DULUTH – A California woman is suing the city of Duluth in federal court for more than $75,000 after she allegedly tripped on a pothole downtown and broke her ankle and foot.
Lawyers for Kathleen Petrow say she was getting out of a vehicle on E. Third Street near the Essentia Health clinic and hospital on April 27, 2019, when she tripped over a pothole she could not see because an overhead light was not working.
The suit, filed in February last year, says her injury "has permanently disabled her from her employment as a flight attendant for Southwest Airlines, where she was paid more than $40,000 per year. The injury has cost more than $25,000 in medical expense. She has had to undergo a lengthy and painful recuperation from the injury."
But the city wrote in court filings that Petrow's "own negligence caused her injury" and that she "tripped at a joint between concrete curb and gutter sections, where some separation is a necessary and expected feature for Duluth's widely changing weather."
The city also said it is shielded by state law from lawsuits over potholes due to "discretionary acts immunity," a state statute that covers claims "based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused."
Duluth attorneys go further in this case saying the city "did not have notice and opportunity to correct the alleged defect in its streets, and did not owe or breach any duty of care."
The city sought to have the case dismissed, but a judge allowed it to proceed last summer. It has dragged on since, with the city unable to get a deposition from Petrow to date due to "lateness and incompleteness of the responses" for evidence, including medical records, according to court filings.
At a hearing Tuesday, Judge Leo Brisbois said he would set aside more time ahead of a potential trial, which was set for Sept. 1 at the earliest.
Many Duluth city streets are notoriously pothole-laden, and in 2017 residents voted overwhelmingly to increase the local sales tax by a half-percent in order to fix more of them faster. Last year was the first time the money was put toward road projects after the tax went into effect in October 2019.
Brooks Johnson • 218-491-6496