• July 22, 2013

When I first started practicing as a plaintiff injury lawyer nearly 30 years ago I started working on a school liability case and recall learning of the demise of sovereign immunity during the 60s and 70s.  The Minnesota Supreme Court struck down immunity, finding it lacked a sufficient justification to carve out an exception to the general rule of tort law that liability should follow tortious conduct causing harm.  The Court’s view of governmental immunity was best stated in Nieting v. Blondell, “If the State is to properly serve the public interest, it must strive, through its laws, to achieve the goals of protecting the people and of providing them with adequate remedies for injuries wrongfully inflicted upon them”.    There was a bit of a back and forth between the courts and the legislature about just what remnants of immunity should be retained, but by and large they agreed upon a system that made governmental negligence subject to civil liability like everyone else.  Exceptions to this approach included statutes shielding “discretionary” governmental action and liability for use of some “recreational” resources.

Over the years, governmental liability in Minnesota has become the incredible shrinking public policy.  Today it is very hard to hold government responsible for even the most egregious incompetence or neglect of duty.  A host of immunity doctrines, largely the product of court decisions beginning in the 90s, have created a common law immunity shield over nearly all levels of government.  As taxpayers, we might be tempted to think that is not such a bad thing.  But every now and then a case comes along that makes one wonder.  Are we paying too high a price as a society when we create a situation in which our government can no longer be held responsible to do the basic common sense things needed for protection of public safety?

Such a case is pending in Washington County, awaiting a trial court decision on motions to dismiss based mostly on immunity statutes and court created immunity doctrines.  The story of this case is compelling and a profound tragedy.

On a beautiful summer day in 2012, young Jack Ariola Erenberg, age 9, went swimming at a public beach in one of our “10,000 Lakes,” Lily Lake in suburban Washington County.  Signs posted warned the public about the spread of milfoil and of the dangers associated with swimming when there was no life guard in attendance. Duly warned, Jack seemed to safely enjoy a beautiful and refreshing summer day at the beach.  What his parents could not see or know of, however, was a microscopic deadly amoeba lurking in the lake.  This unseen organism entered Jack’s nasal passages and within days attacked his brain, making him deathly ill and rapidly taking his life.   Jack’s family was unaware that two years earlier a lovely 7 year-old girl died of the same infection from swimming at the same beach.  Extensive public health and medical investigation into her tragic death gave rise to precise information that informed the local government officials in charge of this beach of what this deadly organism was.  Testing done in 2011 and 2012 confirmed the continuing presence of this deadly organism in this lake.

What did our local government officials do with this information?  Apparently not much, thinking the danger too remote.  The beach was not shut down, nor was the danger revealed to the unsuspecting public until after Jack’s death.  Jack’s death was completely unnecessary and entirely avoidable.    Jack’s family now seeks its day in court to at least argue that the government should be accountable, just as would occur with any private individual, business or enterprise that is alleged to have failed to perform its duty of care toward the safety of others.

The family awaits the court’s ruling on whether the government may even be held to answer for their inaction and to defend the decisions that may have played a part in this tragic loss.

By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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