Wiener

We granted review in this case to determine whether a child care center and its property owner should be liable in tort for a third party’s intentional criminal act against the center’s children, when there had been no reported prior similar criminal acts or indeed any similar activity on or near the child care premises. As will appear, we conclude that under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678 [ 25 Cal.Rptr.2d *1142 137 , 863 P.2d 207 ] (Ann M.), and its progeny, the center and property owner should not be liable because the criminal act involved here was unforeseeable.

Standard of Review

Because plaintiffs appealed from the trial court’s order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [ 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ] (Saelzler).) As we stated in Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181 [ 91 Cal.Rptr.2d 35 , 989 P.2d 121 ] (Sharon P), involving a negligence claim based on a criminal act and resolved on summary judgment, “To prevail on [an] action in…

I agree with the majority that the award of summary judgment in the child care center’s favor should be affirmed, and I agree with the “final observation” in the majority opinion that the record before us is “simply inadequate to make any automobile intrusion through the fence foreseeable.” (Maj. opn. ante, at p. 1150.) In my view, the circumstance that the event that caused the injuries in this case was not foreseeable is all that is necessary to resolve this case.

The majority focuses upon whether the child care center should be absolved from liability because the driver acted intentionally rather than negligently. This is an interesting question, but it is unnecessary to resolve it in this case. If it was foreseeable that children on the playground might be injured by automobiles accidentally entering the playground, and the child care center negligently failed to provide a sufficient barrier to protect the children against this danger, we would be faced with the vexing question of whether the child care center nevertheless should be absolved from liability in this case because the driver of the automobile that entered the playground acted intentionally rather than…

We granted review in this case to determine whether a child care center and its property owner should be liable in tort for a third party's intentional criminal act against the center's children when there had been no reported prior similar criminal acts or indeed any similar activity on or near the child care premises. As will appear, we conclude that under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678 , 25 Cal.Rptr.2d 137 , 863 P.2d 207 ( Ann M. ), and its progeny, the center and property owner should not be liable because the criminal act involved here was unforeseeable.

Because plaintiffs appealed from the trial court's order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 , 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ( Saelzler ).) As we stated in Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181 , 91 Cal.Rptr.2d 35 , 989 P.2d 121 ( Sharon P. ), involving a negligence claim based on a criminal act and resolved on summary judgment, "To prevail on [an] action in negligence, plaintiff[s] must…