City's attorneys ask judge to toss Zack case

City's attorneys ask judge to toss Zack case

Michele Ellson

Attorneys representing the city are asking an Alameda County judge to throw out a wrongful death suit filed by the siblings of Raymond Zack, who drowned in San Francisco Bay on May 30, 2011 as Alameda police and firefighters and dozens of beachgoers watched.

In a July 18 court filing, the city’s attorneys say local police and firefighters didn’t have a legal responsibility to prevent Zack’s apparent suicide attempt and that their primary responsibility that day was to protect themselves and the public. And they’re saying Zack’s attorneys have failed to make an actionable case.

“The peril to (Zack) was created by his own conduct in wading out into the water, standing there and refusing to return; CITY personnel did nothing to create the peril,” attorneys Gregory M. Fox and Meaghan A. Snyder wrote.

A hearing on the request is set for September 27.

Attorneys for Zack’s brother and sister, Robert Zack and Bernice Jolliff, have accused public safety officials of bungling efforts to rescue him, saying they improperly handled 911 calls seeking help for Zack, failed to call in the resources needed to rescue him and actively discouraged bystanders from attempting to rescue Zack. They are seeking unspecified damages along with medical and funeral expenses and legal costs in their negligence and wrongful death claim.

But the city’s attorneys said attorneys representing Zack’s siblings and estate failed to show police and firefighters were negligent, and that the city is legally immune from liability for their actions, even if they made poor choices while attempting to aid Zack.

Fox and Snyder said police and firefighters had no legal duty to assist Zack and that their decision to respond to 911 calls seeking assistance for him did not impose one. They said the city would only be liable if police and firefighters actively contributed to his demise by offering to rescue him or other specific assistance and then not providing it.

The city’s attorneys also said judges have been reluctant to dictate public safety response levels from the bench. The attorneys, who called suicide attempts “inherently unpredictable situations” that even trained mental health professionals struggle to manage, said courts have decided that to do so would be placing the welfare of a suicidal person above that of responding police and firefighters and the public at large.

“(L)aw enforcement professionals are not ‘professional Good Samaritans’ subject to a malpractice claim ‘whenever their response falls short of ‘what reasonably prudent police employees would have done in similar circumstances,’” they wrote.

Zack died after wading into San Francisco Bay on May 30, 2011 in an apparent suicide attempt while police, firefighters and bystanders watched from the shore of Robert W. Crown State Beach. Police said they weren’t properly trained to enter the water and firefighters, who said been directed to stay out of the water because the department’s water rescue program had been cut, triangulated Zack’s position from shore in anticipation of a Coast Guard rescue.

The Coast Guard vessel that arrived to assist Zack was too big to navigate the shallow water he was standing in; other agencies, including the Oakland Police Department and police who patrol the East Bay Regional Park Department – which has jurisdiction over the beach – weren’t called.

A kite surfer spoke with Zack as he stood in the water and, after he lost consciousness, a psychiatric nurse swam out to him and brought him back to shore, despite police officers’ insistence that she remain on the beach, police reports detailing the incident show.

Case information is available at http://apps.alameda.courts.ca.gov/domainweb/html/index.html, and the case number is RG12632015.

Related: Siblings of Memorial Day drowning victim to file suit

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