Ariola v. City of Stillwater

• Decision Date: 23 January 2017
• Docket Number: A16-0750
• Citation: 889 N.W.2d 340
• Parties: James ARIOLA, as next of kin of, and trustee for, the Estate of Jack Ariola Erenberg, his son, and the Class of Beneficiaries, Pursuant to Minn. Stat. 573.02, Appellant, v. The CITY OF STILLWATER, Minnesota, Respondent.
• Court: Minnesota Court of Appeals

889 N.W.2d 340

James ARIOLA, as next of kin of, and trustee for, the Estate of Jack Ariola Erenberg, his son, and the Class of Beneficiaries, Pursuant to Minn. Stat. 573.02, Appellant,

v.The CITY OF STILLWATER, Minnesota, Respondent.

A16-0750

Court of Appeals of Minnesota.

Filed January 23, 2017

Review Denied April 18, 2017

John R. Neve and Evan H. Weiner, Neve Webb, PLLC, Minneapolis, Minnesota (for appellant).

Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O'Brien, PLLP, Lake Elmo, Minnesota (for respondent).

Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold, Judge.

OPINION

BRATVOLD, Judge

Appellant James Ariola, as next of kin and trustee of the estate of his son, Jack Ariola Erenberg, appeals the district court's judgment dismissing his wrongful-death action against respondent City of Stillwater (the city) and the judgment taxing costs and disbursements against him personally. The district court granted the city's summary-judgment motion, dismissing the complaint with prejudice on two independent grounds. First, the district court found that it lacked subject-matter jurisdiction because Ariola did not file a trustee's oath within the three-year statute-of-limitations period for bringing a wrongful-death lawsuit. Second, the district court determined that the city was entitled to statutory recreational-use immunity. The district court concluded that no genuine issue of material fact was raised regarding whether the city had actual knowledge of an artificial condition likely to cause death or serious bodily harm under the adult trespasser exception to recreational-use immunity. We affirm in part, reverse in part, and remand for three reasons.

First, we conclude that the district court erred by dismissing Ariola's complaint for lack of subject-matter jurisdiction because Ariola is a duly appointed trustee, he timely filed this wrongful-death action, and the oath requirement in the wrongful-death statute is not a jurisdictional requirement.

Second, regarding recreational-use immunity, we hold that the adult trespasser exception requires a municipality to have actual knowledge of an artificial condition likely to cause death or serious bodily harm. Because the evidence Ariola submitted on summary judgment does not create a genuine issue of material fact that the city had actual knowledge of a danger, we affirm the district court's grant of summary judgment to the city.

Third, the district court made no finding of mismanagement or bad faith by Ariola under Minn. Stat. § 549.14 (2016). Thus, we reverse the district court's judgment of costs and disbursements against Ariola personally and remand to the district court for further proceedings consistent with this opinion.

FACTS

This is the second appeal in a wrongful-death lawsuit arising out of the death of nine-year-old Jack on August 6, 2012. See Ariola v. City of Stillwater , No. A14–0181, 2014 WL 5419809 (Minn. App. Oct. 29, 2014), review denied (Minn. Jan. 20, 2015). Jack died from primary amoebic meningoencephalitis

(PAM), a brain infection that is 99% fatal. PAM is extremely rare. From 1962 to 2012, there were only 128 reported cases of PAM in the United States. Before 2010, there had never been a reported case of PAM as far north as Minnesota. PAM is caused by an amoeba in the water called Naegleria fowleri (NF). NF is unicellular and invisible to the human eye. It becomes dangerous to humans when it enters the nose and travels up the nasal passage into the brain.

In early August 2012, Jack was exposed to NF while swimming in Lily Lake, a body of fresh, untreated water located in the city of Stillwater. The lake abuts Lily Lake Park, which the city owns and maintains. The city improved Lily Lake by constructing park facilities, including grills, a beach area, tennis courts, a dock, and a boat ramp. Lily Lake beach is the city's only public swimming beach. The city maintains the beach by grading it and adding sand above the water level.

In response to the city's summary-judgment motion, Ariola advanced two theories to explain NF's presence in Lily Lake. First, Ariola argued that NF occurred because the city constructed a storm-water system that directed runoff from a 587-acre, fully developed urban watershed into Lily Lake. The city's system was developed before "implementation of regulations requiring stormwater treatment, [and] there is minimal pretreatment of [the] runoff." One of the pipes is located within 30 meters of the public swimming area. Ariola's experts opined that "[t]here is a high probability that the untreated storm water run-off into Lily Lake was the source of the population of" NF in Lily Lake, and "[t]he presence of a zone of shallow waters would promote the growth of ameba [sic] populations in the warmer months."

