The blockbuster Batman trilogy: Batman Begins, The Dark Knight, and The Dark Knight Rises, may have run its course. But the blockbuster litigation over the shooting on opening night is still going strong. This week, Cinemark suffered a significant setback in its defense of civil claims related to the incident.
On July 20, 2012, the opening night for the third movie in the trilogy, James Holmes purchased a ticket to see a midnight showing at the Century 16 theater in Aurora, Colorado. He exited the theater through an emergency exit, leaving the door propped slightly ajar. Then he returned to his vehicle, dressed in protective gear and obtained three guns and a tear gas canister. He returned to the theater and began shooting, ultimately killing 12 people and wounding 70 more. He was apprehended and has since pled not guilty by reason of insanity.
Just over two months after the shooting, the first premises liability lawsuit against Cinemark was filed, alleging Cinemark could have prevented the shooting by employing available security measures. A number of additional lawsuits followed, and the cases have been consolidated in the Federal District Court for Colorado, Case No. 1:12-cv-02514.
In its recent motion for summary judgment, Cinemark argued the lawsuit should be dismissed because it had a duty only to protect invitees from dangers of which it actually knew or should have known. They further argued the theater shooting was so unprecedented as to be legally unforeseeable. Cinemark extensively cited Lopez v. McDonald’s Corp., 193 Cal.App.3d 495 (Cal Ct. App. 1987), the landmark case of a mass shooting at a McDonald’s in San Ysidro, California. In that case, the California Court of Appeals affirmed a grant of summary judgment to McDonald’s, holding in part:
[U]nder all the circumstances presented, the risk of a maniacal, mass murderous assault is not a hazard the likelihood of which makes McDonald’s conduct unreasonably dangerous. Rather, the likelihood of this unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of McDonald’s nonfeasance did not facilitate its happening. [The assailant’s]…attack…is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence.
Cinemark argued the same logic applied to the Aurora theater shooting, which was unprecedented and therefore legally unforeseeable.
On August 17th, United States District Judge R. Brooke Jackson denied Cinemark’s motion. He ruled, essentially, that while the law has not changed since Lopez, our lives have. He noted that legal foreseeability is based on common sense and an appraisal of the risks of modern life. Referring to the increased frequency of mass shootings in recent years he distinguished the present case based on its timing:
One such relevant fact in the setting of modern life is simply the changed landscape in which any school or base or business where large numbers of people congregate operated in July 2012. Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, “sitting ducks.” One might reasonably believe that a mass shooting incident in a theater was likely enough (that is, not just a possibility) to be a foreseeable next step in the history of such acts by deranged individuals.
In addition to the above logic, the Court noted approximately 25% of Cinemark theaters employed some sort of security, at least for big movie premiers, and that Cinemark’s own safety policies required employees to be cognizant of persons entering or exiting through emergency exits. Given these facts, the court ruled foreseeability was an issue for the jury.
The logic of this ruling seems to greatly expand expectations for businesses to provide security against “active shooter” situations. This is only one District Court opinion, but if it can happen in Colorado, it can happen in just about any U.S. District. So what should business owners do to protect themselves from liability? The answer isn’t obvious, and the Court didn’t answer this question. “[W]hat should a reasonable theater have done before July 20, 2012 even if it recognized that ‘it could happen to us’? And, would any reasonable preventative measure or combination of measures have stopped Holmes?…[T]hese are questions for another day.”
Trial has been set for February 17, 2015. You can read the opinion here.