The tragic death of Raymond Zack in Alameda, California on Memorial Day, 2011 is back in the news again as the family’s wrongful death lawsuit winds its way through the court system.
According to news reports – at issue is whether the city of Alameda and the firefighters who responded to the scene had a legal duty to render aid to Zack, or whether they had immunity.
While the news reports do not indicate whether the public duty doctrine is at issue, it would certainly appear so. The duty to render aid and the applicability of immunity protection are not mutually exclusive. Someone could have a legal duty to render aid AND have immunity from civil damages for negligence. It is not an either or situation. That leads me to wonder if perhaps the media has it wrong.
More likely what is being argued is the public duty doctrine – the legal theory that government cannot be held liable for negligence when it breaches a duty to a particular person unless the duty owed to that person is greater than the legal duty which government owes to all members of the public. Under the public duty doctrine, in order for someone like Zack or his heirs to prevail against a public entity such as the city of Alameda, they must show that the governmental entity was negligent and owed them a “special duty”.
A special duty can arise in a number of ways – but it usually requires a promise of help made by the governmental entity that is reasonably relied upon by the victim. It requires more than just a request for help and the fire department responding – to create a special duty. In one of the classic cases a woman called 911 for an ambulance for her husband, and was assured that a fire department ambulance was on the way. When it did not arrive as promised she called again and was again assured it was on the way. This went of for 4 calls and over 40 minutes before the ambulance arrived. The court concluded that the dispatcher’s assurances to the woman, along with his suggestions that she go out on the porch and listen for the siren when he knew a unit had yet to be dispatched created a special duty.
If indeed the public duty rule is applicable to the Zack case – a key point in the case will likely be the role that the fire and police departments played in preventing others from attempting a rescue. The family’s attorney makes that point in the following video clip. Can preventing others from attempting a rescue CREATE a special duty to act on the part of rescuers?