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Home > EMS News

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 EMS1 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.
Andrew Tucker Andrew Tucker Tuesday, February 12, 2013 11:53:37 AM Sounds like Zack's family would have liked to seen a hundred bodies and dead firemen floating out there.
John Muravez John Muravez Tuesday, February 12, 2013 12:17:24 PM This is why I let all of my cards go.... I got tired of HAVING too when it could hurt me....
Jason Bolton Jason Bolton Tuesday, February 12, 2013 12:27:28 PM Never send more victims to the scene.
Daniel Orr Daniel Orr Tuesday, February 12, 2013 1:15:25 PM I remember when this first happened. The news I read clearly stated the response crews were not trained for this, so it would be a bad decision to send people out there, and possibly cause more fatalities. I stand by the decision.
Bryan Higashida Bryan Higashida Tuesday, February 12, 2013 1:30:44 PM its a shitty circumstance, but legally, it was for the bystanders/government aids' own safety
Steve Jacobi Steve Jacobi Tuesday, February 12, 2013 9:47:29 PM So why were they still taking the money for being "trained" water rescue? If you don't want to do the job, don't take the bonus pay.
Dan White Dan White Tuesday, February 12, 2013 10:18:46 PM I have been in EMS 35 years, before that I was a Lifeguard. This would not happen on my watch, and anyone that thinks it is Ok on theirs should be ashamed or in another line of work. EVERYONE in Public Service, Police, Fire & EMS has a duty to respond. Anyone that says different is letting their community down. Even a simple WSI would have swam out, stayed their distance until situation was assessed, and then taken appropriate action. Even if it meant treading water 10 feet away until he passed out and became manageable.
Jason Bolton Jason Bolton Tuesday, February 12, 2013 10:21:51 PM then they would have needed two or more body bags.
Jason Bolton Jason Bolton Tuesday, February 12, 2013 11:10:22 PM You seem to think that his state of mind was the determinant factor here and while a suicidal patient can be dangerous, the freezing water was much more formidable. Would you run into a fully involved structure fire with no breathing apparatus and expect to effect a positive outcome? No, you would die of smoke inhalation within a few moments and at best you would get a heroes funeral. As such you would have also perished from hypothermia while you "swam out, stayed your distance until the situation was assessed and taken appropriate action."
Mark Buie Mark Buie Wednesday, February 13, 2013 4:35:26 AM I am a paramedic of 22 years and if I remember correctly the very FIRST night of EMT school was "don't become a victim", or scene safety, or if you want to call it "Don't be a dead hero". I am sorry for the family of the deceased but I agree with Jason Bolton on this one. There is NO reason to have two funerals instead of one.
Mark Baird Mark Baird Wednesday, February 13, 2013 8:45:52 AM What happened with the "duty to act"?
Phyllis Sideris Phyllis Sideris Wednesday, February 13, 2013 9:25:53 AM This is heartbreaking. Mental illness is not a choice and this poor man was apparently in a very bad place mentally. Its easy to analyze this from a distance but I can't imagine just watching someone drown and doing nothing to assist. I don't fault the EMS here; but just as a human being don't we have a moral responsibility to assist in some fashion? I agree that mentally ill are combative and extremely powerful when agitated, but someone could have been ready to grab him when he lost consciousness rather than just let him go down... Mental illness can be treated with diligent management and meds.. This is not empty talk... Those who really know me know that I have had to deal with severe mental health situations for over 40 years.
Dan White Dan White Wednesday, February 13, 2013 10:07:20 AM FYI, the water temperature was low 50's. Folks swim 26 miles across the English Channel at 60 degrees.
Katja Rawni Katja Rawni Wednesday, February 13, 2013 10:47:06 AM No duty to act when not trained in rescue you can agree scene was nit safe ie freezing water n violent suicidal person. Its tragic but not the responders fault
Dan White Dan White Wednesday, February 13, 2013 12:32:57 PM Carol Larsen Payne "Freezing" was in California context. I looked it up, water in low 50's. Nobody with even just a Red Cross Lifesaver card would have failed to act. Can't EMS at least meet the standards of a teenage beach lifeguard? A 13 yo Boy Scout with a water safety merit badge would have acted.
