• A Government Agent’s Duty to Warn
• The “Special Relationship” Prerequisite to the Duty to Warn

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.

The Third District Court of Appeal reversed.  On appeal, it was stipulated that the Department failed to specifically warn Rachel Russell that DeAvila might be a danger to her.  The Department, however, argued that they had no duty to warn Russell of DeAvila’s dangerous propensities.  The Appellate Court agreed.  (The Department also argued that they were statutorily immune from liability pursuant to Government Code sections 820.2 and 845.8; an issue the Court found it unnecessary to address given its reversal based upon the “duty to warn” issue.)  The rules for when the government is required to warn someone of a pending danger are well-settled.  Specifically, a government entity does not have such duty to warn absent there being what is commonly referred to as a “special relationship” between the government agency at issue and the victim.  First, it was noted that the trial court erred in assuming whether or not such a special relationship existed was a “factual issue,” and thus one for the jury to decide.  To the contrary, the case law is clear that this is a “legal” determination to be made by the trial court and not the jury. (E.g., see  Tarasoff v. Regents of University of California (1976) 17 Cal.3rd 425, 620.)  The Court therefore ignored the jury’s findings on this issue and made its own determination.  In so doing, the Court considered the following:  “As a general rule, one (including a government agency) owes no duty to control the conduct of another, nor to warn those endangered by such conduct.”  There are exceptions, however.  “Such a duty may arise if ‘(a) a special relation exists between the actor (the Department, in this case) and the third person (i.e., DeAvila) which imposes a duty upon the actor to control the third person's conduct (see Note, below), or (b) a special relation exists between the actor (the Department) and the other (i.e., Racheal Russell) which gives the other a right to protection.’” (Davidson v. City of Westminster (1982) 32 Cal.3rd 197, 203; see also Tarasoff v. Regents of University of California, supra, at p. 435.)  The Court had some difficulty defining what is meant by a “special relationship,” trying to explain the concept by example rather than giving us a one-size-fits-all definition.  For instance, special relationships have “an aspect of dependency in which one party relies to some degree on the other for protection.”  (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 620–621.)  “The corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. ‘[A] typical setting for the recognition of a special relationship is where “the plaintiff is particularly vulnerable and dependent upon the (civil) defendant who, correspondingly, has some control over the plaintiff's welfare.”’” (Id. at p. 621.)  The Court further noted that “the factors to a finding of a special relationship include ‘detrimental reliance by the plaintiff on the officer’s conduct, statements made by them (the officers) which induced a false sense of security and thereby worsened her position.’” (Citing Williams v. State of California (1983) 34 Cal.3rd 18, 28.)  On  the other side of this coin: “Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.” (Id. at p. 25.)  It helps to cite some examples:  A special relationship and a corresponding duty to warn has arisen where, for instance, a deputy sheriff promised to warn a victim if a prisoner, who had threatened the victim’s life, is released from custody, but then fails to do so, and then the released prisoner harms the victim who had reasonably relied upon the deputy sheriff’s promise.  Under these facts, it was held that there was a special relationship created between the two, rendering the deputy sheriff civilly liable for the resulting harm. (Morgan v. County of Yuba (1964) 230 Cal.App.3rd 938.)  In a different context, it was held that the State of California was civilly liable for creating a dangerous circumstance when an agent of the state requested that the plaintiff provide a foster home for a 16-year-old boy without warning the plaintiff of the boy’s homicidal tendencies and violent background, and where the boy then attacked and injured the plaintiff.  The California Supreme Court subsequently ruled in this case that “the state’s (special) relationship to [the] plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee’s history or character.”  The Court added that a duty is imposed “upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril.”  (Johnson v. State of California (1968) 69 Cal.2nd 782.)  (Other examples are provided at pp. 932 to 934 of the case decision.)  In this particular case involving DeAvila and Russell, however, the Court failed to find—contrary to the plaintiff’s arguments—that any “special relationship” between the Department (i.e., the parole agents) and Russell was formed.  In so ruling, the Court held that what was lacking was evidence that either of the agents made an express or implied promise of protection upon which Russell relied to her detriment, or that they created a foreseeable peril that was not readily discoverable by Russell.  It was first conceded that both of DeAvila’s parole agents were fully aware that he was dangerous—a condition that was aggravated by his known alcohol and drug abuse—and that he had a history of assaulting people.  It was also known that he was mentally unstable.  But it was Russell herself, and not the agents, who encouraged DeAvila to reside in her home.  At no time over the years did the agents expressly or impliedly promise that they were in a position to protect her from DeAvila’s violent propensities, nor did they create the situation that eventually led to Russell’s death.  The fact that one or both of these parole agents communicated with Russell on a regular basis, consistently visiting her home to check up on DeAvila, did not alter this conclusion.  To the contrary, it was Russell herself—without any encouragement from either agent—who insisted that DeAvila be allowed to continue to live with her, often picking him up upon his release from custody and consistently expressing the belief that she was perfectly safe with him in the house.  The Court therefore concluded (after reviewing all the surrounding circumstances of the agents’ and DeAvila’s relationship to Russell) that no special relationship had been formed.  The Department, therefore, could not be held civilly liable for Russell’s death.

This case is important to law enforcement officers in that it stands for the proposition that you don’t incur any potential civil liability by failing to warn future victims about prospective dangers absent having done something to create a “special relationship” with that victim.  You do that, for instance, by making representations to the victim that you will protect him or her in some way, and then fail to follow through with that promise to the victim’s detriment.  So don’t go making promises you don’t intend—or you’re not in a position—to keep.  However, the case law listed above goes further than this.  There is a second way to prove a special relationship that although identified, is not discussed by the Court.  In addition to the above, it is also a rule that there may be civil liability if it is proved that there exists a special relationship between the involved government agency (or its agents) and the person who does the harm.  As noted above, liability may also be imposed “if the (civil) defendant bears some special relationship to the dangerous person. . . .” (Zelig v. County of Los Angeles (2003) 27 Cal.4th 1112, 1129.)  This would include “impos(ing) a duty upon the actor (the Department) to control the third person’s (DeAvila’s) conduct”  (See Davidson v. City of Westminster, supra; and Tarasoff v. Regents of University of California, supra.) In other words, in this case, there may have been a special relationship between the Corrections and Rehabilitation Department and DeAvila.  Other than citing the rule, the Court here fails to delve into the issue of whether the State Department of Corrections and Rehabilitation had a duty to control DeAvila’s conduct, creating a “special relationship” in that regard.  The Court either missed this issue altogether or just assumed it didn’t apply.  Either way, it was not discussed.  But I don’t find it irrational to argue that a parole officer has a duty to control the actions of his or her assigned parolee.  Here, DeAvila was supposedly under the control of Parole Agents Roy Lacy and Aldolfo Romero.  And it appears from the facts as listed in this decision that DeAvila was consistently being arrested on parole violations (in addition to new crimes, often involving violence), incarcerated, and then released again back out onto the streets where he would inevitably repeat his bad, and often violent, behavior.  Note that in Tarasoff v. Regents of University of California, a therapist was held to have a special relationship to a potentially violent patient, triggering a duty to warn a prospective victim who the patient had threatened to harm.  In this new case, DeAvila never specifically threatened Russell, but was known to have engaged in assaultive conduct which, arguably, should have put the parole agents on notice that he might do something similar to Russell.  If there was a special relationship between the parole agents and DeAvila, they perhaps had a duty to warn Rachel Russel.  But as mentioned, this issue was not discussed.  It might be an issue, however, worth taking up to the California Supreme Court.