The personal injury suit of a man who broke his leg outside of a University of Minnesota-Duluth campus building will finally go to trial next week with trained lawyers arguing on only one side of the case.
Without any legal representation, 64-year-old Henry Orensten will bring his “smoking guns” of “rock-hard evidence” to trial against the University on Monday after limping through court proceedings for more than five years.
Orensten claims the University failed to mark the construction site where the fall occurred. The University claims there was no construction and it is therefore not responsible.
Breaking Soil
It seemed like the good thing to do, said Orensten, to grab the cigarette butt he had just tossed into the shrubbery and put it in the proper receptacle.
Then Orensten, an inventor and substitute teacher who was on campus for an inventors meeting, said he stepped into the fresh but solid-looking dirt outside of the Natural Resources Research Building on the UMD campus — and sunk in deep. He stuck his other leg in for leverage to pull himself out and promptly got it stuck as well.
Struggling to get loose, his momentum spun his body and dropped him to the ground.
Three bones broke in his right leg on that day — May 21, 1993. He said he spent three days in the hospital, “doped up on Demerol.”
Without the more than $12,000 to pay the hospital bills, and with his credit decimated, Orensten said he spent three years living in his 1979 GMC van that he converted into a camper.
Orensten filed suit against the University on Sept. 20, 1993, alleging negligence and wrongdoing. He claims the soft soil that twisted and broke his leg was part of a landscaping work site that was not properly marked. He is asking for damages in excess of $50,000.
Bill Donohue, associate general counsel for the University, said the case lacks merit.
The suit hinges on whether or not Orensten can prove the University was actually doing construction on the shrubbery bed that Orensten sank into.
While the University admits the building was under construction, it was at a totally different part of the building, Donohue said, clearing the University of any liability.
“The soil conditions were open and obvious to anybody,” Donohue said. “He should have been able to see it.”
And Orensten agrees there was construction on another part of the building.
“The construction going on was not at the construction scene, it was 100 feet away,” Orensten said. “But landscaping was going on.”

‘David and Goliath’
After five years of legal wrangling, the suit is still active. Trial is set for Oct. 19.
Orensten subpoenaed two witnesses in an attempt to prove that construction was active at the time and place of his fall.
After being released from the hospital, Orensten took photos of the accident scene in June 1993. He hopes those pictures will illustrate that the shrubs at the site were planted recently after the accident.
In a sworn deposition, witness Ken Hammarlund Jr., owner of a nursery that contracts landscaping jobs for the University, testified that the shrubbery pictured could not have been in the ground for more than a year.
But in another sworn deposition, witness Glen Simmonds, a Duluth Facilities Management Landscaping Manager, said Orensten’s pictures of the plants at the accident site are inaccurate and that the shrubs have been in the ground since the late ’80s.
Orensten said that he plans to use the opposing testimony to discredit Simmonds and prove there was in fact construction at the accident sight.
Donohue said that in personal injury cases the plaintiff, Orensten, must prove there is negligence to collect any damages.
Orensten said his case is David vs. Goliath. Since no attorney would stick with the case, Orensten has taken over as his own counsel.
Sharon L. Van Dyck, of the Schwebel Goetz Sieben & Moskal law firm, took Orensten’s case when it originally went through appeals but would not take the actual case as it goes to trial.
“I didn’t think the chances of winning on the underlying liability were very good,” Van Dyck said.
“They have so much incredible power and an unlimited wallet,” Orensten said from his residence in a Monticello motel. He added that the money spent on the case doesn’t matter to the University because it comes out of taxpayer’s pockets.
Donohue said the case is of minimal cost to the University because it has insurance that covers slip-and-fall-type cases. The only thing it has to pay is the premium.
Both sides of this case contend it has been dragged out so long because of problems with the other party.
Originally, the case was heard by an arbitrator in January 1996, but was non-binding and not admissible in court. After the arbitrator found in the University’s favor, Orensten was supposed to file for an appeal.
Because of a mix-up at the courthouse and a legal technicality that stated an appeal must be filed within 20 days of the decision, he did not file in time. His case was thrown out.
But Van Dyck said she didn’t want the case to be decided on a technicality.
“It’s a common mistake even for lawyers,” she said. “It meant that he was going to lose on a technicality, not on merit.” Van Dyck helped reinstate Orensten’s case by taking the procedural rule up through appeals and to the state Supreme Court.
But Orensten said it wasn’t just he who slowed the case down. He said the University’s lawyer created several different delays and robbed him of his due process of law.
In a motion filed in Hennepin County District Court, Orensten accused Stephen Plunkett, the attorney representing the University, of delays, obstruction of justice, collusion, harassment and witness tampering.
In the motion, Orensten stated his pictures of the accident scene were illegally removed from the court file along with the negatives and pages from different letters submitted to the court.
“In 10 years of practice, Plunkett has never had any complaints,” Donohue said. “He is one of the best, highest-integrity lawyers I know.”
Hennepin County District Court Judge Delila F. Pierce would not comment on the pending sanctions against Plunkett.
But Orensten said he is angry at the delays and how much it has cost him.
“This is a slip-and-fall case that the University has turned into a holocaust,” he said.