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2 YEARS

Cinemark Says It Had No Legal Duty to Foresee 'Dark Knight Rises' Shooting

A judge is told why he should dismiss lawsuits from victims of the July tragedy.

Dark Knight Rises Shooting Aurora Colorado Theater - H 2012
Getty Images

Cinemark USA Inc., the owner of the movie theater in Aurora, Colo., where a gunman killed 12 people and left dozens of others wounded at a July 20 midnight showing of The Dark Knight Rises, already has responded to lawsuits filed against the company last week.

Usually, a defendant will take weeks and sometimes months to answer a complaint. This time, Cinemark was prepared for the litigation that was coming. The company knew that it would be defending against those who experienced the massacre at the Century 16 theater attributed to James Holmes.

One thing that Cinemark didn't see coming?

"In plaintiff's view," says Cinemark in a motion to dismiss, "It is the people employed by Cinemark -- people who had never met the mass murderer and who are not trained in law enforcement or criminal pathology -- who had the legal obligation to foresee that he would commit this shocking criminal act and, because they allegedly should have foreseen it, should have had in place measures that may have prevented it."

Cinemark says that the plaintiffs, in demanding justice, want a judge and jury to punish it for not living up to an alleged "duty and burden" to have done more. "This invitation should be politely declined," the company argues, "as the fault here lies entirely with the killer."

In attempting to hold Cinemark legally responsible for what happened on one fateful night, the victims have a tough road ahead of them. The primary factor in negligence claims, such as the ones being brought by Denise Traynom, Brandon Axelrod and Joshua Nowlan is "foreseeability," and while there have been a couple of cases over the years where theater owners have been found liable for violence, the crime in this instance happened in a middle-class Denver suburb that Forbes ranked as the ninth-safest city in the U.S. based on FBI crime statistics. Some legal observers are doubtful about the probability of a win for the victims.

STORY: 'Dark Knight Rises' Shooting Victims Sue Cinemark

In the lawsuits, the plaintiffs claim Cinemark was negligent in failing to hire extra security and failed to take care by doing things like helping evacuate the theater even after the shooting ended.

On Thursday, Cinemark responded to those claims.

"The essence of the complaint is that Cinemark 'should have known' that James Holmes would commit a mass murderous assault in the Century 16 theater," it says.

The theater company continues on, pointing to all those who might share responsibility, including Warner Bros, but likewise were blind about what might happen:

"Never mind that federal, state and local law enforcement entities, trained in anticipating criminal conduct and armed with extensive resources, did not foresee -- and would not be expected to foresee -- Mr. Holmes' criminal conduct; that family members and friends who knew him personally and for multiple years did not foresee it; that a treating psychiatrist apparently did not foresee it; that personnel at the University of Colorado, who interacted with him regularly, apparently did not foresee it; that firearm and ammunition manufacturers and suppliers, who provided him with the means for mass murder, did not foresee it; that the studio that distributed the film did not foresee it; and that adult patrons in the theater on the night in question, some of whom accompanied young children under their care, did not foresee it."

The attorneys for the victims likely will present a case that even if they didn't see Holmes himself coming, they should have been prepared in general for a foreseeable shooting.

Cinemark has an answer for that too. In defense of Nowlan's lawsuit, the company says, "Plaintiff alleges no prior murderous mass assault in the theater or in any other Cinemark theater, much less one by an individual who left and returned through an exit door."

Without such specific information about why Cinemark should have anticipated the tragedy, the company says the allegations amount to a "random unbalanced individual [who] randomly chose this theater on this random night at this random time to randomly murder and injure other human beings."

Cinemark's lawyer Kevin Taylor looks to put that sense of randomness in a judge's head in asking for a dismissal based on a failure to state a claim upon which relief can be granted. Cinemark says, "Random acts, by definition, are not legally foreseeable."

Read the full motion on the next page.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner