Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons? According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.” Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.
The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss. One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice. I believe that the primary responsibility at this point rests with Cinemark.” Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.
It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark. I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.
I feel a lot of compassion for the victims and the families of the victims of this heinous crime. I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer. However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer. Of course, a theater owes a duty to its patrons to keep them safe within reason. But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon. Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon? As recent events have show, even the military struggles to protect their own under similar circumstances.
If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons. It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening. This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums. These costs will undoubtedly be passed on to the consumer.
Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function. Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.