Cinemark and the Aurora Colorado Survivors

There’s been a big brouhaha on Facebook about reports that Cinemark Theaters if seeking to recover nearly $700,000 dollars from the survivors and families of those injured or killed in the theater shooting there on July 12, 2012. Twelve people were killed, and over 70 wounded when James Eagan Holmes set off tear gas grenades and shot into the crowd during a midnight showing of the  Dark Night Rises film in the Batman series.

Holmes was convicted of twenty-four counts of first-degree murder, 140 counts of attempted first-degree murder, and one count of possessing explosives on July 16, 2015. On August 7, 2015, he was sentenced to life in prison without the possibility of parole. On August 26, 2015, he was given 12 life sentences, one for every person he killed, and 3,318 years for the attempted murders of those he wounded, and for rigging his apartment with explosives.

Three victims sued Cinemark in the U.S. District Court for the District of Colorado on September 21, 2012 for the company’s alleged negligence in failing to provide adequate safety and security measures. Their attorneys released the statement “Readily available security procedures, security equipment and security personnel would likely have prevented or deterred the gunman from accomplishing his planned assault on the theater’s patrons.”

In response, Cinemark’s representation filed a motion to dismiss on September 27, 2012, on the grounds that there was no liability under Colorado law for failure to prevent an unforeseeable criminal act. Cinemark’s motion quoted extensively from the landmark California appellate opinion that held McDonald’s had no duty of care to prevent the 1984 San Ysidro McDonald’s massacre. On October 30, 2012, the court hearing the criminal case against Holmes denied a motion by some of the survivors that would have let them access sealed evidence for review in their civil action against the theater chain. On January 24, 2013, U.S. Magistrate Judge Michael Hegarty issued a recommendation that most of the claims be thrown out, as they were not allowable under Colorado law. He also said claims alleging violations of the Colorado Premises Liability Act could proceed.¹

The case recently made it to trial, and Cinemark was cleared of wrong doing. As part of standard practice when one has been sued in civil court and won, Cinemark as asked for reimbursement by the complainants for Cinemark’s legal costs. Of course, due to the high-profile nature of the crime, and the sympathetic feelings for the victims, Cinemark suddenly becomes a bad guy for not just sucking up the $700 in legal costs in incurred.

I am afraid I have to come down on the side of Cinemark on this one. Of course, the first argument on Facebook is that they could have/should have done more to protect the people at the theater. Well, a jury heard the evidence, and decided that Cinemark had taken prudent and reasonable care. One Facebook commenter complained, “Those people bought a ticket to see a movie, not be shot.” I responded explaining that here in Tampa, a large AMC multiplex lies right under a takeoff/approach path for Tampa Airport. I asked her (without any response thus far) how she would react if a jet liner crashed into that theater. That while I suspect the movie-goers bought tickets to see a movie, not to be in a plane crash, would she hold AMC responsible for not making their building impregnable to jet liner crashes?

One hopes the court and jury apply a standard of reasonableness to expectations for protection. I suppose we can make theaters far more secure, as I asked on the Facebook thread, “raise your hand if you’re willing to show up two hours before your movie time so you can go through an airport-like security checkpoint.” Strangely, no one seemed interested in that.

1. Wikepedia: 2012 Aurora shooting, Civil Litigation ↩