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Judge: Responders had no legal duty to help drowning man

The judge found the officers and firefighters acted justly when they stood onshore as a suicidal man succumbed to hypothermia in the San Francisco Bay

By FireRescue1 Staff

ALAMEDA, Calif. — A judge ruled Monday that the responders who stood on shore as a man walked into the San Francisco Bay and died from hypothermia had no legal duty to help him.

The judge also found that by removing people from the beach or preventing people from aiding 52-year-old Raymond Zack did not "worsen" his case, according to the San Jose Mercury.

With his ruling, Judge George Hernandez effectively ended a lawsuit filed by Zack's family against the city of Alameda.

Responders and dozens of onlookers were reportedly at least 100 yards away from shore as Zack walked fully-clothed into the frigid waters.

Police said they did not go after Zack because he was possibly suicidal and violent and firefighters remained on shore because they were not certified in land-water rescue and had no boat that could be used in the shallow water.

The family argues, however, that the responders did not try to get a boat from the U.S. Coast Guard and believe that bystanders should have been able to help if they wanted.

"It was a very tragic situation," Gregory Fox, the city's attorney, told the Mercury. "But the court found that the officers acted reasonably and within the law."

The paper reports that responders were dispatched after Dolores Berry, who says she is Zack's foster mother, asked an onlooker to call 911, explaining Zack did not know how to swim and could be suicidal and may have suffered from mental illness.

An onlooker pulled Zack to shore later after he started floating facedown, but he was pronounced dead a short time after in the hospital.

"The court finds that under the circumstances presented, there was no moral blame attendant to the conduct of the responding officers and firefighters," Hernandez said in his ruling at the Hayward Hall of Justice.

Hernandez also added that firefighters and officers were right in not allowing people to enter the water, as they could have been harmed and injured as well.

Zack's family's attorney says he will ask Hernandez to reconsider the case and if he refuses, will appeal the decision.

