Court hears Lily Lake case appeal

Jack Ariola Erenberg

Jack Ariola Erenberg

James Ariola, whose son died in 2012 after swimming in Lily Lake, wants his lawsuit against the city of Stillwater, Washington County and the Minnesota Department of Health to go to trial. Whether it should have that chance is now up to a three-judge panel of the Minnesota Court of Appeals, which heard oral arguments July 31.

Jack Ariola Erenberg died at age 9 of a rare amoebic infection known as primary amoebic meningocephalitis, after swimming in Lily Lake in Stillwater. His death came two years after the death of 7-year-old Annie Bahneman, who also contracted the disease after swimming in several bodies of water, including Lily Lake.

According to Ariola’s attorney, Roger Strassburg, after Bahneman’s death the government tested Lily Lake, Little Carnelian Lake and the St. Croix River, the three bodies of water where she swam. He said only samples from Lily Lake contained the amoeba.

At that point, he believes, the city had the responsibility to take action, and the county had a duty to ensure it did so.

Scott T. Anderson, the attorney representing the county, said the arguments for the defendants remain the same as before. The public entities have claimed they’re not liable because the amoeba occurs naturally in the environment and because they’re protected under the state’s recreational immunity statute. That statute provides protection from much of the potential liability associated with operating parks and recreational areas. Anderson said the county and state also argued that the applicable state health laws are meant to protect the public as a whole and do not create a specific duty to any individual.

District court judge Susan Miles dismissed the lawsuit in December 2013, noting in a memorandum that recreational 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.

“Governmental immunity, when applicable in any of its several forms, is an absolute bar to suit,” Miles’ memo stated.

Strassburg disagrees, saying he believes this case fits the exception to state immunity law.

“We believe that the exception to immunity for recreational users applies and requires a duty on the part of the city to warn the public with the same kind of warnings … put up about a year after Jack’s death,” he said. “They put up a sign that said ‘swimmer advisory’ and explained that two people had died … We think that the defendants had an obligation to put that sign up before Jack died.”

Strassburg hopes this case will set a precedent. He said his goal is “to establish in Minnesota that governmental entities that operate improvements at public parks and come into actual knowledge of (serious hidden) dangers in those parks … those governmental agencies have a duty to disclose to the public, in warnings, that information.”

The three judge panel — consisting of Natalie Hudson, Larry Stauber and Michael Kirk — has 90 days after the arguments to issue a decision. It could uphold, in part or in whole, Miles’ decision to dismiss the case, or it could overturn the decision entirely.

Contact Jonathan Young at jonathan.young@ecm-inc.com

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