Metropolitan News-Enterprise


Thursday, April 24, 2003


Page 1


C.A. Revives Suit by Parents of Children Killed at Day Care Center


By KENNETH OFGANG, Staff Writer/Appellate Courts


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 Fourth District Court of Appeal ruled yesterday.

An Orange Superior Court judge’s summary judgment ruling was overturned by a divided panel in Div. Three. The 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. He was sued by the Wieners, the Sotos and the parents of one of the injured children, but defaulted.

About $60,000 in insurance proceeds were reportedly paid to the families on his behalf.

Sierra’s mother, Cindy Soto, has gone on to become an activist in support of improved safety at preschools and an advocate of mandatory treatment of the mentally ill.

Funds Refused

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.

The 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.

Magic Mountain Case

He cited Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, which held that the theme park operator could be held liable to picnickers at Magic Mountain who were struck by an out-of-control car. While the specific factual scenario—a nondriver trying to help push-start a car—might not have been foreseeable, the possibility that users of a picnic area located within a parking lot might be injured might have been foreseeable, the court reasoned.

Sills, however, said Robison was distinguishable because the injuries there did not arise from a criminal act.

“This case arises out of a terrible tragedy, and the afflicted parents deserve our sympathy and condolences,” the dissenting jurist wrote. “But we should not compound this tragedy by unfairly making an innocent preschool, which had no warning of any prior similar acts, potentially liable for the murderous actions of a third person.”

The majority, he said, 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.

The case is Wiener v. Southcoast Childcare Centers, Inc., 03 S.O.S. 2029.


Copyright 2003, Metropolitan News Company