Why Hollywood Probably Isn’t Legally Responsible for the Colorado Theater Shooting (Analysis)

In the wake of a shooting rampage at an Aurora, Colo. movie theater that left 12 people dead and dozens injured, the nation has been looking to figure out responsibility. So far, the debate over guns, movie violence and what led the suspect to behave like he did has been centered on moral responsibility.

But the legal responsibility will soon take center stage, not only in James Holmes‘ forthcoming criminal trial, but in the civil lawsuits that seem to be coming. Already, one man in the theater whose best friend died in the tragedy has hired an attorney. The lawyer says he’ll be targeting theater owner Cinemark, Dark Knight Rises studio Warner Bros. and Holmes’ doctors. “Somebody has to be responsible,” says the lawyer.

That might be a natural impulse, but history says that Warner Bros. and Cinemark are highly unlikely to be held liable for what happened.

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Over the years, there have been several attempts to pin legal blame on entertainment companies for fatal tragedies. Generally, two types of theories underpin such claims. The first is negligence for a wrongful death. The second is incitement to violence.

Time Warner, parent company of Warner Bros., knows better than most about liability here because the company has been involved in some huge cases on this front.

Among the lawsuits that Time Warner has faced was a $20 million negligence lawsuit by a woman paralyzed after being shot in a convenience store by an individual who watched Oliver Stone‘s Natural Born Killers over and over again; a $25 million wrongful death suit from the family of a man who appeared on the Jenny Jones show and admitted his secret crush on another man, who later murdered him; and a lawsuit from the parents of victims of a Kentucky high school shooting who claimed negligence on the part of makers of the video game Doom and the movie The Basketball Diaries, which allegedly caused the shooter to become “desensitized” to violence.

Each of these lawsuits was unsuccessful.

“There is a long line of cases holding that such claims simply don’t work,” says Paul Smith at Jenner & Block, who represented the defendants in the Kentucky shooting case as well as Nintendo, Activision and Sony in a lawsuit brought by families of victims killed in the shooting at Columbine High School in Colorado. “As a matter of tort law, the chain of causation is broken by the intervening intentional act of the shooter. As a matter of constitutional law, allowing liability for content that is enjoyed by millions, based on the idiosyncratic reaction of one person, would unjustifiably suppress protected speech.”

In terms of negligence, the primary factor that courts look at is the degree of “foreseeability” of a crime when measuring whether a party could have done more to live up to any duty to prevent it.

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There have been some instances where theater owners have in fact been held liable for fatalities. For example, about three decades ago in Massachusetts, an appeals court upheld a verdict against a theater owner screening Quadrophenia, a film depicting violence between British Mods and Rockers. After the film, in the parking lot, one of the theatergoers was stabbed to death. More recently, Loews Theater in Pittsburgh was found negligent by a jury last year for faulty security following a viewing of 50 Cent‘s Get Rich or Die Tryin where a patron was shot and killed.

In both instances, however, there was evidence presented that these theaters had experienced past security problems and were in high-crime neighborhoods, so there was a degree of foreseeability to the crimes committed.

The attorneys representing families of the victims of the Colorado shooting might similarly attempt to show past security problems at this particular Cinemark theater, but it’s quite a long shot.

“If the family member of a victim approached me about taking the case, I would express condolences, but I see no viable means for holding the theater liable,” says Eric Turkewitz, a New York attorney who runs a popular blog on personal injury law.

Turkewitz adds that beyond proof that theaters owed a duy of care and that the crime was foreseeable, the plaintiffs would also need to show causation — that better locks, security guards or cameras could have prevented the shooter’s behavior. “It’s hard to see what would have stopped this guy,” he says.

Other plaintiffs have tried to bring claims based on alleged incitement to violence on the part of media companies. Among the losers in this category was a lawsuit against The Tonight Show with Johnny Carson over the death of a boy who attempted to duplicate a hanging “stunt,” a lawsuit against Disney over an injury caused by someone attempting to copy a stunt on The Mickey Mouse Club, and separate lawsuits against Ozzy Osbourne and Judas Priest for suicides prompted by their music. Time Warner has experience on this front too, successfully defending a case that claimed “gangsta rap” by Tupac Shakur had caused the shooting of a Texas cop.

As one Florida judge wrote in a lawsuit involving an individual that had become “completely subliminally intoxicated” by television and shot his neighbor:

“At the risk of overdeveloping the apparent, I suggest that the liability sought for by plaintiffs would place broadcasters in jeopardy for televising Hamlet, Julius Caesar, Grimm’s Fairy Tales; more contemporary offerings such as All Quiet On The Western Front, and even The Holocaust, and indeed would render John Wayne a risk not acceptable to any but the boldest broadcasters.”

Of course, there’s always the exception to the rule.

Almost all cases have been defeats for the plaintiffs, but in the late 1990s, the family of victims of a contract killer sued Paladin Press, publisher of Hit Man: A Technical Manual for Independent Contractors. After a judge dismissed on summary judgment claims of aiding and abetting, incitement, and negligence, the 4th Circuit appellate court revived the lawsuit, writing that “the First Amendment does not pose a bar to a finding that Paladin is civilly liable as an aider and abetter of Perry’s triple contract murder.”

Rather than go to trial, the plaintiff then settled and took the book off the market.

And what did Hollywood do with this oddball case? They turned it into a movie, of course. Deliberate Intent, starring Timothy Hutton.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner