Opinion

Alison Frankel

Placing blame for Aurora mass shooting: Is movie theater responsible?

By Alison Frankel
April 19, 2013

I have a feeling that we’re going to be hearing a lot more about a ruling Wednesday by U.S. District Judge R. Brooke Jackson of Denver, who said that victims of the Batman movie massacre in Aurora, Colorado, may proceed with claims that the Cinemark movie theater is responsible for the tragedy under the state’s premises liability law. Moviegoers were owed “a duty to exercise reasonable care to protect them against dangers of which Cinemark knew or should have known,” Jackson ruled. The judge, who is overseeing 10 federal-court cases consolidated for discovery, found that the victims’ suits raised enough questions about whether Cinemark failed to anticipate that a killer could enter the theater unarmed, sneak out to obtain weapons and re-enter undetected – and whether the theater had in place adequate security to deal with a reasonably anticipated threat – to survive Cinemark’s dismissal motion.

He did not reach that conclusion lightly. Jackson said that he was initially skeptical of the plaintiffs’ claims, despite “overwhelming sympathy and grief for the victims of the Aurora theater shootings.” Like many people, he said, his first reaction to suits against Cinemark was, “How could a theater be expected to prevent something like this?”

That’s the question Cinemark’s lawyers at Taylor Anderson highlighted in their motion to dismiss federal-court suits against the theater, and it’s why this case should be closely watched by businesses open to the public. Is it reasonable to expect that untrained movie theater employees could anticipate a mass murder? After all, the family and doctors of the accused gunman, James Holmes, didn’t know that he would open fire in a movie theater, killing 12 people and wounding 70. Law enforcement agencies and officials at the university Holmes attended didn’t foresee it. Nor did the companies that supplied Holmes’s guns, ammunition and other weaponry. Yet suits against Cinemark would impose responsibility for the horrific tragedy only on the movie theater, under the theory that it should have known a mass murder could take place on its property and failed to take steps to prevent it.

“The people at Cinemark, like people across this country, are horrified, shocked and deeply saddened by the senseless deaths and injuries caused by Mr. Holmes’ criminal act,” the dismissal motion said. “However, it is legally improper, and grossly unfair, to place on a private business entity operated by private citizens the legal obligation to foresee the patently unforeseeable conduct of the criminally unbalanced, most particularly where the criminal act is random and unprecedented in its business activities. Indeed, if the law was that private business entities must foresee unlikely and unpredictable criminal conduct, there would be no reasonable limitations or boundaries on the liabilities of entities that provide desirable events, products and services.”

Judge Jackson was mindful of those arguments, but he found that victims should be allowed to probe exactly what Cinemark knew about past criminal activities at the Aurora theater (which had been the site of occasional gang-related violence), what it should have known about the risk of shootings, and what informed its decisions about safety and security for moviegoers. Holmes, after all, apparently made more than one trip from the theater to his car, where he had stored weapons and ammunition, and each time returned to the theater via a door he had propped open. “This took an extended period of time, but he was not monitored, deterred or contacted by theater personnel,” the judge said. Jackson also noted that the theater didn’t bring in security guards for the midnight Batman premiere, even though it often hired security on the weekends. Though dismissal was “a close call,” the judge said, given the innumerable questions about reasonable care and foreseeable danger, plaintiffs are entitled to answers.

Before businesses begin installing armed guards to ward off phantom mass murderers, I should note that Jackson left open the prospect that the victims’ cases might not survive summary judgment. He cited, in particular, similar claims against a California McDonald’s that was the site of a 1984 shooting spree. Like the Aurora theater, the fast food restaurant was in a violence-prone neighborhood and had hired occasional security guards. Nevertheless, a state appeals court ultimately determined that McDonald’s simply wasn’t responsible for failing to anticipate a massacre. Such a “deranged and motiveless attack,” the court said in Lopez v. McDonald’s, “is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct.”

Cinemark’s counsel didn’t respond to my email request for comment. Nor did plaintiffs’ lawyers at Keating, Wagner, Polidori & Free. A lawyer for plaintiffs in parallel state-court suits against Cinemark told my Reuters colleague Keith Coffman that Jackson had done “the right thing.”

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