The comments below are member-generated and do not necessarily reflect the opinions of or its staff. If you cannot see comments, try disabling privacy and ad blocking plugins in your browser. All comments must comply with our Member Commenting Policy.
Chris Wagner Chris Wagner Tuesday, February 12, 2013 11:58:18 AM This is bull. I interned at Alameda Fire. There's a Zodiac, gassed up and ready to go at Station 1, which is about 1 mile from the scene. I don't know if they have a crew trained for that, and shame on them if they don't. Alameda's an island for crying out loud. Why aren't they trained in aquatic rescue, being surrounded by water... Another win for stupidity.
Yolonda M. Greenwell-Reese Yolonda M. Greenwell-Reese Tuesday, February 12, 2013 12:04:17 PM AMEN! This is such an unjust situation.
David Sheets David Sheets Tuesday, February 12, 2013 12:05:11 PM process triumphs over duty and common sense.
Do Koolmac D Care Do Koolmac D Care Tuesday, February 12, 2013 12:09:46 PM WTF? Are we so morally depraved in this country that we accept such a BS judicial ruling? Is the community of those diverse personnel who "serve the public good" (whether paid, volunteer, sworn or not), morphing into a group of milquetoast self-servers who don't want to do the labor involved in getting the job done? Are we going to judge the actions of those we serve to protect without knowing all the facts? Are we now just going to turn our backs because someone who may have reached the end of their rope makes a move toward ending their life? Are we dehumanizing those with mental illness, and choosing to ignore them? Are we really becoming jack-booted minions who'll prevent others from doing what we should be doing to "save face"? If it was simply a lack of training and proper equipment, I could concede it was a tough choice. But there are too many other variables involved. We are becoming, if not have become, our own worst enemy. Once we lose credibility with our own communities then it is over. I Thank G*d for having been a Marine, for Marines never accept defeat - They improvise, overcome and adapt, they live life demonstrating a "can do" attitude; and in situations far more dangerous and assuredly deadlier than that of trying to save a man who cried out for help. A person who truly wants to kill his/her self does it decidedly and swiftly, not this way. Where do we draw the line. Shall we not intervene in drug overdoses? What about those situations we as the "all hazard" agency face for the first time and never prepared for; shall we refuse to act because it is dangerous? All those responders AND the court have let the public down!!! I feel ashamed to be associated...
Greg Oliver Greg Oliver Tuesday, February 12, 2013 12:14:37 PM It isn't bull. Here is the deal, if the firefighters had tried to rescue the man and failed, they would have been sued for neglagence because they were not trained or had the certification to perform such a rescue and had no purpose for being there. It's no different than when I as a volunteer get scolded by a citizen because I didn't get to the scene quick enough, yet it is the same citizen that scolds me for driving to quickly when I am responding to the station. I didn't catch it in the article, were the firefighters on duty or off duty? If they were off duty, they have NO obligation to help. Would be the same as your employer saying "come in to work today on your day off, yet you are going to do it for free."
Cj Brim Cj Brim Tuesday, February 12, 2013 12:15:23 PM the judge made the right call in this case the responders did the right thing.
Greg Oliver Greg Oliver Tuesday, February 12, 2013 12:18:42 PM So Dougie, you are stating that if you have no professional training you would be willing to risk a suicidal man down from a 20 story building, risking your own life, possibly losing it? That fact that the man was mentally ill has nothing to do with it.
Michael Tremblay Michael Tremblay Tuesday, February 12, 2013 12:20:55 PM In 2006 and 2011, our area was overwhelmed by historic flooding. My department was on duty for three days straight performing rescue and evacuation operations. Guess how many of us are water rescue certified? NONE. We did the job that was needed, and none of the people we helped were upset that we didn't have the paper to say we could do the job. Were we legally in the right - probably not. Morally, I had no problem with what we did, and we did the work that was needed as safely as we could manage.
Do Koolmac D Care Do Koolmac D Care Tuesday, February 12, 2013 12:25:03 PM Read my post again, then ask your inane questions. And yes, I have and will continue to do things I've not had "proper" training in, because all my risks are calculated, and I will do that which I am confident of performing!
