City Dodges Suit Over Man’s Strange Drowning

OAKLAND, Calif. (CN) - The city of Alameda, Calif., is not liable for failing to save a man who waded into the bay and died of hypothermia two hours later, a judge ruled.

At around 11 a.m. on Memorial Day 2011, Raymond Zack, 52, allegedly waded into the water at Crown Memorial State Beach in Alameda, Calif., to kill himself while his family watched from the shore.

In a May 2012 complaint, Zack's siblings claiming that Alameda police officers and firefighters watched Zack for over an hour but never attempted to enter the water.

They said the Alameda County Regional Emergency Center contacted the U.S. Coast Guard at 11:30 a.m., but that the Coast Guard said its boat was 40 minutes away.

About an hour after Zack entered the water, "Raymond Zack's body became submerged in the water," the complaint stated. "Shortly thereafter, he was observed floating on the water. Still, no police officer or fire fighter entered the water. Raymond's body continued to float in the water and gradually drifted toward shore. At around 12:27 p.m., a civilian bystander decided to enter the water to retrieve Zack's body. Zack was brought back to the shore where efforts were made to revive him. He was subsequently pronounced dead at Alameda Hospital at 12:59 p.m."

The family attached an amended government claim, dated Dec. 7, 2011, to their complaint saying "Zack died as a result of hypothermia and/or drowning."

After the city of Alameda filed a demurrer with the Alameda County Superior Court, Judge George Hernandez Jr. sustained it and dismissed it from the action Monday.

"Liability may only be imposed on rescue personnel if 'an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so, or if an officer undertakes affirmative acts that increase the risk of harm to plaintiff,'" the six-page ruling states.

"Plaintiffs have not alleged any facts that show the officers responding to the 911 call at Crown Memorial State Beach on May 30, 2011 assumed any duty of care to Mr. Zack or undertook affirmative acts that increased risk of harm to him," Hernandez added.

The judge rejected claims alleged by Zack's family that the responding police officers and firefighters "significantly worsened Raymond Zack's situation" by clearing the beach.

"Although it may have been foreseeable that clearing the beach would prevent civilians from rescuing decedent, the casual connection between such actions and decedent's death is at best indirect and inferential," he wrote.

The city of Alameda must serve and file a proposed judgment of dismissal.

Hernandez's order dismissing the city does not address the status of claims against Alameda County, which is also a party to the lawsuit.

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