Don Bauder 5:30 p.m., Dec. 5
Fired Lifeguard Won't Get Second Chance to Sue City
Former lifeguard James Murphy has lost his bid for a new trial in a case previously decided against him in which he sued the City of San Diego and former supervisor Edward Harris.
A former seasonal lifeguard for several years, Murphy was hired into a permanent year-round position in January 2008, with the first year of his employment considered a probationary period. His first assignment was to a rocky area near La Jolla Cove, where Harris was his assigned supervisor.
In a written performance evaluation dated March 9, 2008, Harris describes two incidents that occurred on the last day of Murphy’s evaluation period. In one, two scuba divers were rescued from a rip current by another lifeguard. Murphy was away from his station working out, which is permissible as long as lifeguards are available in case of an emergency. Murphy, however, did not respond to radio calls, sirens from responding vehicles, or the lowering of a flag at the lifeguard station, signaling an emergency.
Another incident the same day involved a kayaker entering La Jolla Cove and becoming stuck on a sharp and potentially dangerous rock patch known as Razor Reef. Harris, arriving on the scene, observed the kayak heading toward the reef and believed Murphy should have already been preparing to swim out and make a rescue, telling him something to the effect of, “You should already be gone on that.”
“On what?” Murphy responded, acknowledging he was unaware of the situation occurring on his watch. On Harris’s command, another lifeguard began to paddle out, but by this time the kayaker had managed to free himself from the rocks.
Noting two other incidents in January when Murphy was unreachable by radio while on duty, Harris’s performance report stated that Murphy “performed at a below standard level when it comes to situational awareness.”
In early April, Sgt. James Gartland became Murphy’s supervisor. On May 22, he sent an internal memo recommending Murphy be terminated for failing his probation. In addition to mentioning the incidents already reported by Harris, the memo outlined several more involving difficulty reaching Murphy by radio, suspected instances of untruthfulness by Murphy, and his missing a scheduled meeting with supervisors, as well as two more incidents in the water that illustrated Murphy’s apparently substandard observation abilities.
Murphy was finally removed from water observation after a May 16 incident in which two other lifeguards were completing a rescue at Shell Beach when a pair of snorkelers in an adjacent area required assistance. Murphy failed to notice them, and after Gartland called for assistance, one of the lifeguards who had just returned from the previous rescue swam back out to assist the snorkelers.
After being dismissed on May 29, Murphy filed suit, alleging discrimination and harassment, retaliation, and defamation. A jury found against him on all three counts.
The case made by Murphy in requesting a new trial was an allegation that Harris has untruthfully caused the previous jury to believe that Murphy was a liar and that he had “missed one or more rescues.” He argued that, since the kayaker he failed to observe was able to free himself without assistance, and that the snorkelers he also did not see were assisted by another lifeguard, neither should count as missed rescues.
The jury, however, responded that Harris did not “fail to use reasonable care to determine the truth or falsity” of his statements before putting forth the allegations, both of which were backed up by evidence as presented during trial.