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?
Source: CNN
~Mark Esposito, Guest Blogger
Joshua Nowlan struck in the arm and leg by bullets
Denise Traynom shot in the buttocks
Brandon 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
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sounds like those two brave little fellows couldn’t get underneath the girl fast enough.
@blhlls: In all of the places you mention, and in most retail establishments, movement and sight are not purposely restricted in order to take part. A theater, stadium, concert hall or anything designed to house a large passive crowd for a performance will create an expected level of impaired mobility that is not created in a restaurant, fast food place, mall, or department store. In this case (unlike, for example, a band recital), there is also a factor of expected sight and hearing impairment to consider. Theaters are purposely dark to enhance the visual experience, and loud to drown out audience noise, so that evil may be afoot right behind you without you knowing it.
That is the “sitting duck” difference you overlook; theaters purposely strive to create an immersive imaginative experience in which your awareness of your actual surroundings are much diminished. That is not the case for a restaurant or mall or department store or school, they want you alert and paying attention to what is around you, not in a dream state.
David B, there was a case in Tennessee years back. A guy sued Satan for tempting him and so forth. The guy was a paranoid. The judge was wise; he instructed his clerk to treat the litigant very respectfully and seriously. He wrote an opinion saying that the plaintiff was RIGHT but that the court could not do anything to Satan because (with many citations) of diplomatic immunity; Satan was the Prince of Hades (citations from literature, opera even) and therefore was immune to suit.
It satisfied the plaintiff who stopped suing people.
We have unmonitored entrances and exits in all kinds of businesses and other public places, including restaurants, fast food places, malls, department stores, schools, etc. I don’t see why this theatre should be liable for it in the absence of some specific knowledge of a present threat.
🙂 … 🙁 … 🙂 I am about to press post on this, I hope what shows up is a smiley, a frown, then a smiley, … I’m about to find out.
Does “Act of God” imply purposely done by God, if so can God be sued.
We humans can not reason the reason behind the occurrence so we then consign reason to the unknowable reason of a God.
Hubris thy adherents are humanity. We build Cathedrals to ourselves and claim to worship God, claim to know a Gods mind, claim justice in his name, kill for his “purpose” and proudly walk and talk the path of individual hubric righteousness. The path is crowded with Gods and they have been knocking each other off the path since man created them.
I may have gotten off topic, but this point came to my mind. How can “Act of God” be an accepted legal term in a secular society. If a meteor hurling through the universe hits you, this is an act of nature. An “Act of Hubris” is consigning a reason to it.
PS. To Mike Spindell,
Maybe we’re only “A Spawn in the Game” (and very minor spawn at that)
@Darren: That isn’t how it worked, the shooter was not going in and out through the lobby, but through the exit door into the parking lot, which normally automatically locks behind you, but which he propped open. Security would not let anybody bring a duffel bag full of anything into the theater from the main entrance.
As for whether it could be reasonably planned for, the answer is obviously YES, since security already IS present at many theaters. They do that because they anticipate trouble; and almost certainly the owners have all heard about various scenarios of terrorist attacks, and this is not much different. Securing the exit doors, or at least putting alarms on them during the time they are not expected to be in use (while the previews or movie are playing) seems prudent. Guarding against a terrorist attack might have prevented this tragedy, which is not much different.
I would argue how could it be the theater owners had any knowledge this type of event was likely to happen. When was there a mass shooting inside a theater? and is it so common that could be reasonably planned for? For the case of the person going back and forth from the lobby, how could the theater’s staff had anticipated this to be a sign of a future rampage especially despite having to watch all the activity of every one there?
Plus, if a person has already bought a ticket isn’t it permissable to go to and from the theater before the movie for which the ticket was purchased has concluded?
The liability lies with the murderer.
Security alarms would do absolutely zero to deter a person who could just as easily carry a load of weapons and ammo on his or her person. Society cannot be in lockdown mode all the time everywhere. Is the alternative to have a TSA molestation at every grocery store or public event?
These frivolous lawsuits are part of our problem in America today. They only result in limiting our freedoms and hurting businesses.
It think it is great though when states and local communities can come together and help support the victims of tragic events like these.
Business owners should not be held responsible for random acts of violence or natural disasters, it just makes no sense.
No one has called for restrictions on guns as usually happens at some point in these discussions on these subjects. While I usually support these call for regulation, this time I have a new POV.
With the goverment we have and in view of where it is going, I am glad that we can arm ourselves FULLY.
Where can I get hold of a anti-tank weapon and an RPG.
An APC to park in the driveway would also be cool.
Let’s go whole hog. Who’ll be first to get a drone in your neighborhood?
And for those who want the ultimate weapon, read “Press Enter” by John Varley.
Yes, movie theater ushers are becoming very vigilant… Sorry a little off topic, but imagine if all staff were as dedicated to safety and security as this character?
As usaul TonyC gets the brass ring, and without even stretching for it.
