|City Attempts to Have Zack Suit Thrown Out|
Published: Friday, 10 August 2012 02:07
Attorneys for the city of Alameda filed a 20-page demurrer document to have the lawsuit brought against the city and county of Alameda over the death of Raymond Zack thrown out.
Attorney Gregory Fox filed the demurrer on July 18. A demurrer is a written response to a complaint filed in a lawsuit, which pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.
In May of 2012, the Zack family filed a civil lawsuit against the city, but Fox counters the arguments made by the Zack family lawyers in the demurrer.
In the civil suit, the Zack family cites a "dangerous condition of public property," but the city's attorney states, "the plaintiff fails to identify any condition of public property that contributed to the descedant's death" and "their claims are based solely on the rescue personnel failing to prevent the descedant's suicide."
The defense also uses the state of California Judicial Code Section 831.7 argument that "public entities and employees are not liable to anyone who participates in hazardous recreational activity including water contact activities," as a reason for the suit to be dropped.
The city's attorney also states that the Zack family fails to use a claim of negligence correctly. The civil suit states that because the rescue personnel failed to enter the water, among other things, they should be liable for negligence. However, California judicial laws state that police officers "routinely respond to emergencies, but do not have a 'legal duty' to do so" and that "an officer's failure to respond will not result in tort liability."
The city cites several other claims for the lawsuit to be dropped in the demurrer.
Zack died after wading into the waters off Crown Beach on Memorial Day, May 30, 2011, in an apparent suicide attempt. When a witness notified the authorities, Coast Guard officials told Alameda firefighters they would not be able to tend to the matter, but when AFD and APD officials arrived they did not help Zack because they did not have sufficient training to make a water rescue. The next hearing is set for Sept. 27.
To read the demurrer document, visit http://apps.alameda.courts.ca.gov/domainweb/html/index.html, and type in the case number: RG12632015.