Lawsuit Looms in Wake of Colorado Theater Shootings

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.

 

Comments

  1. You have made at least two factual errors in your descriptions of the Colorado Theater Shooting crime.

    (1) The shooter was not wearing “body armor”. He was wearing a black nylon tactical vest, it is the equivalent of a fishing vest with lots of pockets. Its purpose is to allow a person to carry lots of ammunition.

    (2) The “military grade semi-automatic weapon” was a simple commonly available civilian hunting rifle, not a military weapon. Yes, it was a semi-automatic rifle, but so are most other rifles.

    Furthermore the theater management has a policy that restricts patrons from exercising their otherwise legally protected right to carry weapons (either openly or with a concealed carry permit). Therefore, I believe that the theater owners have assumed an increased responsibility to protect the public since the ability to protect themselves has been taken from them.

    • Thanks for the comments. It is an interesting point you raise on whether a concealed carry restriction policy somehow increases the duty to protect. On the one hand, these policies are not that uncommon and are arguably a fulfillment of a reasonable duty to protect. On the other hand, it does potentially leave a person, who may otherwise legally carry a weapon, more vulnerable. I still don’t think this crime was foreseeable and I don’t know what reasonable steps movie theater should have taken to protect against it.

      I’d have to disagree with your assertions of factual errors in the article:

      1) The police chief’s press conference following the incident stated that the shooter was wearing a ballistic helmet, ballistic tactical vest, ballistic leg protect, throat protection, and groin protection. I’d consider that body armor. You can hear these statements at about minutes 10 into the video http://www.youtube.com/watch?v=2toZkIXh9VY.

      2) The weapon used by the shooter was an AR-15 assault riffle, which is widely considered to be the civilian version of the military’s M-16 assault riffle. Being prior military I have had the opportunity to shoot both weapons and I can assure you they are both very similar high capacity ASSAULT riffles. Sure the M-16 has a fully automatic switch, but it is seldom used because it makes the weapon difficult to control.

      • I still believe that you have two factually incorrect statements.

        (1) The police chief was wrong in his statements during the new conference. The vest was subsequently identified by the retailer as a Blackhawk Urban Assault Vest which was purchased from them at TacticalGear.com. It is made from a heavy-duty nylon that is often referred to in the trade as “ballistic nylon”, because this form of nylon was used in parachute harness construction (I used to work in this field.)
        http://tacticalgear.com/blackhawk-urban-assault-vest

        (2) The rifle used was a Smith & Wesson M&P-15 — AR-15 Style Rifle. Again, this is a civilian version of the military M-16. The AR-15 lacks both the full-auto and three-round-burst mode that the M-16 has. While the S&W M&P-15 looks like a military weapon, it is functionally very different. What actually scares most people about this gun is its stock and “add-ons” that do nothing to change its ability to fire a bullet. Many AR-15 rifles are sold with traditional wooden stocks and they were not classified as an assault weapon used the old “Assault Weapons Ban”. However those AR-15s with the “scary” stock were. (Go figure! This makes about as much sense as as banning a gun because it is blackened instead of chrome.)
        http://fox2now.com/2012/07/21/colorado-shooter-bought-tactical-gear-in-st-louis/

        As for the liability issue, please name me one other situation where a business is allowed to limit a citizen’s exercise of a constitutionally protected right without providing for reasonable alternative. (An example of accommodation would be a store that prohibited a protest within their building but must allow the protest on the public sidewalk outside.)

        BTW, when infrequent events (concerts) that gather crowds are held, the organizers are usually required to show proof that appropriate police/security is present as a condition to hold the event. Why are infrequently events held to this security standard but not businesses like movie theaters which may routinely aggregate as many people within one facility?

        • Sorry, I have a typo in (2) above. My sentence should be changed as follows:
          Many AR-15 rifles are sold with traditional wooden stocks and they were not classified as an assault weapon used under the old “Assault Weapons Ban”.

        • W. Ermet,

          Is Free speech a good enough example? Any business I frequent would eject if I mouthed off with racist or sexist remarks to its employees. To do otherwise would open them up to accusations of allowing a hostile work environment and lawsuits by their employees.

        • I also wanted to point out that movie theaters rarely have a capacity of over 5-6 thousand people while the concerts you mentioned often have 10 times that many

      • A point that you appear to have missed; the theater banned firearms then failed to enforce the ban resulting in patrons that had relied on the ban being killed. I suspect that this does indeed make the theater liable for the deaths.

