Judge Keeps Batman Massacre Case on Track

     DENVER (CN) — Cinemark Theaters cannot dismiss wrongful-death and premises-liability charges from 27 victims and relatives of victims of the Batman movie massacre, a judge ruled.
     Cinemark attorney John Roach told Pueblo County Judge Phillip Douglass and a jury of five men and two women that the lawsuit unreasonably asked Cinemark to foresee the unforeseeable. Roach, a former NBA player and now an appeals specialist, told the court that Cinemark would not have been able to thwart Holmes with added security.
     “This court is not in a vacuum,” Roach said in court Friday. “The threshold question for the court is whether Cinemark should have known the likelihood of a violent crime.”
     During the first week of the civil trial, the plaintiffs cited crime rates in the theater’s Aurora neighborhood and said Cinemark should have anticipated the possibility of a criminal incident.
     Cinemark’s attorneys answered that Aurora was listed as No. 9 on the Forbes magazine list of America’s safest cities, and that an annual FBI report found it the safest large city in the state.
     “The plaintiffs presented evidence of cap scores,” Roach said. “A cap score involves any crime 3 miles near the theater. Like, a teenager breaks a car window. The cap score is a red herring. It’s immaterial.”
     Roach also cited a Department of Homeland Security memo sent to theaters across the country months before the shooting. The memo, which warned theaters that they could be targeted for terrorist activity, was excluded from evidence by Judge Douglass before the trial began. Roach said this was a fatal blow to plaintiffs’ case.
     “It’s clear that plaintiffs were relying only on the Department of Homeland Security document,” Roach said. “[Plaintiffs’ attorney] Bern waived that document in front of the TV cameras repeatedly before this started.
     “Plaintiffs have not offered any expert testimony. [Cinemark’s] guidance policies are generally used by good companies across the world.
     “A widely motivated armed to the teeth killer with enough firepower to take out a small municipality with no plans to return home to a bomb-infused apartment … he couldn’t have been deterred by a camera. A camera doesn’t deter armed robberies across the country.”
     Douglass asked Roach what his argument meant in regard to the standard of care expected from movie theaters.
     “If I look to Cinemark’s policies, which include workplace violence, and said that it’s foreseeable because they have a policy … how does that affect standard of care?” Douglass asked. “Do they have to have a Ft. Knox-like security?”
     “It has to be a responsible response to a foreseeable circumstance,” Roach replied.
     Plaintiff’s attorney Ken Citron said Cinemark was misinterpreting the scope of premises liability under Colorado’s Premises Liability Act.
     While a shooting like the July 20, 2012, massacre had never happened in a theater before, Citron said, occurrence of a violent event was not the only way to establish a dangerous condition.
     “The premises liability law is clear,” Citron said. “A danger on the premises need not be limited to a violent act. The defendants are arguing too narrow standards of foreseeability.”
     Douglass found that a jury could reasonably find Cinemark at fault, and denied Cinemark’s motion.
     In the first week of the trial, the crux of plaintiffs’ case has come down to whether it would have been reasonable for Cinemark to have anticipated an attack and secured the theater.
     James Holmes murdered 12 people and wounded 70 in the attack during the midnight premier of “The Dark Knight Rises.” He propped open an exit door, armed himself in his car and returned to commit mass murder. The plaintiffs say Cinemark was negligence because the door lacked a silent alarm, and the theater chain failed to hire extra security for the anticipated full house, who could have detected the open door or deterred Holmes, who is spending life in prison.
     The trial is expected to last two more weeks. If the jury unanimously decides Cinemark was partly to blame for the shooting, a new jury will decide how much each victim should be paid.

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