Metropolitan News-Enterprise


Friday, May 7, 2004


Page 1


Day Care Center Lacked Duty to Protect Children From Deranged Motorist, State High Court Rules


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 lack a viable negligence claim against the center and its landlord, the California Supreme Court ruled yesterday.

“[W]e conclude that under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666...and its progeny, the center and property owner should not be liable because the criminal act involved here was unforeseeable,” Justice Ming Chin wrote for the court.

The ruling reinstates a summary judgment in favor of the operator of the now-closed Southcoast Early Childhood Learning Center and the church that owned the property.

The Court of Appeal said the 1999 deaths of 4-year-old Sierra Soto and 3-year-old Brandon Wiener might have been prevented had the defendants erected a sturdier fence or located the playground farther from the street. But the high court held that a duty to protect occupants of land from intervening third-party criminal acts can only be imposed on the landlord or lessee if the specific type of criminal act is sufficiently foreseeable to outweigh the costs of imposing such a duty.

     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 Beckett, has gone on to become an activist in support of improved safety at preschools and an advocate of mandatory treatment of the mentally ill.

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 mail truck, traveling about 5 miles per hour after its driver fell out while reaching to open a mailbox, allegedly jumped the curb in front of the day care 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.

Chin agreed, citing Ann M., in which the court held that the owner of a shopping plaza had no duty to provide security guards who might have prevented the rape of an employee of one of the stores. The costly burden of providing such guards, measured against the very low foreseeability of the rape—there had been some burglaries and purse snatchings at the center, but no prior sexual assaults, the court noted—was held to require a conclusion that no such duty existed.

As for Southcoast, Chin rejected the conclusion of the Fourth District’s Div. Three 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.

The lower panel relied on 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.

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

“Specifically, the court did not give due consideration to the criminal nature of Abrams’s injury-producing act, and thus created a duty test that is far too broad, even when we are dealing with the landowner’s duty to protect children from perils that reasonably could have been foreseen,” Chin wrote.

The Robison court, he noted, found Ann M. inapplicable, acknowledging that a higher degree of foreseeability may be required when the third-party conduct that a defendant allegedly failed to protect against was criminal rather than merely negligent.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, and Janice Rogers Brown joined in the opinion. Justice Carlos Moreno, joined by Kathryn M. Werdegar, authored a separate concurrence questioning whether the distinction between third-party intentional acts and negligence ought to be determinative in every case.

“I am hesitant to adopt a rule that hinges whether a landowner is liable upon the mental state of a third party that causes injury, rather than upon whether the landowner was negligent in failing to guard against the type of danger that caused the injury and whether such negligence was a proximate cause of the injury,” Moreno wrote.

The case was argued by Orange County lawyers Evan L. Ginsburg and Federico C. Sayre for the plaintiffs, by John P. McKay of the Mid-Wilshire firm McKay, Byrne & Graham for the church, and by Gary L. Green of Century City’s Harris & Green for Southcoast.

The California School Boards Association, Pacific Legal Foundation, and Pacific Justice Institute filed amicus briefs in support of the defendant.

The case is Wiener v. Southcoast Childcare Centers, Inc., 04 S.O.S. 2276.


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