Steve Jacobi Steve Jacobi Wednesday, February 13, 2013 4:03:26 PM The state also found them at fault for many errors made during this. It does not take much training to ask if the man needed help. To stand around and do absolutely NOTHING is unspeakable which is what they did. The judge here is only ruling that the city can not be sued because of immunity protection by the state's laws. This means an EMS or FD associated with a government entity can mess up as bad as they want and not fear being sued. Could that be why standards are still so low? Also, it is incorrect about the training. Most of the FFs out there had gone through the training and were still being paid the additional salary for being trained. But, they failed to train within the past two years. You would think someone would have noticed they work on an island and that it is surrounded by water. This just demonstrates a total lack of caring and just wanting to do the minimum while earning well over $100k a year with only 12 calls for a total of 4 fire stations on that tiny island city.
Steve Jacobi Steve Jacobi Wednesday, February 13, 2013 4:04:49 PM Jason Bolton The water was waist deep. A woman (nurse) half the size of the FFs and Police at scene was able to get the guy's unconscious body to shore which was not even attempted by those in uniform. "Didn't want to get their feet wet".
Tom Robison Tom Robison Thursday, February 14, 2013 12:01:57 AM You folks here have really no idea of what you are talking about! Has a Captain / firefighrter and EMS. The officer in me would have done things just a bit different. First of all lets ge something strait! Firefighters policy is your life safety first, second your crews safety and thirdly comes the public. That's just the way it is, However I would have at least try to have a Zodiac get close enough to him to communicate and ask what are his intentions. Given the time during talking to him and could not see a weapon, then I would do 1 of 2 things, 1. grab him and pull him up to where he would land on his belly and cuffed him or 2 I would wait until hypothermia set in and he passes out and I could grab him before drowning. Oh did I also mention that I am a Swift Water (advanced) Technician.
Katja Rawni Katja Rawni Thursday, February 14, 2013 12:11:10 AM Absolutely not. I stand by words and agree with the courts. It's a shame that you weren't there to play God and Hero and berate fellow EMS/FF/LEO for "failing to act". He was determined to have died from hypothermia. Guess what without the proper gear to stand the cold waters, I wouldn't have gone in either. You can't save everyone. Rule #1 of LIFE and EMS
Ed Praetorian Ed Praetorian Thursday, February 14, 2013 2:50:14 AM good article
Steve Jacobi Steve Jacobi Friday, February 15, 2013 4:41:04 PM Good thing a little woman was around to do their job to at least wade out and bring the man's unconscious body in. It is a shame these firefighters work on an island but have no clue about the water surrounding them. With 5 marinas on that tiny island and all the personal boats at the fire stations you would think getting a boat would not be a problem. But, it would also help if they had some clue about how to ask for mutual aide properly from Oakland which is 5 minutes away. That was just embarrassing to listen to how the botched that.
Steve Jacobi Steve Jacobi Friday, February 15, 2013 4:44:16 PM The water was not Michigan freezing. The man lasted over an hour. Nobody in the water that long can struggle very much. Good thing there was a little woman around to bring the man's unconscious body to shore. I wonder how many bets were placed by the firefighters and Police officers on the shore as to how long it would take him to succumb to the cold (not freezing) water?
Steve Jacobi Steve Jacobi Friday, February 15, 2013 4:49:20 PM It would have been nice if they made an attempt to talk to him but they didn't. There was a wind surfing company by this along with 5 marinas on a tiny island. If they had bothered to talk to friends, neighbors and his mother on the shore they would have gotten a good profile of this man and would have understood his intent. He may have been easily coaxed back to shore given his overall state of mind. It is a real shame no one was allowed to talk to him. Kudos to the young woman who finally broke through the lines to get the unconscious man by wading out to him.
Steve Jacobi Steve Jacobi Friday, February 15, 2013 4:56:07 PM He became unconscious after being in the water for well an hour. A little woman was able to wade out and get him. It really is not going to "kill" a FF or LEO if they were to talk to the man and ask if he wanted help. Seriously? Why would you just stand around and do absolutely nothing? That is YOU playing God and hoping he will die in the water so it will be someone else's problem to recover if he drifts into the next city's area.
Matthew Ervin Matthew Ervin Saturday, February 16, 2013 1:59:22 AM Turn around, don't drown! Unless you're trained in water-to-land rescue which they weren't....Kudos to the responders that were smart enough to save their own lives by not going into frigid waters!
Sascha Opdenkelder Napier Sascha Opdenkelder Napier Thursday, June 19, 2014 5:38:02 PM And I'm pretty sure they didn't have their cold water gear handy either. If the FF went in the water, they could have been injured as well. You, Your crew, everybody else. They kept the scene safe.

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