April 18, 2013 7:28am PT by Eriq Gardner
Judge Denies Attempt to Dismiss 10 Lawsuits Over Aurora Theater Shooting
After the shooting tragedy last July 20 in Aurora, Colorado, during a midnight showing of The Dark Knight Rises, families of those hurt or killed looked for someone to blame. James Holmes is being charged with the criminal act of murders and attempted murder, but that wasn't enough for several victims. Ten separate lawsuits were filed against Cinemark, the owner of the theater where the shooting took place, which responded by saying that it couldn't have foreseen a shocking criminal act.
On Wednesday, U.S. District Court judge Richard Brooke Jackson considered whether the lawsuits should proceed.
In a personal note within his opinion, Jackson writes, "I suspect that many people, despite overwhelming sympathy and grief for the victims of the Aurora theater shootings, might upon hearing about these lawsuits have had reactions like, 'how could a theater be expected to prevent something like this?' I confess that I am one of those people."
But the judge quickly adds that the lawsuits "present difficult questions of interpretation and application of law," and calling it a "close call," he has decided that Cinemark should continue to face questions about its responsibility for the mass shooting last year.
Holmes faces 142 criminal counts for his actions on the day in question. When he allegedly opened fire and killed a dozen people and injured many others, he did so under certain circumstances.
There was no security personnel present as The Dark Knight Rises was being shown. There was no alarm systems that would have alerted theater employees to someone exiting and re-entering the theater. There was no measures put in place to see what was happening in the parking lot, where Holmes is said to have gotten his gun from his car parked next to the auditorium. And Cinemark didn't have trained employees to deal with such a situation either, nor allegedly was there any proper emergency response protocol.
Cinemark argued that "the fault here lies entirely with the killer" and that "random acts, by definition, are not legally foreseeable."
If the tragedy happened in another state other than Colorado, perhaps those arguments would have carried the day.
But in 1986, the Colorado legislature passed the "Premises Liability Act," which provided that invitees to a landowner's property "may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known."
The judge asks, What are the relevant dangers?
If defined as broadly as the plaintiffs wish, that might include failure to have security personnel, security devices and emergency plans. The Aurora victims allege that Cinemark knew about "previous disturbances, incidents, disruptions and other criminal activities had taken place at or near the property of the theater," including assaults, robberies and at least one gang shooting.
Judge Jackson notes "as a matter of common sense, there is a difference between assaults and robberies in the neighborhood... and a gunman's surreptitiously entering a theater and, without any motive or reason, randomly shooting as many innocent people as he could."
Still, the judge has decided to leave the door open for the plaintiffs to make the case that they knew about certain dangers -- for instance, any possible phenomenon of people sneaking into movie theaters -- and that a reasonable theater owner could have done more to protect theatergoers from what later happened.
"I postulate that some means of relatively rapid egress is needed for the safety and protection of patrons in the event of an emergency," writes the judge.
Before the lawsuits ever see a jury, the plaintiffs will have to detail with much greater particularity the known dangers and how it relates to the Aurora, Colorado tragedy. The significance of Judge Jackson's ruling on Wednesday, though, means that the plaintiffs will have the opportunity to discover documents and communications that might help them make the case. "What Cinemark knew on July 18, 2012 may be known only to Cinemark at this point," says the judge.
Judge Jackson dismisses the negligence claims, but won't toss those brought on the Premises Liability Act, including allegations that Cinemark should be penalized for wrongful deaths.
The decision follows the recommendation from a magistrate judge last January to pursue this path. Judge Jackson says, "Although I find that it is a close call, I ultimately agree."
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