Mass Murder Theater|Liability Claims Survive

     DENVER (CN) – The theater where accused mass murderer James Holmes is accused of killing a dozen people during a Batman movie must face premises liability claims for the shooting, a federal judge ruled.
     Holmes has pleaded not guilty by reason of insanity to more than 160 felony charges, including murder, in the July 20, 2012 shooting at the Century Aurora 16 theater during a midnight premier of “Batman: The Dark Knight Rises.” Twelve people were killed and dozens were wounded.
     Two months after the shooting, several victims and their families filed a number of civil lawsuits against theater-owner Cinemark USA, seeking damages for wrongful death and negligence.
     U.S. District Judge R. Brooke Jackson ruled in April 2013 that victims could pursue claims for premises liability, but not for wrongful death and negligence, because no one at the theater could anticipate that a shooting of that magnitude could happen.
     Cinemark then sought summary judgment this year, but Jackson ruled on Aug. 15 this year that the victims have come up with more evidence to support their claims.
     “This is not the first time in the case that this question has been presented to me,” Jackson wrote. “Early on the defendants filed a motion to dismiss the case on the legal ground that the complaints failed to state a claim on which relief could be granted. On April 17, 2013, the Court, agreeing with a recommendation by the United State Magistrate Judge Michael E. Hegarty, denied that motion. At that stage of the case the court was required to accept the plaintiffs’ allegations of fact as true and having done so, I determined that the plaintiffs had alleged enough to avoid immediate dismissal. Since that time the parties, primarily the plaintiffs, have conducted extensive pre-trial discovery in an effort to develop more information about what the defendants knew about security risks and when they knew it.”
     Jackson found one question which prevents a grant of summary judgment.
     “Although the briefing of the motion for summary judgment has been extensive, the sole question posed by the motion can be stated simply: is there a genuine dispute of fact as to whether Cinemark knew or should have known of the danger faced by the patrons in Auditorium 9 on July 20, 2012,” Jackson wrote.
     Jackson listed examples of the evidence the victims’ attorneys used to show that Cinemark could have known about the potential danger. They include a report prepared by a security company that Cinemark hired, which suggested that managers prepare for an active shooting situation, and an example of a shooting in a Loews theater in 2006, where a patron stood up in the back of a theater and randomly fired a handgun.
     However, Jackson pointed out that this evidence only helps the victims claim survive a summary judgment motion.
     “None of these facts, even when taken together, compels the conclusion that Cinemark knew or should have known of the danger that the patrons of Auditorium 9 faced,” Jackson wrote. “I reiterate that this court is in no way holdings as a matter of law that Cinemark should have known of the danger of someone entering one of its theaters through the back door and randomly shooting innocent patrons. I hold only that a court cannot grant summary judgment on what is normally a question of fact under Colorado law unless the facts so overwhelmingly and inarguably point in Cinemark’s favor that it cannot be said that a reasonable jury could possibly side with the plaintiffs on that question. I am not convinced. Plaintiffs have come forward with enough – and it does not have to be more than just enough – to show that there is a genuine dispute of material fact. A genuine fact dispute must be resolved by the trier of fact, not by a court’s granting summary judgment. Whether the jury will resolve this issue in the plaintiffs’ favor is a different matter entirely.”
     The case is set for trial in February 2015.
     The plaintiffs are represented by William Keating in Denver.
     Century Theaters is represented by Amanda Wiley, with Taylor Anderson, in Denver.

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