Blogging Bayport Alameda

February 13, 2013

In Decision

Filed under: Alameda, City Council — Tags: , — Lauren Do @ 6:03 am

On Monday afternoon you might have heard a great popping sound, that was the sound of a number of heads around Alameda exploding once the ruling in the Raymond Zack case came through.   While those that wanted to see Alameda’s public safety units and, I supposed, the City of Alameda by extension pay for the events on that Memorial Day are now decrying the “activist judge” in the case or musing on moral duty or suggesting that some new precedence was created on Monday, honestly there should have been nothing truly shocking about the decision made on Monday.

First, the courts really aren’t in the business of making ruling based on “morality” since it’s a pretty vague philosophy that I would image differs from person to person and culturally as well.   To make the assumption that courts should follow one arbitrary set of “moral” values sort of flies in the face of what the judicial system is supposed to be about.   But that’s a different topic for a different day.

Also, given that the judge in the Zack case simply applied the existing precedence set by an existing decision, it’s a bit of a stretch to call him an “activist” as though he crafted new law.  I wrote about one of the existing decisions here.

Here’s the really relevant part of the decision:

Furthermore the policy of preventing future harm, extent of burden to defendants, and consequences to the community of finding a duty weigh heavily in favor of not imposing additional tort liability that would deter police and firefighters from responding to emergencies and rendering assistance in the type of highly volatile and unpredictable situations faced by the officers and firefighters here.

While the ” policy of preventing future harm, extent of burden to defendants, and consequences to the community of finding a duty” may sound like a whole lot of mumbo jumbo on the part of the judge, it is — in fact — part of a seven prong balancing test set forth in a 1968 decision to determine whether a “duty of care” is owed to a specific plaintiff, in this case, Raymond Zack.   The judge in this case felt as though these factors were not met.

The interesting thing about this case and defense was even though the County of Alameda was also party to the lawsuit, at no point did the County take part in the legal back and forth.   The ruling actually only dismisses the City of Alameda, but since all the causes of action are the same for all parties, it looks like the County of Alameda benefited from the City of Alameda vigorously defending itself.   The City of Alameda has until February 19 to serve and file a proposed judgment of dismissal.  I’m assuming it won’t take even that long to get that filed.


  1. Yes court do not have to enter judgement based on morality or do they? what are the basis and purpose of laws ?
    If so then it should be legal to do perpretate any immoral act any times one please.

    This is not about morality it is about Money !
    this bring an interesting point , how about the millions of dollars the Golden Gate bridge is spending to prevent suicide How about Dr Kardashian assisted suicide .
    How about all the medication against depression , about all the Hospital care for these peoples , we should not have to pay for them either
    Nothing is different here , The fire Dept is here to save lives and showed us who they really are, a bunch of overpaid self serving polititians , which went in their file cabinets before attempting a rescue .hey are we paid for this or is it in our jobs description ?
    let see how could we squeeze a bit more out of the City ,our Friends at City Hall have the legal know how

    Short of going around during election time and remove signs against proposition favoring them , parading around town in shinny red truck flying the American Flag in truck they are callin aparatus , giving themseves Captains ranking when they actually run away it is a fact , they cannot fight a single fire without the assistance of Oakland all the way down to Fremont Fire Dept , resulting in loss of lives and properties , Raymond Zach is very far from being the first one ,
    From all the statements made by Mr Doug de Haan none is more accurate.
    The Alameda Fire dept is as usefull as a red brick , regardless which public relation firm they hire to polish their well earned corroded reputation .
    In most civilize Country there are penalty for not assisting someone in danger , Here we gave them a raise ???

    Comment by mijoka — February 13, 2013 @ 7:56 am

  2. It wasn’t a “vigorous defense”, so much as an anemic prosecution. I think I was the only Alamedan there in the gallery. The case wasn’t going to try itself. Zack’s lawyer’s were pathetic. They didn’t even raise the issue of what duty a Calif W&I Code 5150 creates. An issue not raised is an issue not debated.

    So, in the interest of efficient use of resources & taxpayer money, I suggest the APD cease enforcing California Welfare & Institutions Code 5150 altogether. They’re not going to save you from yourself and they should no longer get paid just to stand around & watch.

    Comment by vigi — February 13, 2013 @ 10:15 am

  3. In a way, I’m glad. Mr. Zack’s family apparently took no responsibility for him during his life. The person who cared most about him, the lady who alerted the police of his distress, wasn’t even a blood relative. At least one moral objective has been accomplished: the family that had little use for him in life won’t profit from his death.

    Comment by Denise Shelton — February 13, 2013 @ 11:08 am

  4. for all of those folks who love to see the city get sued, don’t forget its your tax dollars at work.

    Comment by John P.(L) — February 13, 2013 @ 3:29 pm

  5. 1. Dr. Kardashian??
    Mijoka you are something else!

    Comment by dc — February 13, 2013 @ 3:38 pm

  6. The City of Alameda’s response since the May 30, 2011, tragedy has been swift, comprehensive, effective, morally appropriate, and very heartening. For all the naysayers who only wish to criticize the City of Alameda, there are many of us who are very happy to see that perhaps Raymond Zack’s death–needless, accidental, suicidal, deliberate, or not–has not been completely in vain.

    I wish that the cost of improving city services and making progress had not come at such a high price, but our species seems unable to learn quickly or easily from experience or to remember its lessons for very long. We all need to pay closer attention to city governance to prevent mismanagement at the top from causing similar problems in the future.

    Had more of us paid attention to city budget issues in 2008-2010 and listened to our local firefighters, perhaps the AFD water rescue program would not have been cancelled and Raymond Zach would be alive today…And I am just as guilty as anyone for missing those issues before the training and the program were cancelled.

    Comment by Jon Spangler — February 15, 2013 @ 4:53 pm

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