Greg Oliver Greg Oliver Tuesday, February 12, 2013 12:28:17 PM I don't disagree with the morality issue Michael. However, from a legal stand point it stands correct. LEGALLY, they had no obligation. And that is what the ruling was about. I was involved in a swift water rescue once and wasn't certified either, nearly cost me my life. You have to take all things into consideration. Do you go into a structure that you can't save when no life is to be gained at the risk of your own? Of course not, how do we know the suicidal man wasn't weilding a knife or firearm? Weigh the risks.
Scott Spradley Scott Spradley Tuesday, February 12, 2013 12:47:17 PM What horseshit! They had a duty to act. Ask any firefighter anywhere else in America, except California. That judge obviously doesn't know his ass from a hole in the ground. That's why California has to advertise and beg for people to come to their state! Just remember if you go, if you get into an emergency you may not get help...
Wes Wallace Wes Wallace Tuesday, February 12, 2013 12:50:39 PM The point it seems most are missing here is the man, whether sick, mentally ill or whatever purposely put himself in danger. There was no one there trained to safely rescue him. Its easy for some of you here to say all that you'd do if you were there. However NONE of you were there! I risk my life each day I work...but doing things that I am qualified and trained to do. Water rescue is especially dangerous..period! It is even more dangerous with a suicidal person or mentally ill person. Had someone tried to rescue him that was untrained and drowned doing so everyone here would be saying how that untrained person shouldn't have tried. How many here who are actually firefighters or in EMS go on scene to a shooting without police clearing the scene? Why not then? You don't go first because it isn't safe! The fact is the persons intentions were unknown. Could he have been armed? Was he big enough to drown a rescuer? Questions you have to consider and think about. I've personally seen suicidal people turn a gun on rescuers. So don't condemn this fire dept or people on the scene unless you were personally there! All of us who do this for a living or volunteer KNOW that all the facts to a story are never fully published. The main and important thing to this is the responders went home to their families. Doing what your not trained or certified to do most of us know can get you hurt or killed and it puts other peoples lives in danger. Last thing I'll say is this, if they did have a boat as one poster said. Do you know for fact that it is working? If it is, then the dept does need to be questioned as to why they don't have anyone trained for a water type rescue. But don't judge unless you personally were there.
Vern Williams Vern Williams Tuesday, February 12, 2013 12:51:48 PM I agree Wes Wallace
Steve Enigson Steve Enigson Tuesday, February 12, 2013 1:02:37 PM No wonder why firemen get hurt and killed performing duties they are not trained to do. If you do have the training don't try and be superman and do it because you think you guys can do..
David Leandro David Leandro Tuesday, February 12, 2013 1:15:09 PM Scene safe? Suicidal people can and will hurt you. To all the haters, live the job or keep your unknowing opinions to yourself.
Steve Weber Steve Weber Tuesday, February 12, 2013 1:23:19 PM I have done this job for 23 years and I can't understand how anybody could just watch someone die in front of their eyes. Come on people, do your jobs and protect human life.
Andrew Chase Andrew Chase Tuesday, February 12, 2013 1:29:14 PM I read the article and the comments following it -- some of the people that commented are irreparably stupid ... haters want to hate (and complain, and be ignorant) because it is all they are good at ... I agree with you, Greg. I think that your arguments and responses were sound!
James Gonzalez James Gonzalez Tuesday, February 12, 2013 1:36:29 PM Well said!
Bill Waugaman Bill Waugaman Tuesday, February 12, 2013 1:37:01 PM Greg Oliver This guy is the one we all get new SOP's written about. Yahoo "A" does something he is not supposed to do and firefighter "B" injured, and so the circle of incompetence continues.
Greg Oliver Greg Oliver Tuesday, February 12, 2013 1:39:55 PM Was no insane question was asked. I simply gave you a different scenario and wondered if you would react the same. You stated that you would willingly perform duties that you are not trained for. Yes, you may calculate and do all that you deem safe to do so. That's wonderful. However, maybe the men and woman at the scene that day don't share your enthusiasm. I'm not saying those events weren't tragic or even unaviodable for that matter. The crux of the ruling is they DID NOT and WERE NOT obligated to do anything. Therefore, they couldn't be sued. The other issues surrounding this are another matter entirely.
