Last week, attorneys for the City of Alameda file a 20-page demurrer in an attempt to throw out of court a lawsuit brought against the City and County of Alameda over the death of Raymond Zack on Memorial Day, 2011.
Raymond Zack died after standing in the water about 150 yards offshore for over an hour. The incident rose to national attention because, although Alameda public safety officials called the Coast Guard for a boat to use to approach Mr. Zack, police officers and firefighters stood on the beach and never entered the water to approach him. Eventually, he collapsed, and a good samaritan pulled his body to shore. Alameda firefighters said they did not have land-based water rescue certification to permit them to enter the water.
Key to the City’s defense is the argument that the City of Alameda, its firefighters, police officers and employees had no “duty of care” to prevent Mr. Zack from collapsing and dying.
Citing Camp v. State (2010) 184 Cal.App.4th 967,970., the City argues that “Police routinely respond to emergencies, but they do not have a ‘legal duty’ to do so.”
It’s only in the case that a police officer provides a promise of protection that they create a special relationship with the individual, when then creates a legal liability, the City argues.
City of Alameda personnel, the demurrer states, “had no duty to come to [Zack's] aid, or any duty to take affirmative action to assist or protect him. The peril to him was created by his own conduct in wading out into the water, standing there and refusing to return; [City of Alameda] personnel did nothing to create the peril.”
The City’s pleading also argues that public safety officials, by clearing the beach of civilians, created no special relationship with Mr. Zack that might create duty of care, and did not increase or change the risk to Mr. Zack. “Police and firefighters had no duty to permit civilians to remain in the area or enter the water where they also could be exposed to injury and require rescue themselves,” the pleading reads.
The demurrer is currently set to be argued before Judge George C. Hernandez Jr. on September 27, 2012.
The law firm of Bertrand, Fox & Elliot of San Francisco is representing the City of Alameda. The case is RG12632015 in Alameda County Superior Court.