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Property owners cannot be held liable for a third party’s unforeseeable criminal act that results in injuries or death, the California Supreme Court ruled Thursday. The unanimous decision, relying on a balancing test established in an 11-year-old ruling, confirms that courts must apply a heightened sense of foreseeability before holding a defendant liable for someone else’s criminal conduct. “It is difficult, if not impossible, in today’s society, to predict when a criminal might strike,” Justice Ming Chin wrote. “Also, if a criminal decides on a particular goal or victim, it is extremely difficult to remove his every means for achieving that goal.” Deborah La Fetra, who filed an amicus curiae brief with the court for the Sacramento, Calif.-based Pacific Legal Foundation, called the ruling a major victory for landowners who face enormous liability for events largely out of their control. “Property owners have a duty to make their premises safe,” she said. “But they can only do that to the extent that they know what they are making it safe against.” However, plaintiffs lawyer Federico Sayre, a Santa Ana, Calif., solo, said Thursday’s ruling is “completely consistent with the trend of appellate courts and the Supreme Court to basically try to insulate landowners from third-party criminal activity.” He also said it gives landowners one free pass for intentional criminal conduct before they are held accountable. The case was brought by two couples whose children were killed on May 3, 1999, when Steven Abrams deliberately drove his Cadillac Coupe De Ville onto a church playground in Costa Mesa, Calif. Abrams, who told officers he had harbored a desire to kill kids on that playground for years, was sentenced to life without parole. In suing Southcoast Childcare Centers Inc. and First Baptist Church of Costa Mesa, the two couples claimed it didn’t matter that Abrams acted intentionally. It was enough, they contended, that it was foreseeable that a 4-foot-high chain-link fence wouldn’t protect children from cars on a busy street. Three years earlier, a mail truck went out of control and crashed through the fence at a low speed. Although no one was hurt, the parents argued that the incident revealed the weakness of the fence. San Diego County Superior Court Judge Hugh Michael Brenner tossed the suit, but Santa Ana’s 4th District Court of Appeal reinstated it in a 2-1 vote, saying the crime was a generic “kind of harm” that should have been foreseeable. The Supreme Court, however, sided with dissenting 4th District Justice David Sills, saying that the majority had ignored the high court’s 1993 ruling in Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666. That decision distinguished between ordinary negligence and violent criminal acts, and established a test balancing the forseeability of harm against the burden of duty imposed on the property owner. On Thursday, the Supreme Court held that liability for third-party criminal conduct requires a heightened sense of forseeability. “The court did not give due consideration to the criminal nature of Abrams’ injury-producing act,” Justice Chin wrote, “and thus created a duty test that is far too broad.” Chin said Abrams’ crime was brutal and that there was no evidence of any similar act that would have put the church or child care center on alert that there were dangers to the children in their care. “Indeed, here, the foreseeability of a perpetrator’s committing premeditated murder against the children was impossible to anticipate,” he wrote, “and the particular criminal conduct so outrageous and bizarre, that it could not have been anticipated under any circumstance.” The church and child care center, he said, “could not have been expected to create a fortress to protect the children.” In a separate concurrence, Justice Carlos Moreno said he felt the court could have resolved the issue without hinging it on whether the driver acted intentionally or negligently. “We should not be eager to base a landowner’s liability for an injury caused by a third party upon the mental state of the third party,” he wrote. “Such an approach could prove troublesome if the mental state of the third party was difficult to determine.” Justice Kathryn Mickle Werdegar concurred with Moreno. La Fetra, of the Pacific Legal Foundation, said the ruling is also significant because the court currently has four other cases on its docket that deal with third-party criminal conduct. “The key point that PLF has argued in all those cases is that heightened foreseeability is the key to analyzing these criminal acts on private property,” she said. “And we’re obviously pleased to see that the court has made a strong statement” that that’s the case. Sayre represented Eric and Cindy Soto, whose 4-year-old, Sierra, was killed in Graham’s attack, while Evan Ginsburg, a partner in Fullerton, Calif.’s Ginsburg & Hlywa, argued for Aaron and Pamela Wiener, parents of 3-year-old Brandon. Southcoast Childcare Centers was represented by Gary Green, a partner in Los Angeles’ Harris & Green, while John McKay, a partner in L.A.’s McKay, Byrne & Graham, argued for the church. The attorneys could not be reached Thursday. The ruling is Wiener v. Southcoast Childcare Centers Inc., 04 C.D.O.S. 3886.

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