TFC Short Shot: Unfounded lawsuit - The Aurora Theater Shooting


On August 30, 2016 the LA Times published an article titled “Aurora massacre survivors sued. How did 4 end up owing the theater $700,000?” As one would expect from the LA Times, it was long on emotion and short on facts. While anyone with a heart would certainly understand the grief suffered by the family of the victims, and the anger felt by those who survived with serious injuries, emotions do not change state or federal law. Let’s look at the facts underlying the lawsuit to better understand the result.

            On July 12, 2012, the Century 16 theater in Aurora Colorado was the scene of the murder of twelve people. Fifty-eight were wounded by gunfire and twelve more where hurt by the murder’s tear gas grenades or while fleeing the theater.  

The theater was hosting a premier screening of the then-latest Batman movie titled “The Dark Knight Rises.” Apparently, many in the audience were wearing costumes of some of the movie characters and this ultimately led to confusion concerning the threat they faced by the mass-murderer they would soon see launch his attack.

The attacker first threw two so-called “tear gas” grenades, then fired into the crowd with a shotgun, semi-auto rifle that malfunctioned, and finally a 40 caliber Glock Mod. 22. The murderer had bought a ticket, sat in the front row, then left through an emergency exit about 15 to 20 minutes into the movie. He returned several minutes later using the exit door he had rigged not to lock automatically. He was wearing body armor on various parts of his body, including a Kevlar helmet. The audience thought he was either part of the theater’s staging of the movie, just another movie-goer, or perhaps playing a prank. This led to a delayed response by patrons to the deadly threat they faced. How much this contributed to the casualty figures is impossible to determine.

It was reported that the first responding police officer was on the scene within 90 seconds. The Times article indicates the murderer was shooting for ten minutes. However, I find it highly unlikely that shooting went on this long with officers in the parking lot. If the officer was in the theater within 90 seconds, then this remarkably fast response time and is due to the fact that he was in the theater parking lot and heard and saw people fleeing the building. In spite of this amazing response time, the murderer had finished his rampage and was calmly sitting in his car. Though the focus of this Short Shot is the lawsuit, the clear and convincing evidence proves that every person is their own first-responder and if they are unarmed, they are defenseless.

In September, 2012, some of the victims of the shooting, or their surviving relatives, sued Cinemark in federal court, but the claims were based upon Colorado state law. I won’t go into the legal basis for suing in federal court for claims based upon state law, but it can be done in certain circumstances. The theater defended the claims on the grounds that, under Colorado law, it was not liable for the unforeseeable criminal acts of a third party. (This is essentially the law in Texas and in most other states as well.) The federal court judge agreed, but he gave the plaintiffs an opportunity to try to settle the case in mediation before the judge issued his final order. Attempts were made to settle the case, but t he agreed upon amount of $150,000 was rejected by one of the 41 plaintiffs. This prompted 37 of the plaintiffs to immediately withdraw from the case (no easy feat in federal court) and the remaining four pushed forward. The judge ruled in favor of the theater, just as he had advised the parties he would have to do according to Colorado law. Also according to Colorado law, the four remaining plaintiffs were order to pay the defendant’s attorney fees and defense costs. This amount is reported to be $699,000.

The case was unfounded from the beginning. The plaintiffs’ claims were essentially that the theater should have known that a patron would buy a ticket, walk out of the theater, arm himself and dress in his “battle gear,” then return to slaughter as many people as possible. Obviously, this can happen as it did happen, but liability laws deal with “foreseeability” not “possibilities.”

A point of contention in the Times article was the judge’s decision not to allow the plaintiffs to introduce a May 2012 Homeland Security memo into evidence. The memo was not provided in the article, but it allegedly warned theaters of the “potential for a mass-casualty attack on a theater.” The judge’s ruling was absolutely correct. In order for an event to be “foreseeable” in the legal sense, it must be reasonably likely, not merely a remote possibility. Again, this case deals with Colorado law with which I am not familiar. If this were to have taken place in Texas, the judge’s ruling would have been correct here as well. I won’t go into a long discussion about Texas law on liability for the unlawful acts of a third party over whom a person or entity has no control. It would take too long and put too many people to sleep. Suffice it to say that a plaintiff must have much more than a mere possibility or “potential.”

So who is to blame for this legal result? Is it the shooter, the theater, the victims and their loved ones, the judge, the Colorado Legislature, the media, the attorneys, or someone else? I want to look first at the woman who refused to sign the settlement agreement. I have no idea what her lawyer told her, but I suspect she was warned that they were going to lose the case and that Colorado law would require the four remaining plaintiffs to pay the defendant’s legal defense expenses. I don’t know that for a fact, but I’ve been an attorney for almost thirty years and I cannot imagine any attorney not fully apprising their client of such a substantial risk.

So are we to blame the woman who held out to the bitter end?   That’s a judgment call everyone will have to make for themselves, but let’s look at the facts surrounding this lady. She was in the theater and was wounded. As a result, she was paralyzed, the baby she was carrying died as did her daughter or son who was with her in the theater. Expecting her to take a rational and businesslike approach to a $150,000 settlement for 41 plaintiffs is not realistic. Her life was destroyed, so I don’t think we can blame her for the result, even though it was her decision that ultimately determined the outcome.

