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Justices Reverse $2.7 Million ‘Failure to Warn’ Judgment
Third District Says Parole Agents Had No ‘Special Relationship’ With Victim of Rape/Murder
By a MetNews Staff Writer
A $2.7 million wrongful death judgment against the California Department of Corrections and Rehabilitation, based on a jury’s view that the murder/rape of a woman by her grandson was primarily the fault of two parole agents for failing to warn the woman of his dangerousness, must fall, the Third District Court of Appeal held yesterday.
It held, in an opinion by Justice Elana Duarte, that San Joaquin Superior Court Judge Barbara A. Kronlund erred in allowing a jury to decide if the agents had formed a special relationship with the woman, giving rise to such a duty. The judge should have ruled, as a matter of law, that no such relationship was shown by the evidence, the justice wrote.
The grandson, Jerome Sidney DeAvila, had “a lengthy criminal history, including sex crimes, drug use and violence, had a history of sex crimes and suffered from psychiatric disorders,” the complaint in the case recited. Maintaining the action was the decedent’s son, who is DeAvila’s uncle.
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JEROME SIDNEY DEAVILA Prison inmate |
Arrest Days Earlier
On Feb. 13, 2013, DeAvila, who had removed his GPS tracking device, was located by authorities, found in possession of methamphetamine, and was arrested for violating his parole. He was released on his own recognizance one week later, and three days after that, he raped and murdered his grandmother, Rachel Renee Russell, 76.
Neighbors found her covered but unclothed body in a wheelbarrow three days after the slaying. When apprehended later that day, DeAvila was wearing his grandmother’s jewelry and was under the influence of drugs.
A jury assessed damages at $4.5 million; it determined that parole agents Roy Lacy and Adolfo Romero were 60 percent at fault and DeAvila was 40 percent responsible; and, slicing 40 percent from the award, Kronlund ordered entry of judgment for Davila’s $2.7 million, plus costs.
In her opinion invalidating the judgment, Duarte said:
“Although it is clear that the agents certainly could have done more to warn Russell about the danger posed by her parolee grandson as well as to encourage her to take steps to mitigate that danger, here we are compelled to agree with the Department that because the facts presented were not sufficient to establish that there was a special relationship between the agents and Russell, no duty to warn arose.”
From 2007 until early May 2012, Lacy was DeAvila’s parole agent, then Romero took over. Duarte said both agents knew of DeAvila’s dangerousness, but only in a general sense. “There is nothing to suggest, however, that either parole agent was aware that DeAvila posed a particularized threat of harm to Russell,” she wrote. “Russell raised DeAvila from a young age, and no evidence suggests that either agent was aware of any incident in which DeAvila had ever been violent toward Russell or threatened her.”
Psychologists’ Reports
DeAvila had been examined in February 2012 by two psychologists while committed at Atascadero State Hospital. One reported that DeAvila “represents a substantial danger of physical harm to others by reason of his severe mental disorder” and the other said he “presents a significant risk of harm to others.”
But their reports, Duarte pointed out, “did not mention Russell by name.”
She noted that Lacy, who came to Russell’s house twice monthly to check on DeAvila who lived there, came to be on a first name basis with each other and had a “positive relationship. But, the jurist said, “these contacts do not establish that Russell detrimentally relied on any representations by Lacy,” adding:
“Lacy never expressly represented to Russell that DeAvila was safe or that he would protect her from DeAvila, and Russell never expressed any concern for her safety or suggested that she required Lacy’s protection from DeAvila.”
Romero had allowed DeAvila to spend days, but not nights, at his grandmother’s house.
“[T]here is no evidence Romero expressly told Russell that DeAvila did not pose a danger to her, nor is there any evidence that Romero, in authorizing DeAvila to spend his days at Russell’s house, intended to convey anything about the safety of the proposed arrangement,” Duarte set forth. “Rather, Romero authorized DeAvila to spend his days, but not his nights, at Russell’s house specifically because he was a registered sex offender, and she lived too close to a school.”
The case is Russell v. Department of Corrections and Rehabilitation, C087916.
DeAvila in April 2014 pled guilty to rape, robbery, and murder of Russell and was sentenced to 25 years to life in prison.
Copyright 2021, Metropolitan News Company