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Although sympathizing with parents of two children who died when a crazed driver plowed onto a playground in 1999, the justices of the California Supreme Court didn’t seem ready Wednesday to hold landowners liable for unforeseeable criminal conduct. How, the justices asked, can property owners — in this case, owners of a school — anticipate a murderous act? And what about the cost to build barriers that could withstand the onslaught of a car or truck? “Wouldn’t it be exorbitant to have to build car and vehicle fences around each school?” Chief Justice Ronald George asked an attorney representing the family of one of the victims. “Schools don’t have enough money as it is, let alone to build fortresses.” The court was reviewing a case in which Santa Ana’s 4th District Court of Appeal said Southcoast Childcare Centers Inc. and First Baptist Church of Costa Mesa could be liable for the deaths of 3-year-old Brandon Wiener and 4-year-old Sierra Soto. Both were killed on May 3, 1999, when Steven Abrams deliberately drove his 1967 Cadillac Coupe DeVille off a Costa Mesa street and through a 4-foot-high fence, accelerating up to 50 miles per hour as he hit a group of kids at the South Coast Early Childhood Learning Center. Besides the two who died, several other preschoolers were injured. Abrams, who told officers he had long wanted to kill children there, was convicted of murder and sentenced to life without parole. Attorneys for the families of the two dead children argued Wednesday that Abrams’ criminal conduct wasn’t pertinent, and that the day care center should have foreseen that a playground a few feet away from a city street, and protected only by a 4-foot-high chain-link fence, presented a danger to the children. No matter whether Abrams’ act was intentional, “the harm is the same,” said Newport Beach, Calif., lawyer Federico Sayre, who represented Eric and Cindy Soto. In fact, he and Fullerton, Calif., attorney Evan Ginsburg, who represented Aaron and Pamela Wiener, said day care officials were aware that in 1996 a mail truck went out of control and coasted through the fence and onto the same playground — albeit at only 5 miles per hour and not injuring anyone. “The previous act, though not criminal, put people on notice that the fence was inadequate,” Sayre, a partner at Sayre & Chavez, argued. But, Justice Kathryn Mickle Werdegar asked, did that really serve notice that a car could be driven through the fence intentionally, and to deliberately target children? The seven justices seemed inclined to follow the reasoning of 4th District Justice David Sills, who dissented from his court’s majority by arguing that landowners should not be held accountable for failing to foresee criminal acts. “To what extent can criminal conduct be reasonably anticipated?” George asked at one point. Los Angeles lawyers John McKay, who represented the church, and Gary Green, who represented the day care center, said there should be a heightened foreseeability standard for landowners faced with third-party criminal conduct. That was the standard established in the Supreme Court’s 1993 ruling in Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, McKay said, a standard ignored by the 4th District. The appeal court instead relied on two older Supreme Court rulings to find there was no difference between foreseeing a runaway car and one intentionally used as a murder weapon. The court’s majority justices — William Bedsworth and Kathleen O’Leary — felt both examples were a generic “kind of harm” that was foreseeable. Green, a partner in Harris & Green, argued that no one is able to foretell when and where a third-party criminal act will occur or whom it will hurt. “It’s extremely unfair,” he said, “to expect landowners to prepare for the unforeseeable.” Sayre, however, argued that the day care center and the church could have taken steps to make the playground safer. The fence, he said, could have been replaced with bollards, which are basically metal posts filled with concrete. George also attacked the concept that the playground was too close to the street. What if a teacher took a group of children to a nearby park and someone hit them with a car as they walked on a public sidewalk? Would that be negligence by the school? Ginsburg, a partner in Ginsburg & Hlywa, said he didn’t think so, and was quickly stopped by George. “Then why is that different?” he asked. “Why is it not alright to have them on a playground with a chain-link fence?” McKay, meanwhile, made the point that the fence wasn’t meant for the purpose suggested by his opponents. “It was to keep the children in,” he said, “not to keep people out.” Afterward, McKay said his and Green’s arguments were “only logical.” The law, he said, was never intended to require landowners to foresee third-party criminal acts. “Look at the crushing effect it would have on businesses,” he said. “Look what it adds on to the expense.” Ginsburg said any landowner should be responsible for a negligent act, “and it should be up to a jury” to decide whether it was foreseeable. A ruling in Wiener v. Southcoast Childcare Centers Inc., S116358, should be issued within 90 days.

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