We have variant on the LLC scam over here in Sweden. There are lots of guys who have stood as responsible when the house of cards fall. Multiple times. They manage to get by “commerce forbidden” judgements somehow. Of course taking over responsibility for a copany created by another person may be a way around it.
Tony C.,
Read you very interesting posts and tend to agree with the frequent line “jury can sort out”.
To the subject of the thread specifically, I seldom attend movie houses anymore and never go to the extravagances (late night first releases) but the grandkids tell me that getting there early is now a must not only to get a good seat (as always) but to also allow time for the security checks. Bags are now thoroughly checked and guards posted at all the doors which makes leaving for a bathroom or popcorn run rather challenging.
In fact, shortly after the Holmes’ shootings, one of the grand openings was cancelled altogether because the crowds were so large and the theater personnel didn’t think they had enough security to handle the situation.
I don’t know enough about the manner in which these movie grand openings are financed (theater, promotional company, distribution company, etc.) but if the liability issues become too expensive to cover then I would think the extravagances themselves will become a thing of the past.
On the other hand, I am strongly opposed to the practice of vanishing liability; in which a company with a lot to lose, liability wise, hires companies with very little to lose, liability wise, to be 100% liable if something goes wrong.
It is a kind of back-door insurance clause; find or set up one or more LLC that are asset poor and judgment proof (that is not a literal term, it just means if you sue them, they will claim bankruptcy and there is nothing you can do about that), and have them do the works where risk is high (like building a stage, vending food, security).
You might think that is unlikely, but a Limited Liability Company can be set up, operate and then be “zombied” for a total of a few hundred bucks (no employees, no assets, no debt, no operations, no taxes); that means they can be used even on a project-by-project basis.
That becomes another question only a jury can sort out. Whether or not liability was being purposely shifted to the “judgment proof” in order to thwart any possibility of loss due to negligence.
Should owners of premises be liable for failing to control the criminal or wrongful acts of their patrons?
Not in general, but yes, under some circumstances. This is, perhaps, one of them.
The circumstances I am thinking of pertain to activities in which the patrons subject themselves to voluntary restraint or impairment that would interfere with their ability to defend themselves; under such circumstances, I think the owner of the premises assumes partial responsibility for their defense.
Consider a patient in a dentist’s chair, unconscious. Shouldn’t the dentist be required to provide some reasonable amount of security for that paitent and her property? Or can the dentist just leave and run an errand?
When the patient wakes up and realizes her purse and car have been stolen, can the dentist shrug and say, “You really should not leave that kind of stuff just lying around,” ?
Similarly, what responsibility does a clothing store have for ensuring security in the dressing rooms against voyeurism? Does a roller coaster or carnival ride owner, that literally straps his patrons into his machine, have a greater responsibility for their security while they are strapped in?
In a theater, one is purposely crowded and sight-impaired for the experience. More so than in a restaurant or retail store; which is where I think the threshold should be set for “no additional protection responsibility,” If one is is more constrained or impaired than one is in a common retail setting like a mall, store, or grocery, even if that constraint or impairment is entered into voluntarily, I think the owner bears some additional responsibility for protection.
Of course guns could be brought into a Walmart or dress store and patrons could be killed. So the question, which can only be answered by a jury, is this: How much greater is the harm done because of this venue, instead of the typical retail venue? The same thing would be true of a concert setting.
Are they likewise required to foresee ”Acts of God’ on their premises?
Are we calling careless engineering an act of God now? 🙂
We have this thing called “statistics,” and it provides us with “probability distributions.” In particular, one we use frequently in mechanical engineering is called the “extreme value distribution,” that lets us compute based on weather data the likelihood of various meteorological phenomena. That includes worst case thresholds for rainfall, temperature, wind speed, humidity or dryness, down to fairly minute areas, but certainly down to the county level, and down to the day level.
So I think this is another question for a jury to sort out; how unlikely WAS that wind gust, and how bad was the engineering of the tower, and were any precautions at all taken to prevent it from falling into a crowd?
I tend to agree with the band, they thought they were hiring experts to provide them with a venue. If I rent a stadium, I should not be liable for the collapse of the stadium, even if it was built yesterday. But I think the company building the tower is inherently responsible for its stability in typical circumstances. So I don’t know how strong the wind really was, but I think unless it was the strongest wind for that area in the last 50 years, barring actual hurricanes or tornadoes, I am inclined to think the builders were responsible for cut-corner engineering to save money.
An alarm on the door when it’s not closed to prevent people from sneaking in to the theater might have prevented this massacre. Hind sight is 20-20. Why hasen’t this guy been executed? just what the country needs, another nut to feed. Hire a guard at all exits? get ready for higher ticket prices.
I feel sorry for the victims and families…. But, what extra precautions was the owner to exercise here…… Zone of danger…… Cardoza…..
Good point mespo on the Who….
Insurance payments under liability policies are premised on the legal liability of the covered person. No legal liability; no payments to victims. That’s why it matters if the landowner is liable under tort law.
Happens all the time. That’s the reason for homeowners’ insurance too, isn’t it?
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?
Some things are for insurance coverage only … those things outside our sphere of control …