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If a guest swims in your pool, becomes ill and dies due to a dangerous bacteria or parasite that was present in your pool, under a negligence theory you would likely be legally liable for your guest’s death, particularly if you were aware of the danger and did not inform your guest. What if a parasite was in a pond on public property where people regularly waded and swam?  What if the town where the pond was located knew that a dangerous parasite existed in this pond, but failed to warn the public?  In a potentially precedent-setting case in Minnesota the parents of 9-year-old Jack Ariola are suing the Minnesota Department of Health, the city of Stillwater, and Washington County for his wrongful death claiming that the three entities failed to properly warn the public of the danger.  Jack Ariola died in August 2012 from a rare form of meningitis  days after swimming in Lily Lake in Stillwater, Minnesota which had the rare parasite Naegleria fowleri.  The flesh-eating parasite entered Jack’s body through his nose and attacked his brain. Two years earlier, a 7-year-old Stillwater girl died from the same parasite.

The basis of any negligence lawsuit is that the defendant owes a duty of care, failed to exercise reasonable care and the result was harm to the victim.  For example, if you walk into a grocery store and fall on a wet spot on the floor, the store would be negligent if its employees were aware of the hazard and failed to do anything about it.  The same would likely be true if you were injured from a known hazard in a private residence.

However, because Ariola was in a recreational area, suing these governmental entities presents a unique hurdle.  Minnesota has a “recreational immunity” statute that is meant to promote health and welfare by encouraging the beneficial recreational use of property.  The statute provides that if property is used for recreational purposes, then the owner does not owe a duty of care to make sure that it is safe.  Furthermore, the statute provides that the owner owes no duty to warn the public of any dangerous condition on the land.   Based on recreational immunity, all three Ariola defendants have moved to dismiss the lawsuit.   Ariola seems to tacitly acknowledge that his case is problematic because of the recreational immunity statute.  He appears to even urge presiding Judge Susan Miles to take a precedent-setting, common sense approach to the issue.  Ariola simply feels that  the government should not be able to hide information.   The day after Jack died  a sign was erected warning of the danger.

Judge Miles is yet to rule on this case.  While the recreational immunity statute arguably protects the defendants from liability, it is curious that no public entity took the relatively simple and inexpensive step of erecting warning signs in the area prior to Jack’s death.  In other jurisdictions when dangerous conditions are found in recreational areas the government steps in to protect the safety of the public.  In the Chicago area, for example, beaches are routinely closed when high levels of E. coli bacteria are found in the water.  If the policy behind the recreational immunity statute is to promote health and welfare, should the government be exempt from taking even the most basic steps to ensure the health and welfare of those using the recreational property?

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