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Tom Olsen, Forum News Service, Published December 26 2013

Lawsuit alleges tot was burned on Duluth manhole cover

DULUTH, Minn. - Megan and Troy Brown were visiting Duluth for a relative’s wedding on Aug. 26, 2011, when they decided to stop on the Lakewalk for a photo in front of the Aerial Lift Bridge.

It was then that their 2-year-old son, Jacob, tripped and fell on a scalding hot manhole cover that left him with second-degree burns above his ankle, a lawsuit alleges.

The Browns, who live in Canton, Ga., are seeking more than $50,000 from the Duluth Steam Cooperative, which at the time operated the city’s steam plant.

“Who would ever think that a manhole cover would be in excess of 140 degrees?” Eden Prairie attorney Donald Mark asked Monday outside a St. Louis County courtroom after a pretrial conference. “Nobody who lives in this city or visits this city should have to worry about getting burned by a manhole cover.”

It will be up to a jury to decide whether damages are warranted. A trial date has tentatively been set for Jan. 7, but Judge John DeSanto warned attorneys Monday that the case could get pushed back.

Mark said he fully expects the case to go to trial.

“There’s no indication that they have any real interest in resolving this case,” he said.

Duluth attorney Steve Reyelts, who is representing Duluth Steam, declined to comment on the case, saying it would be inappropriate to discuss pending litigation. However, in court documents, he has denied that Duluth Steam should be responsible for any damages.

The city’s steam plant, which provides heating services to about 175 buildings in Canal Park and downtown Duluth, is currently operated by St. Paul-based Ever-Green Energy, which took over management last year from Duluth Steam, a members cooperative that has since dissolved.

The city retains ownership of the utility, but pays Ever-Green just over $250,000 a year to operate the plant under the terms of a contract that runs through 2017.

Duluth City Attorney Gunnar Johnson deferred to Reyelts for comment and declined to say whether the city could be responsible for paying any damages.

Although the suit was filed against a now-dissolved company, Mark said Ever-Green would be responsible for any liabilities that it inherited from Duluth Steam.

According to the suit, 2-year-old Jacob Brown was on a public sidewalk in Canal Park when he fell onto the manhole cover operated by Duluth Steam. The boy was wearing shorts and his exposed right leg made direct contact with a raised piece of metal on the cover, according to the suit.

Brown’s parents rushed him to the emergency room, where he was treated and released. In the months following, he also required medical care at a burn center in Georgia.

The suit, filed Feb. 4 in St. Louis County, claims negligence by Duluth Steam, alleging that it failed to take the proper steps to prevent the “dangerous condition created by the superheated manhole cover.”

The plaintiffs initially went to the city of Duluth to file a claim, but were instructed by a city claims adjuster to file it with Duluth Steam and its insurance company. The cooperative’s insurance company, Western National Mutual Insurance Co., refused to cooperate with the request, the suit alleges.

At trial, Mark said he will call an expert witness to testify that safer technology was available and that the utility could have prevented Jacob Brown’s injuries.

According to court documents filed as part of the complaint, medical expenses for Jacob Brown are estimated at more than $8,300. The suit also claims past and future pain and suffering in the amount of $80,000, and emotional distress in the amount of $60,000.

In his answer to the complaint, Reyelts states that the company does not have specific knowledge as to whether the factual claims are true, but denies that Duluth Steam was negligent.

“(Defendant) affirmatively alleges that the injuries and damages complained of by Plaintiffs were proximately caused by Plaintiffs’ own actions, carelessness, or negligence, which bars recovery or limits recovery by the extent of Plaintiffs’ comparative fault,” Reyelts wrote.

Judge DeSanto previously denied a plaintiff motion to add punitive damages to the suit. Mark said he may appeal that ruling after a trial is held.

An Ever-Green official did not return a phone call seeking comment Monday. Michael Burns, the company’s senior vice president of operations, said in June that Duluth’s coal-fired system is highly inefficient and that the company would look at converting to a hot water system.

“It’s less efficient to transport a heated gas (steam) versus a hot liquid, and most of the city’s aging infrastructure doesn’t have the kind of insulation a new hot water line would,” Burns said in June.