Richard Koleber Richard Koleber Tuesday, February 12, 2013 1:48:35 PM As much as I respect marines and armed forces, Dougie, you would not be on a fire department long. Legal questions and lawyers unfortunately decide what you can do. This situation is a damned if you do, and damned if you don't. The man possibly could have been rescued, but at what cost. He was a danger to himself and others. Bottom line. "Most" Fire Departments have rules and regulations that they must adhere to. Break them and you are gone. And read the papers Dougie. Everyday you read about survivors suing fire departments for rescues for fires gone wrong. You are one mistake away from doing something wrong and getting sued for everything you have. Good luck with that
Richard Koleber Richard Koleber Tuesday, February 12, 2013 1:52:22 PM Read the article Steve. They were not trained in water rescue. Don't know your department regulations, but generally if you are not trained to perform a task, you do not do it, no matter what the situation. Sometimes the wrong thing to do is the right thing.
Greg Oliver Greg Oliver Tuesday, February 12, 2013 1:52:52 PM Thank you sir.
Do Koolmac D Care Do Koolmac D Care Tuesday, February 12, 2013 1:55:29 PM hahaha Spoken like a true poser. What I wouldn't give to see you prance around in turnouts so all the girlies see your faux machismo! This is OUR job - All hazards. There will always come a time when you face a new situation and have to learn on the fly. This incident was not that time. I lived in SoCal for nine years and all beach communities are trained for water rescues. But I'll reiterate - IF it was simply a matter of lack of training or equipment I concede the hard decision made. But it's not. That area is well populated by USCG and USN. A duty to act doesn't necessarily mean you perform the act, just mobilize the necessary resources, which it seems they did not. If they weren't trained then they never should have responded. By doing so they placed themselves in the public eye for public criticism. They had a duty to do something, and that is where the judge got lost in his ruling! As for all you whiners about getting sued - Get out of the business, paid or vollie, there is always that possibility. If you can't deal with the pressure, if you're lacking confidence in your job performance then you are fettered by an albatross! And you might as well get out of the country, because that is what this country is - Litigious oriented! No more neighbor helping neighbor for the sake of being thy "brother's keeper". And I won't get into the Good Sam law which would have protected those responders or any bystander who tried to help. But I'm sure someone will challenge that assertion, someone with no experience (legal or otherwise), and I'm ready and oh so am prepared.
Andrew Arceneaux Andrew Arceneaux Tuesday, February 12, 2013 2:03:09 PM I risk my life everyday in Iraq and Afghanistan without question, everyday is unknown to us, but I would still risk my life to save his even if he wanted to die, so please do my soldiers and I a favor and shut your mouth
Michael Tremblay Michael Tremblay Tuesday, February 12, 2013 2:17:52 PM You guys are absolutely right - it was an absolutely overwhelming situation county wide where, if we did not act people would be hurt or worse. We called in proper assets when we could, and then used our best judgement and skills to deal with the other situations. If it looked to dangerous to go in with a life jacket and safety rope, we didn't. We did the best we could, safely, to deal with the situations at hand. Since 2011, we are planning training with a swift water team. We will never be a fully equipped and trained team, but the next time it happens we will be better prepared than before.
Michael Tremblay Michael Tremblay Tuesday, February 12, 2013 2:19:39 PM Wes, you are right. I spouted off before I thought about it for a bit. No more Monday morning quarterbacking on my part.
Mike Dunn Mike Dunn Tuesday, February 12, 2013 2:29:57 PM In short, you have a grown man in freezing waters who is suicidal 100m away from the shore and is dealing with suicidal and mental issues (according to the on site report of his foster mother). That takes a very physically fit and sound individual with excelled training. They eventually got him to shore but he died from hypothermia not drowning. It's terrible to think about, but you have little idea how this man would respond if you did try and help him under the conditions his foster mother had described to the rescue team. With that you would need at least one other individual with the same excelled training to assist you in case he attacked or became aggressive. I see this as being the critical thinking of the on lookers. You must realize as well I am not a firefighter but I know w/o a doubt that all firefighters around the world do not want to see human beings die.Your anger or ill content must be focused on the negligence of the proper preparations for such an event and not the idea that these responders allowed this man to die.
Andrew Chase Andrew Chase Tuesday, February 12, 2013 2:31:21 PM Meh. It seems your vocabulary exceeds your intellect.
Michael Chaney Michael Chaney Tuesday, February 12, 2013 2:37:49 PM if you really want to see what it might be like to do a water rescue try to put a cat in a toilet
