Metropolitan News-Enterprise


Thursday, July 31, 2003


Page 1


S.C. to Decide Whether Parents of Children Killed by Deranged Driver May Sue Day Care Center


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether the parents of two children killed by a deranged motorist who deliberately drove his Cadillac through a chain-link fence and plowed into them on the playground of their day care center have a viable negligence claim against the center and its landlord.

The court voted 5-0 to grant review in +Wiener v. Southcoast Childcare Centers, Inc. (2003) 107 Cal.App.4th 1429, with Chief Justice Ronald M. George and Justice Janice Rogers Brown absent. A divided panel of the Fourth District Court of Appeal, Div. Three, had reinstated the parents’ suit after an Orange Superior Court judge granted Southcoast’s motion for summary judgment.

The Court of Appeal’s majority said the 1999 deaths of 4-year-old Sierra Soto and 3-year-old Brandon Wiener might have been prevented had the since-closed Southcoast Early Childhood Learning Center erected a sturdier fence or located the playground farther from the street.

“For purposes of evaluating whether a duty is owed, the issue of ‘foreseeability’ refers to whether the defendants’ alleged negligent conduct created a foreseeable risk of a particular kind of harm, not whether the specific conduct of a particular third party wrongdoer could be anticipated,” Justice William Bedsworth wrote.

Justice Kathleen O’Leary concurred. Presiding Justice David Sills dissented, saying the defendants should not be held responsible for an intervening criminal act.

Sierra and Brandon were killed, and four children and a teacher’s aide were injured, when Steven A. Abrams drove his car through the four-foot high fence and into a crowd of about 40 children and adults. Abrams, who had a history of mental illness and drug abuse, was quoted as telling police he wanted to “execute” the children.

In the aftermath of the incident, Abrams was convicted of the murders of the children and sentenced to life imprisonment without the possibility of parole. In accusing the center and the First Baptist Church of Costa Mesa, which leased the property to Southcoast, of negligence, the parents cited a request by the school director that the church provide funds to erect a sturdier barrier, and the church’s refusal to provide the funds.

They also noted a 1996 incident in which “a driverless mail truck traveling about 5 miles per hour jumped the curb in front of the defendant Early Childhood Learning Center, went through the fence surrounding the playground and stopped at the same tree where Abrams’ car was stopped.” Southcoast responded that that it had no prior knowledge of that incident, which occurred before it took over the center.

Orange Superior Court Judge H. Michael Brenner, granting summary judgment, said the defendants could not have foreseen that a “mad man” would decide to commit mass murder, and that a stronger barrier would not have deterred him.

But Bedsworth, writing for the Court of Appeal, said that even if the defendants could not have anticipated the

specific conduct involved, they could have foreseen that an automobile might be driven on to the playground, intentionally or otherwise.

Sills, however, said the majority was bidding “an unfortunate farewell” to traditional rules of foreseeability. “If today’s decision were the rule, insurers would require every tot-lot to be turned into a concrete bunker,” Sills argued.

In other action at yesterday’s conference, the justices agreed to decide whether, when Medi-Cal has provided medical services to an indigent beneficiary, the California Department of Health Services may obtain reimbursement from the recovery made by the beneficiary’s survivors in a wrongful death action. The Fourth District’s Div. Two, in Evans v. Select Products Co. (2003) 108 Cal.App.4th 800, held that it may.


Copyright 2003, Metropolitan News Company