When Madmen Attack
Photo by Don Leach/Daily PilotWhat's the saddest spot in Costa Mesa? That's easy, though you'd scarcely know from looking at it. It's a playground at the northeast corner of Magnolia Street and Santa Ana Avenue, hemmed in by a low, dun-colored block wall and block pillars that support thick, black iron bars. The wall seems a bit much—this is a playground, not a prison—but these days, you can scarcely find a daycare center or preschool that isn't similarly buttressed.
The reason is that on May 3, 1999, at the intersection's South Coast Early Childhood Learning Center, a crazy son of a bitch drove his '67 Coupe DeVille at 50 miles an hour into the chainlink fence that then surrounded the playground, aiming right at the children playing there. Two children were killed and several more mangled, all because nutcase Steven Abrams wanted people to take the voices in his head seriously. Oh, yes, we can hear them now.
This wouldn't be modern America if there weren't lawsuits. One, brought by the parents of the slain children, seeks to hold the daycare and the church that owns the property accountable for not having a better fence. This case has now found its way to the California Supreme Court, which is weighing a lower court's summary judgment that landowners can't be held liable for unforeseeable criminal conduct.
At first glance, this does seem like another of those frivolous lawsuits that blame businesses for the least sparrow falling on their property. The 1980s classic Lopez vs. McDonald's tried to fault the burger chain for not anticipating that some other mental crouton would massacre dozens of patrons at a San Ysidro franchise. Is every restaurant supposed to have armed guards and bulletproof bibs?
At the Costa Mesa daycare, how on earth could the school or church officials have imagined that a car would jump the curb and plow through the fence?
Maybe because an unmanned vehicle had done the same thing a couple of years earlier?
Sometimes the first glance doesn't tell the whole story. Remember the other famous case against McDonald's, where they were held accountable for hot coffee scalding a patron? Conservatives castigated the ruling, saying we were becoming a nation of crybabies who couldn't take responsibility for holding onto a cup. The twist, though, was that McDonald's had systematically served its coffee at upward of 180 degrees—hotter than the industry norm and hot enough to cause third-degree burns—because the coffee kept longer at that "holding temperature" and older coffee better served their bottom line.
The twist with the daycare fence was that it had been breached before, in 1996, when a postman had fallen out of his mail-delivery vehicle, which continued across the intersection at 5 mph, knocked down the fence and stopped only when it hit the same tree that later stopped Abrams' car. No children were present then.
According to Fullerton attorney Evan Ginsburg, who represents one of the plaintiffs in the 1999 case, a neighbor who helped the daycare's then-owner prop the fence back up said the owner was concerned parents might see it down and worry their kids weren't safe. When the daycare's new owners, Southwest Childcare Centers Inc., asked the property owner, First Baptist Church of Costa Mesa, to pay for a better fence, the church refused, citing costs, Ginsburg says.
State law says a private-school playground should have a barrier sufficient to keep children in and to protect them. Ginsburg says the fence didn't do the latter, and that's the issue regardless of Abrams' frame of mind.
"My argument is that whether he intentionally drove the car is not the issue. The issue is whether there was an unsafe situation. The example I used in court was the Ford Pinto with the exploding gas tank that Ford was liable for building. If Mr. Abrams that morning had decided to intentionally crash into a Pinto, does that mean Ford's not liable [for building an unsafe product]? My argument was that the fence and playground were unsafe, and if it had been an errant driver, a drunk driver, a blown tie-rod, a flat tire, or Mr. Abrams who intentionally drove on, isn't really an issue. Was it a type of harm that was foreseeable?"
Ginsburg postulates that if Abrams himself had died when he hit the tree and wasn't around for people to realize what a homicidal nutcase he was, then the school would have been held at fault for having an unsafe playground. Having kids playing four feet from a heavily traveled street behind a fence that's no barrier to cars is inherently unsafe, he says.
But what about the parents? If the situation was so clearly unsafe, shouldn't the parties most responsible for their kids' safety have been the ones to notice and act on the danger?
Not necessarily, he said. There was no way to know from looking that the fence posts weren't set sufficiently deep in the ground and that if they had been, perhaps the fence would have held.
The State Supreme Court—which is expected to make its ruling in the next two months—isn't deciding the case, just whether it merits hearing out in a lower court. So the tragedy that careened through that playground in 1999 may live on in the courts for many months to come. Ginsburg says money isn't the aim of the case: a non-wage-earning child's death doesn't count for much in legal land, and the brunt of fault would still lie with Abrams, not the daycare, he expects. The point, rather, is to make officials and the public aware of such dangers and to have the law reflect those dangers.
There are precedents, including a case that found Pacific Telephone at fault for locating a phone booth 14 feet from traffic, where an out-of-control car might hit it—and did, in the case that spurred the suit. I've wondered what became of that cool phone booth alongside PCH in Sunset Beach—the one that had a painting of Superman flying off mounted above it—and I'll bet it was this court case that prompted its removal.
I hate to be trite, but shit happens. Sometimes you choke to death on a Milk Dud. Sometimes diving headfirst into a Newport sandbar breaks your neck. Sometimes a TV show makes you kill. (The recent debut of The Swan, for example, has me primed to kill everyone associated with it.)
Somewhere you have to draw the line and say that individuals bear some responsibility in looking out for themselves, that sometimes death and disaster come knocking regardless of the precautions anyone takes.
Go too far, and we'll legislate all the life out of living—can't Superman have his damn phone booth?—and plod through our days encased in cotton wadding and tamper-proof bottles. Or instead go the way of the Bush wrecking crew, and we'll get an ultra-unregulated Deadwood where bosses can feed you to the hogs with impunity.
Ginsburg says he can see good arguments to both sides of the wall case and doesn't envy the judges, saying, "It's not an easy decision. You have to think about today's business climate and extending liability to business owners in a state that is having trouble attracting business. Public policy is a problem in this case, but I feel strongly that the law should be in my favor."
What's foreseeable? Who's responsible? These are questions that are also being raised about national security these days. There are differences, of course. For instance, the daycare wasn't sitting on memos reading, "Steven Abrams Determined to Strike on Playground." After the 1999 tragedy, the daycare built a stronger wall—instead of declaring war on the mailman who'd first breached the fence in '96. And locally, at least, there may someday be a ruling saying where the buck stops.
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