†††††††††††††††††††††††††††††††††††††††††††††††† THE COUNSELORíS CORNER

Did you read about the killings at a Costa Mesa preschool?In this matter a three year old and a four year old died in 1999, when one Steven Abrams intentionally drove his 1967 Cadillac through the school's fence and onto the playground.The question here is whether or not the young boy's parents could sue the school for wrongful death.The parents of the boys lost at the trial court level, however the Court of Appeal reversed.The Appellate Court upheld a cause of action for negligence claiming that even though the school's owners did not have notice that an individual would drive through their fence and attempt to run down children with his car, the school could be liable for not anticipating such behavior.The court was less interested in the state of mind of the driver than the fact that we have a basic auto v. human case and basic negligence law should apply.

The driver, Mr. Abrams, told investigators that he heard voices telling him to kill innocent school children.He then got in his car and did what he did.After the deaths, the families of the deceased children sued the owners of the preschool.The trial court judge, Hugh Brenner, dismissed the case indicating that this type of behavior was not reasonably foreseeable able and that therefore, the preschool should not be held liable.

The parents disagreed and appealed and the appellate court held the case should go to trial andthat it would be a question for the jury to determine whether or not the fence put up by the school was sufficient to protect the 40 to 50 children who would play in the playground at any one time.The school is right next to a very busy street.

The attorneys for the school indicate that they may well appeal this ruling.Their focus is on the fact that Mr. Abrams' behavior was intentional and generally intentional behavior such as this is not covered in negligence litigation.

The Appellate Court was of the belief however that it did not matter whether or not Mr. Abrams drove his vehicle through the fence intentionally or accidentally.Their holding indicates that the key question to them here is whether or not the fact that someone came through the fence and killed two small children was reasonably foreseeable.The court believes that this is something a jury should decide.

The key here is whether or not this is to be viewed as a standard negligence case or whether it should be taken out of the negligence arena as an intentional criminal act took place.As a result of his actions, Mr. Abrams was sentenced to life in prison in December of the year 2000.

The good news here is that the City of Costa Mesa has attempted to make sure this does not happen again.New city guidelines call for 42 inch high reinforced walls and 50 feet between a play area and potential hazards.Workable gates are now in and chain-link fences are now banned.

I believe this case will go to the California State Supreme Court.I do not believe the Appellate Court decision will be upheld.I cannot help but wonder what the Appellate Court would have done had Mr. Abrams shot his way through the fence and then killed the two youngsters with his gun before being apprehended.I fully understand the desire to give the parents of the young deceased children a remedy, but I am concerned that too large a can of worms will be opened if negligence causes of actions are permitted when intentional acts take place.I believe it would be materially different if someone accidentally drove off the road and somehow got through the fence and killed two youngsters.In that case, negligence theory would certainly apply.I would suggest however that someone driving negligently would not have been driving at the speed Mr. Abrams was in order to penetrate the fence.The appellate court voted 2 to 1 in favor of the parents of the deceased, however I find myself siding with presiding justice David Sills, who disagrees with the lumping of "criminal acts with accidental ones."I believe that accidental or negligent acts are one thing but intentional acts are quite another.This is a bad ruling and should be reversed.


Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.Mr. Unger writes a bimonthly column on legal and psychological issues.He can be reached at charlieunger @hotmail.com