Is the theater to blame? Absolutely not! Even if there had been legally sufficient warning of an impending threat, which there clearly was not, there was and is no effective way to prevent the event. Some people will argue that an armed guard should have been present and that metal detectors should have been used. The efforts sound good, but they cannot stop a determined mass-murdered. Most come to kill and to die themselves and they will not be deterred by the presence of a security guard. The guard simply becomes the first victim.

As an aside, I want to point out that the terminology in vogue for a mass-murderer has changed over the years. They were once known as “dedicated shooters,” but the current term is “active shooter.” I think the former is a far more descriptive term as it better communicates the mindset of the murderer. Typically, they are people who not only do not fear death, but want to die either to avoid the legal consequences of their actions, or because they are suicidal.

Back to the “who done it” inquiry. The Colorado Legislature is not to blame by any stretch of the imagination, at least in terms of the State civil liability laws. If a person or entity can be held liable for the criminal acts of any third party with nothing more than a mere possibility that the event could occur, then Colorado would essentially create a strict liability situation for businesses. We need only look to California to see how well that concept has worked over the years.

Next up is the inquiry is the media. They should share some blame, but not to the point of civil liability. I’ve said it many times before; the publicity the mass-murderer receives as a result of media coverage unquestionably leads some people to commit such heinous acts. The higher the body count, the more helpless the victims, the more coverage will be given to these attention-starved sickos by the media. I’m not suggesting that the media should not report the events, but I am suggesting that they not dwell upon them for days or weeks on end. Report it like a fatal car wreck, without mentioning the name of the mass-murderer. Better yet, call the murder by terms that fit, like coward, dirt bag, looser and point out that their name will not be mentioned. Don’t give them what they want most – notoriety.

All this said, the media is not responsible for the lawsuit. That leads us to the attorneys. The defense attorney is not at fault for this result in any shape, form or fashion. She was doing precisely what our profession requires; i.e. represent your client to the best of your ability within the bounds of the law. In this case, she filed a motion to dismiss early on and some of the claims were dismissed. The Times article made an issue of the number of experts hired to defend the case and the expert witness fees paid compared to the plaintiffs’ counsel. The Times reports that the defendant hired five expert witnesses for a total of $500,000 while the plaintiff hired one for $22,000. The defendant’s attorney even brokered a settlement where the plaintiffs would receive $150,000 on claims that the judge had told the parties he was going to have to throw out. The Times article somewhat mocks the settlement amount in view of the number of plaintiffs, but offering to pay $150,000 on claims that the court was going to dismiss later that day would be considered generous by many. Remember, if the case had settled, not only would the plaintiffs have received a portion of the $150,000, the court would not have been forced to award $699,000 in defense costs. So the swing was 849,000! So no, the defense attorneys were not to blame.

How about the plaintiffs’ attorneys? That’s a hard question to answer, but as a civil trial attorney of almost 30 years, I do have two questions. First, on what possible grounds did he think he could make a claim under Colorado law? Secondly, was there a political motive involved? I suspect the latter.

One plaintiff attorney, Mr. Marc Bern, was from New York and one must wonder how he was chosen by the plaintiffs. He represented 27 of the 41 plaintiffs and his handling of the case was criticized. One complaint was the fact that he hired only one expert, a security expert. I don’t find fault with that decision for a number of a reasons. Expert witness fees come out of the plaintiffs’ share of any recovery, so an attorney must consider that in making decisions about experts. Mr. Bern stated he only needed a security expert. That seems reasonable on its face.

The unanswered question is as I mentioned earlier. How did Mr. Bern plain to get past Colorado law that does not place liability on the theater under the fact pattern of the case? To me the answer was clear – it was not going to happen. So it seems to me we are left with only one possibility and that was a political motivation, but that’s a question that will forever remain unanswered, at least in terms of concrete evidence. I suspect that the fact that firearms were used motivated some of the people involved in the case. Couple that with the rampant anti-gun rhetoric that had come from Bloomberg-funded anti-Second Amendment groups and President Obama, and it would be reasonable to believe the lawsuit was politically motivated.  

By now it should be obvious that the only person who unquestionably is responsible for the death, injuries and damages of 82 people is the one evil person who was willing to kill and maim to obtain his fleeting moments of notoriety. Nevertheless, the media and politically-motivated people and organizations are not without some measure guilt.

There is a point that must be learned from this lawsuit and the impact on the plaintiffs. Emotions do not change the law. People who try to use the courts to obtain what they cannot obtain by the legislature, whether it be the parties to the lawsuit, or their attorneys, do so at their own peril.

I want to make it clear that I am not blaming the victims or their loved ones who are plaintiffs in the lawsuit. They relied upon their attorneys in deciding whether to pursue this case.   No attorney is required to file suit and without their signature on the pleadings, this lawsuit would not have been filed.

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