Second, Ariola offered evidence that the city knew about pollution in Lily Lake but failed to remedy it. In the late 1990s and early 2000s, a citizen group started a campaign to improve Lily Lake's water quality and to raise awareness that storm-water runoff polluted Lily Lake.¹ Between 1995 and 2001, the city received six complaints from the citizen group, urging the city to adopt a plan to divert runoff away from Lily Lake or to filter the water.

In June 1996, the city collaborated with the citizen group to develop a three-step plan to improve Lily Lake's water quality; specifically, that the city would construct three drainage and treatment systems to divert the flow of storm water into Lily Lake. Although the plan was approved by the city, only one of the three steps was completed.

The city took other steps to improve Lily Lake.² Despite these efforts, in 2006, Lily Lake was on the Minnesota Pollution Control Agency's "impaired waters" list, due to excessive nutrients and mercury in the water. In response, the city hired a consulting firm in 2007 to prepare a lake-management plan, which concluded that, while there is excess phosphorus and chlorophyll-a in Lily Lake, "water clarity is relatively good, with most years at or better than the State standard for deep lakes."

Ariola also claimed that the city should have known about NF because seven-year-old A.B., a Stillwater resident, died from PAM in August 2010. A.B.'s death was the first reported case of PAM in Minnesota, "the northernmost" state in which the infection had been confirmed. Media reaction to A.B.'s death was substantial. The Star Tribune , Pioneer Press , and Stillwater Gazette reported in August and September 2010 that A.B. contracted PAM after swimming in three Washington County bodies of water, including Lily Lake, in the last few weeks before her death.³ The articles also reported comments by state officials that NF is extremely rare, it was "impossible" to trace A.B.'s death to a particular body of water, the state had no plans to test local lakes for NF, the risk of NF to swimmers was "minuscule," and it was safe to continue swimming in Minnesota lakes.

Washington County, the Minnesota Department of Health (MDH), and the Centers for Disease Control (CDC) investigated A.B.'s death. In August and September 2010, the county assisted the MDH in collecting water and sediment samples from the three bodies of water in which A.B. swam to determine which had NF. In a September 1, 2010 e-mail, county employees were notified of a Star Tribune article reporting on A.B.'s death. The text of the e-mail states, in part: "Local units of government were unaware of potential relationship between illness and body of water in their jurisdiction." On September 15, 2010, the MDH notified the county that Lily Lake water and sediment samples tested positive for NF.

In November 2010, two MDH investigators told A.B.'s mother that NF in Lily Lake had caused her daughter's death. A.B.'s mother testified that the MDH did not tell her to keep this information confidential, and she assumed that the MDH would share the information with the city. A.B.'s mother also testified that, while she disclosed the cause of her daughter's death to her friends and family, she did not tell the city.

In 2011 and 2012, the county partnered with the CDC to take water and sediment samples from ten lakes in Minnesota, including Lily Lake. In 2011, Lily Lake was one of five lakes that tested positive for NF. On July 13, 2012, before the 2012 samples were collected, an MDH employee told the county that he was "nervous about the potential for more PAM cases given the extremely hot weather we've been having." On August 17, 2012, after Jack's death, the CDC notified the county that Lily Lake's sediment samples contained NF.

The city administrator and city engineer/public works director testified that the city has no public health department and relies on the county for information. City testimony also established that it has a close relationship with the county, and the city would have expected the county to share important public health information. Yet, the Washington County Director of the Public Health and Environment Department stated in an affidavit that the county partnered only with the CDC and MDH in investigating A.B.'s death.⁴

In January 2012, the Oxford University Press published a scholarly article in the journal, Clinical Infectious Diseases , titled "Fatal Naegleria fowleri Infection Acquired in Minnesota: Possible Expanded Range of a Deadly Thermophilic Organism." The article describes a young girl as the first person to die from PAM in Minnesota and discusses water and sediment sampling of the three bodies of water in which the girl swam in the last few weeks before her death. The article states that all three bodies of water are located in Washington County, Minnesota, but does not specifically mention their names; rather, the article refers to a river, "Lake A," and "Lake B." The article reports that Lake A tested positive for NF and provides a photograph of Lake A. Testimony offered by Ariola establishes that the "Lake A" photograph is recognizable as Lily Lake.

Ariola...