UPDATED: Judge to dismiss Crown Beach drowning case against city

UPDATED: Judge to dismiss Crown Beach drowning case against city

Michele Ellson

Updated at 5:42 p.m. Monday, February 11

An Alameda County Superior Court judge will dismiss a lawsuit claiming the city was responsible for the Memorial Day 2011 drowning death of Raymond Zack off the shore of Robert W. Crown State Beach.

Judge George C. Hernandez Jr. ruled Monday that the city didn’t have a legal duty to rescue Zack from San Francisco Bay or to purchase a rescue boat, train and certify firefighters for water rescue or call other agencies for help. He said the city had until February 19 to draft a dismissal order for the case.

“The court finds that under the circumstances presented, there was no moral blame attendant to the conduct of responding officers and firefighters,” Judge Hernandez wrote in his five-page ruling.

He said the law is weighted against imposing liability on communities in such situations in order to prevent police and firefighters from thinking twice before they respond.

“(T)he policy of preventing future harm, extent of burden to defendants, and consequences to the community of finding a duty weigh heavily in favor of not imposing additional tort liability that would deter police and firefighters from responding to emergencies and rendering assistance in the type of highly volatile and unpredictable situations faced by the officers and firefighters here,” Judge Hernandez wrote.

Gregory M. Fox, who represented the city, called Zack's death "tragic and unfortunate" but noted that the court ruled in the city's favor even with the plaintiff's best evidence in hand.

"Obviously these people become public safety officers because they want to help the public. It’s a very difficult job," Fox said. "The law is there to provide protection for officers when they act reasonably and in good faith."

In a press release issued a few hours after the ruling, City Attorney Janet Kern was quoted as saying that it was "unfortunate that Mr. Zack was so distraught that he took his own life."

"However, the ruling amounts to a finding that the responding police officers and firefighters acted reasonably and diligently in what was undeniably a very difficult situation," Kern said.

Rob Cartwright, who is representing Zack's siblings in the case, said he was disappointed with the court's ruling and that he will ask the judge to reconsider the ruling, which doesn't allow Zack's family to refile their case. Cartwright, who accused public safety officials of making things worse for Zack through their conduct - an argument the judge disagreed with - and said they failed to follow written policies and procedures, said he'd like to be able to gather testimony and other evidence in an effort to press his case.

"We respectfully disagree as to whether or not – whether they had undertaken a duty and whether they had a duty to Zack, and whether they violated the duty," Cartwright said of the police and firefighters who responded that day. "There’s a reason that the public was outraged at what happened there."

Attorneys for Zack’s brother and sister, Robert Zack and Bernice Jolliff, sued the city in May 2012, saying Alameda’s public safety officials had a duty to rescue him and that the city should have trained and certified its firefighters to pull him out of the San Francisco Bay. They are also suing Alameda County, claiming county dispatchers failed to call on other public safety departments that could have come out to rescue Zack; that case has not yet been resolved. The family members are seeking unspecified damages and medical expenses.

The city’s attorneys argued in court filings that local public safety had no legal obligation to rescue Zack and that he put himself in danger by wading into the Bay. They said local police and firefighters’ obligation on the day of the incident was to protect themselves and the public.

Zack died on May 30, 2011 after wading into the water off the shore of Crown Beach in an apparent suicide attempt, as more than a dozen police and firefighters and onlookers watched. A kite surfer spoke with Zack during his final moments, and an off-duty psychiatric nurse pulled his body out of the water, against the advice of police.

The case prompted an international outcry and a scathing operational review from a former state fire marshal who criticized the departments' disjointed response, though the department's top brass said a year later that they had rectified the issues outlined in the review.

Related: Siblings of Memorial Day drowning victim to file suit

City’s attorneys ask judge to toss Zack case


Submitted by knealy on Mon, Feb 11, 2013

It may well be that they had no legal duty to rescue him. But moral....? Come on. The world-wide opprobrium that followed this tragedy clearly attests to the moral failure.

Jon Spangler's picture
Submitted by Jon Spangler on Mon, Feb 11, 2013

KNealy--And I would suggest that the City of Alameda has moved with all possible speed to respond appropriately to the moral imperatives of that situation so no one else needs to die the way Raymond Zack did.

His death was a sad occasion for all of us, including the Alameda Police and Fire Departments. And both of our public safety departments are far better prepared, properly funded, and trained to respond today than they were May 30, 2011. Those changes help ease the pain of that tragedy.

Submitted by Steve Gerstle on Mon, Feb 11, 2013

No winners here. A short term victory for City Hall, but at what long term cost for the community? How does one account for the loss of moral legitimacy? I don’t know how this is going to play out in the long run, but it isn’t going to be good. The judge's ruling does not make me feel any safer.

Submitted by piedpiper2002 on Sun, Feb 17, 2013

This is distressing and disturbing. I can understand why bystanders would think that maybe the guy was just going in for a swim, but when hypothermia occurred, and no one helped him, that's atrocious. I can respect at least a nurse swam in to help him, and the police and firefighters were there., and maybe the surfboarder was trying to console him from committing suicide. It could be possible the people were waiting for someone trained to rescue him, maybe they were hoping that would happen, or maybe they were so awestruck they did not know how to react, but to all of you who witnessed it, and you had no sense of compassion in your body, you should all feel ashamed. If someone you knew or cared about did this, would you not try to assist them? Maybe you were confused on what was happening, but if you knew it was going to turn out unfortunate, you should have acted, but you would probably not want to wet yourselves. Hope this comes back to haunt you, and turn the tables on you. R.i.p. Raymond, hopefully you are at peace.

Submitted by piedpiper2002 on Mon, Feb 18, 2013

Jon Spangler, I agree, it is quite sad it ended up the way it did, and no one needs to die like how he did at all, and he did not deserve to die like that at all. I can understand that the bystanders would be shocked to see what was happening, but considering this was a suicidal person, they should have been much more compassionate. I am sure at least some cared, I hope so at least, since there were seventy five witnesses (as well as the police officers and firefighters), and I heard some tried to do something about it, but I think they just called nothing else. I do not know the entire story, maybe it is true, they actually did hope professional help would come, but if they actually did not care that he killed himself, that is not right. I read in an article that only thirty came to his funeral, man. I hope his family wins this lawsuit and give the police officers, firefighters, and bystanders a what for. When I read this yesterday, I was so sick to my stomach, how could people be this cruel. I hope all the bystanders are reading these comments and feel ashamed of their selves, if they are, then know these people, you had no idea what you did, not only did you not assist a person who needed help, but you did not assist a suicidal person. You gave him even more reason to end his life, but understand this, and understand this well, someday you will be on the other side of the table and you will see how it feels. I wish I knew all of you, so I could give you a great slap in the face. You all deserve it.