        • My comment above was intended to be a reply to Mr. Green’s comment not W Ermet’s comment. Sorry about that.

    • Under circumstances where the theater owner had no involvement other than selling seats to see a movie, I think it would be rediculous to hold the owner liable for the unforseeable actions of a maniac.

      But . . . but . . . in this case the theater owner did more than “just sell seats”. The owner instituted a no-weapons-allowed rule, which no one would argue is not well within an owner’s right. However when the owner exercises that right to prohibit weapons and thereby removes from his patrons their ability to defend themselves, he takes upon himself the responsibility to defend them from unforseen actions that they would otherwise have had the chance to defend themselves from, but for his actions. But for the owner’s action, any one of several injured moviegoers who would otherwise have been armed (proof of this being the responsiblity of the plaintiff) might have protected himself and others. The business owner has the right to demand an unarmed patronage but he should not be allowed to escape liability for failing to prevent harm to those whom he has prevented from protecting themselves.

      A larrupin’ lawsuit with a several tens of millions of dollars judgement in favor of the plaintiffs should help make this point more easily understood by business owners who are otherwise taken with notion of posting “No Weapons Allowed” signs. It would be reasonable for recovery to be limited to those who could make a showing of proof that but for the owner’s actions, they would have been armed.

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  3. Rob,

    What do you think about the liability, if any, involved in allowing the shooter to exit through an emergency exit, prop it open and return to the theatre after suiting up – whether it was in full body armor, or some lesser body armor. Wouldn’t an emergency exit generally require some sort of alarm or something that would require the theatre security – if any – to check on what was going on. I am not saying that the vast majority of the blame is not with the shooter, it is, but what other available liability theories do you see.

    • Just wanted to point out that the exits in question are not usually alarmed simply because they are regularly used. With several hundred people in the theater, these exits are often used at the end of the show so that it doesn’t take 40 minutes for everyone to exit through the entrances.

  4. I guess these people want the TSA looking at naked pics of everyone just to watch a movie.

    The owner of the theater could have done ZERO to stop this. The guy didn’t walk in the front door with the weapons, he bought a ticket, went into the theater, walked out the fire exit and propped it open, grabbed his weapons and came back in shooting. How the manager or anyone else could have stopped this is beyond me.

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  6. The apartment complex where I previously resided had a written rule against firearms on the premises.

    So, by Rob’s theory the apartment complex owed my fellow tenants and me an army of guards on the off chance that a gun-wielding maniac decided to start breaking down doors and shooting people or be liable for damages. What’s really scary is that there are people who think like that in the jury pool.

  7. Some of the commenters here are nitpicking about things like the type of weapon involved, and are missing the main point.

    It’s not only ludicrous to say the theater has “primary responsibility” for the shooting. It’s absolutely disgusting, and driven by greed alone.

    If they wanted the sue the party that was primarily responsible, they would sue the shooter instead. But since Cinemark has more money to sue for, that’s where the attorneys set their sights.

  8. Truly a master of twisted logic to take a policy of restricting handguns in order to minimise firearms incidents and twist it into a liability issue because it somehow possibly might have not stopped a firearm incident. logic one can only shake ones head at.

  9. “However when the owner exercises that right to prohibit weapons and thereby removes from his patrons their ability to defend themselves, he takes upon himself the responsibility to defend them from unforseen actions that they would otherwise have had the chance to defend themselves from, but for his actions.”

    What an absurd argument. You might as well say that my local bar has to provide free childcare because they ban minors from their facility. Or that an art museum must provide free food and beverages to their patrons because they prohibit such items in their galleries. Does the city bus have to provide me with a kitty to play with because animals are banned? What if I’d prefer a zebra? Must the TSA tend to my nail care because they took away my nail clippers? You get the point… The fact that a business sets out a prohibition on certain items as a condition of entry does not mean that the business is taking on the responsibility to make up for the lack of such items.

    Customers are free to evaluate the trade-offs required to comply with the rules. If a customer doesn’t want to attend the movie unarmed, he is welcome to visit a movie theater that allows firearms or to wait and watch it later at home when it comes out on HBO. If anything, a patron who often travels with firearms is more aware than anyone of the consequences of his actions when he chooses to enter a business that allows or does not allow firearms.