Jeffrey Bonkoski Jeffrey Bonkoski Tuesday, February 12, 2013 2:48:46 PM Being trained to rescue someone that wants to be rescued is one thing. But here is a case where someone is willing to die and is possibly ready to take others with him if they attempt to interfere. I agreed with the actions taken. On scene commands first priority is the safety of the responders.
Jay Angela Lewandowski Jay Angela Lewandowski Tuesday, February 12, 2013 5:28:20 PM I agree with the judge. It's terrible, but don gloves, assess scene. It wasn't safe, Spradley.
Sandra House Sandra House Tuesday, February 12, 2013 7:02:29 PM Ask my granddaughter, a certifed lifeguard at the Y, just how hard it is to rescue even a small child who is frightened and fighting.
Do Koolmac D Care Do Koolmac D Care Tuesday, February 12, 2013 7:14:24 PM Oliver - the word I used was inane. Bone up on your literacy, and read before you speak. As for SOPs - It was incumbent upon this department to have SOPs for water-based incidents. Richard - NFPA dictates what is reasonable and safe in our line of work. But again I point out that in my initial post I wrote quite clearly: " If it was simply a lack of training and proper equipment, I could concede it was a tough choice." There comes a time that everyone, every department, faces a first, and must improvise. Hopefully that improvisation is done based upon knowledge, experience and rationality, even if it means taking no direct action. As to Oliver's equating rescuing a suicidal man from a 20-storey building vs rescuing a man you watch (with LEOs on hand, according to the article), "walk" into the water is just an attempt to divert rational thought. Safety is, and always will be my priority. Knowing CA departments in that area I still claim it's BS what occurred and the attitude that we can respond and then stand around like dullards. You're supposed to know your area of response, its hazards and the requisite pre-plans. This was not a new department, or a group of "boot" fire fighters. As for calculated risks - We take them every day. The difference is those who take them based upon experience and a well thought out plan, and those who just react without a common frame of reference. Again - All I hear are the whiners who decry liability (and most have never been a party in a lawsuit), but no one who has actually done their homework and has filtered out both the mis- and the disinformation. We're inculcating a cadre of worryworts who see the bogeyman at every turn!
Kristen Kealapono Kristen Kealapono Tuesday, February 12, 2013 7:31:07 PM Andrew Arceneaux , with all due respect (and gratitude for your service) the situations are not comparable.
Jay Hill Jay Hill Tuesday, February 12, 2013 8:38:57 PM Good call by the judge and anyone saying that they would go in after him would be the next one on the coroners table period.
David Leandro David Leandro Tuesday, February 12, 2013 11:10:58 PM Make no mistake andrew arceneaux, I would risk my ass for my brother firefighters. I have dealt with suicidal people that have tried to take others with them. I witnessed a man try to kill his children as well as responders. God willing he did not succeed. I was sent in to try to save him in his burning home. (he didn't make it). I did not feel bad that I could not help this individual, believe me, he didn't want anyones help. We deal with suicidal people too often. We know what they are capable of. Our job is to protect lives starting with our own and our crews. You and your fellow soldiers (including dear family and friends) are in my thoughts and prayers as you do the good work overseas.Be safe.
Lynda Giusti-Parra Lynda Giusti-Parra Wednesday, February 13, 2013 9:32:28 AM An onlooker pulled Zack to shore after he started floating face down? Folks watched him walk into the water guess: he didn't walk on it? The sad commentary is THAT SOMEONE protected the people who were standing safely ON SHORE, probably all in a dither, as if they were in danger of...rescuing this kid. I bet none of the onlookers / POTENTIAL RESCUERS could either swim (with a simple life vest); didn't want to get their feet wet; didn't feel CONFIDENT enough with their BASIC skill and TEAM effort -- cuz this doesn't sound like hydraulic science to me. As for the courts ruling, well, I suppose we must all abide in knowing we're on our own, in the water, in Alameda.
Sean Burden Sean Burden Wednesday, February 13, 2013 6:38:11 PM Well said David.
