally occurring part of the environment also played a role in the decision.

“Asthma attacks can be triggered by poor air quality and mold,” Miles states in the memo. “Tuberculosis can be triggered by airborne pathogens. Cancer can be caused by any of a number of environmental conditions. As difficult as they are to accept, these conditions, infections and diseases arise from naturally occurring catalysts. The genesis of these catalysts is subject to debate in many circumstances, but nevertheless they are inherent in our environment.”

Miles also determined that the public entities did not have a special duty to Ariola Erenberg.

“If the county and MDH owed a special duty to Jack here, then MDH and every county in this state would have a ‘special duty’ to any person who ever utilized a lake in this state,” the memo says. “These public entities would, in turn, be subject to unfettered liability for every conceivable harm, small and great, and effectively serve as au gratis insurance companies.

Judge Miles issued an order granting the dismissal of the case with prejudice, meaning no new action can be filed in the case, though it can be appealed to a higher judge. Strassburg has indicated that he plans to file an appeal.

The memo concludes:

“Although the Court is sympathetic to the tragic loss of Jack’s life and his family’s loss of his companionship, it is powerless to create a remedy where none exist in the law. Where, as here the loss is caused by a natural condition found in the environment, neither the law nor public policy should place a burden on taxpayers to absorb the economic burden of the harm.”

Contact Avery Cropp at avery.cropp@ecm-inc.com

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