By Mark Esposito, Guest Blogger
Three wounded patrons of the now infamous midnight showing of the latest Batman flick, The Dark Knight Rises, have filed suit against owners of the Aurora 16 movie theater. The negligence suit claims, that despite knowing about the large crowds sure to attend the blockbuster movie premier, movie-house proprietors failed to provide security personnel or door alarm systems that could have prevented the shooter, James Holmes, from unleashing his mayhem.
The plaintiffs, Joshua Nowlan, Denise Traynom and Brandon Axelrod, claim that Cinemark USA Inc. permitted Holmes unfettered access to the theater and allowed him to go in and out of the theater several times undetected to retrieve a “virtual arsenal of weapons, including, but not limited to, one or more fully loaded shotguns, an AR-15 assault rifle, one or more fully loaded, automatic Glock handguns, and several tear gas canisters.” They also allege “The exterior doors to the theater were lacking in any alarm system, interlocking security systems, or any other security or alarm features.”
Nowland was struck in the arm and leg by bullets, and Traynom was shot in the buttocks. Axelrod injured his knee and ankle. The trio who were seated together on that horrible night and managed to stay alive by piling on top of each other. They are now represented by the Denver law firm of Keating, Wagner, Polidori & Free.
Generally, owners of businesses are not liable for the criminal acts occurring on their premises unless they are foreseeable. The law has always presumed that the perpetrator of the harm is responsible in tort for his deeds, and, unless the proprietor has reason to believe that a crime is likely to occur, has no responsibility to his customer to protect him or her. However, in most states, the owner of a business does have the responsibility to keep his premises reasonably secure if he/she is aware that a large crowd is likely.
Various claims have been brought against concert promoters for inadequate security or poor crowd control resulting in harm to patrons. In a famous case in 1979, promoters of the rock band, The Who, paid out millions in settlements to concertgoers in Cincinnati who were injured when crowds rushed the doors and asphyxiated seven teenagers. The practice known as “festival seating” (first come, first served) was regarded as the negligent policy. The City of Cincinnati and even the band were sued, but all agreed the wrongful act of rushing the doors by the crowd precipitated the deaths and injuries.
More recently, the country western band, Sugarland, and its concert promoters were sued this year when a stage collapsed at the 2011 Indiana State Fair following a violent thunderstorm. A gust of wind toppled scaffolding just before the band was to begin playing. Seven young people were killed and 40 were injured. The band contended they had nothing to do with constructing the stage and that the storm was an “Act of God.” However, according to an affidavit of the fair’s executive director, the band twice refused to delay their performance despite knowledge of the impending storm. In March, lawmakers in Indiana voted to exceed the state’s tort cap and pledged $6 Million to the victims. The case against Sugarland is pending.
Should owners of premises be liable for failing to control the criminal or wrongful acts of their patrons? Are they likewise required to foresee “Acts of God’ on their premises?
~Mark Esposito, Guest Blogger