Ryan MacLean Ryan MacLean Thursday, February 14, 2013 5:17:03 AM Andrew - in my 4 years in the USMC, as a firefighter, I achieved the highest level of swim qualification, WS-Q. I was also certified in Coastal Water Rescue and Cold Water Rescue. I deployed to Kuwait and Iraq before I left the Marines and became a contractor, working 5 years in Afghanistan and 2 years in Iraq (from where I am typing this). First off, thank you for your service. Rescuing a victim in an IDLH environment is not the same as jumping on a grenade to save your buddies. When you are the professional rescuer on a scene, ignorance is not heroic, it is dangerous. If you jumped in that water to save that drowning man, there is a very high likelihood there would then be two victims to rescue, still with no trained personnel or proper equipment on scene. Then, not only would the Incident Commander be blamed publicly by uneducated people like yourself, but also legally for not securing the scene. If you are a soldier who is risking his life every day in Iraq and Afghanistan (hell of a commute there) do yourself and your soldiers a favor and show some military bearing by not telling other people to shut their mouth. Maybe if you take in a bit of what other people are saying you can learn something, and actually help your soldiers some day instead of thinking like a lemming and creating even more casualties.
Larry Perry Larry Perry Thursday, February 14, 2013 6:27:47 AM The protecton of life and propertty. Not just the protections of healthy life and high value property. That said, a suicidal or metally ill person can be very difficult and very dangerous to rescue. I have yet to find a fire service that is fully traind on every specialized rescue training that they may come across. In my view you go as far as possible to do the rescue. Yes you are taking a big risk, especially at the level of being held leagally responsible if somthing goes south. Our society will turn on you in a heart beat if some one can make a big pay day out of a targidy. You do your best so that you can be proud of your vocation, and your service. If the guy won't take the rope you through, then there isn't much you can do for him. Do your best but be safe and live to rescue the next person who is saveable. Hang in there!
Alexander Croci Alexander Croci Thursday, February 14, 2013 11:35:38 AM The judge is obviously an ASSHOLE! By the way, so are the MORONS who just stood by and not rendered assistance. They are an embarrassment to public service and need to be removed from this line of work! A public safety agency located by a body of water and no one is trained for water rescue, sounds like the involved department is unfit to do public safety work. If they are afraid to take risks then get out of public safety work! Ridiculous!
Alexander Croci Alexander Croci Thursday, February 14, 2013 11:40:40 AM Chris, you are right on point! A fire department's jurisdiction surrounded by water and no one on scene is trained for water rescue, fire department management needs to consider another line of work!
Frank Staples Frank Staples Saturday, February 16, 2013 12:53:59 PM If you can't do the job, find another line of work. What bullhockey about scene safety from a group of physically fit, strong but stupid men who looked on while a man died. Can't believe that would happen anywhere but California. What a crock. And you guys still call yourselves firemen. Risk a lot to save a lot...but what risk was there to several strong men pulling one man from the water?
Shirley Solomon Favela Shirley Solomon Favela Saturday, February 16, 2013 12:55:56 PM I think there's something in the California air that makes them "special" (I don't mean that in a good way either).
Mike Ryan Mike Ryan Monday, February 18, 2013 1:45:31 PM Greg, you are right, we are in a no win situation here. All the armchair quarterbacks who have no idea the training involved and the liability issues here and who I am guessing are the bravest that ever sat in front of their computer screen until it's actually time to stop the mugger, help the innocents, patrol their neighborhoods, see the death, be covered in someone elses AIDs infected blood, anything of self sacrifice, etc... If this article read that the fireman died while trying to rescue the man or let bystanders die while trying to rescue them, then the exact same people preaching on here would be tossing more blame than you can count. I've been a career firefighter for 20 years now, am Captain of my crew that in no way, trained or not trained would I have let go into the water after a suicidal drowning victim, no more than I would expect them to disarm an armed suicidal victim. Obviously they have no idea the dangers of trying to rescue a drowning victim that wants to be saved much less one that doesn't want to be saved!! The so called military man (that I am guessing is a poser) and the other so called firefighters posting on here either lack the training or brain cells to call themselves members of a real fire department. I apologize for the rant but I am fed up with all the hate and posers posting on here like they know what they are talking about when in reality they don't have a clue.I do find it funny that most of the ones talking crap don't have anything behind their name that is realated to firefighting, EMS, police, or public service of any kind, most seem to have some type of office job!!
Do Koolmac D Care Do Koolmac D Care Wednesday, March 20, 2013 8:39:22 AM Go shoot yourself in the foot Willson (I guess 1 L wasn't enough for your last name).

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