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LU Ref# CAI00022
April 4, 2022
Author Ref. No: Vol. 27 No. 4
LU Ref# CAI00022
April 4, 2022
Author Ref. No:   Vol. 27 No. 4

Robert Phillips
Deputy District Attorney (Retired)

“I just asked myself if I’m crazy? And we all said: ‘No.’”
Special Relationships and the Duty to Warn
COURT CASE REFERENCE: Russell v. Department of Corrections and Rehabilitation (Dec. 16, 2021) 72 Cal.App.5th 916

Absent a “special relationship” between a government agent and a potential victim, the agent has no duty to warn the victim that she is in danger.  A special relationship may be formed where a prospective victim relies to her detriment upon the representations of the government agent, giving rise to a duty to warn the victim of a potential danger to which the victim is otherwise unaware and to which she did not knowingly and voluntarily expose herself.
Rachel Renee Russell (victim) had a grandson—Sidney DeAvila—and a son—Steven E. Russell (plaintiff in this civil suit).  (Steven Russell was apparently DeAvila’s uncle.)   Rachel Russell raised DeAvila as if he were her son.  The problem was, DeAvila had psychological problems beginning around the age of 12; being on antipsychotic medication by the age of 19.  He began engaging in criminal activity at some point therein, eventually—as an adult—leading to prison time and parole.  DeAvila continued to live with his grandmother, Rachel Russell, between 2007 and 2013.  During this time period, DeAvila was constantly in trouble, periodically and consistently getting arrested, incarcerated, and then released, as described in excruciating detail over some five pages of this reported case decision.  Aggravated by an addiction to alcohol, cocaine and methamphetamine, DeAvila typically engaged in dangerous assaultive type behavior.  State Parole Officers Roy Lacy, and then Aldolfo Romero, as employees of the State Department of Corrections and Rehabilitation (referred to here as “the Department”), monitored DeAvila during this time period.  The agents listed DeAvila as a “high-violent” parolee in their reports; a fact that was never relayed to his grandmother.  In 2011, DeAvila was arrested for molesting a child and, upon conviction, was sent to the Atascadero State Hospital.  While there, psychological reports were written reflecting the fact that DeAvila “had a severe mental illness,” which included “auditory hallucinations” and a “paranoid delusional thought process,” resulting in a diagnosis of a “schizoaffective disorder and alcohol dependence.”  It was further noted that DeAvila had a history of treatment noncompliance, even telling his shrinks at one point that he was not planning on taking his medication following his release. Finally, and of important significance here, it was concluded that DeAvila “represent[ed] a substantial danger of physical harm to others by reason of his severe mental disorder.”  Upon his release from Atascadero, he returned to live with Russell.  The information concerning his mental issues and dangerousness was also never relayed to Rachel Russell despite the fact that the parole agents visited her home on a regular basis (twice a month) for the purpose of checking on DeAvila and administering drug tests.  Despite DeAvila constantly getting into trouble, it was noted that Rachel Russell, for the most part, seemed comfortable with him living with her, even asking on several occasions that he be released to her.  DeAvila continued to commit new crimes while periodically cutting off his ankle bracelet he was required to wear, or letting the battery expire, making it hard to locate him, all the while testing positive for cocaine and/or methamphetamine.  Whenever he was taken into custody, he would just be released again, often disappearing afterwards and failing to report in.  Romero requested warrants each time DeAvila absconded, noting that his continued presence in the community, as a dangerous registered sex offender, posed a threat to public safety.  Finally, around the first of January, 2013, Rachel Russell reported that she “had to pull [out] a knife” and force DeAvila—high on cocaine and “acting out”—to get out of her house.  On February 13, 2013, DeAvila was arrested (presumably due to this latest incident) and taken to jail, only to be released again a week later.  Finally, on February 23, it all came to a head when DeAvila returned to Rachel Russell’s home where he “tragic(ally)” raped and killed her.  Steven Russell, as Rachel Russell’s son, sued the California Department of Corrections and Rehabilitation in state court under the theory that Agents Lacy and Romeo had a duty to warn Rachel Russell of DeAvila’s dangerousness, but never did so, making them civilly liable for her death.  In his lawsuit, Steven Russel specifically alleged that the Department had developed a “special relationship” with Rachael Russell, triggering a duty to warn her of DeAvila’s dangerous propensities, but failed to do so.  A jury agreed and found the Department 60% at fault for Russell’s death by failing to warn her of a foreseeable danger that was unknown to her.  (DeAvila has held to be 40% at fault.)  Plaintiff was awarded $2.7 million as a result.  The Department appealed.