I have long been a critic of state and federal rules imposing costs on losing parties or those who turn down settlement offers, particularly when courts have little or no authority to waive costs. We previously discussed how a federal court ordering the family of a fallen soldier to pay $16,000 to the Westboro Baptist Church, an extremist organization that pickets the funerals of soldiers and Marines. Now the victims of the massacre at the Century Aurora 16 multiplex theater have been hit with a $700,000 bill to pay the defendant’s costs after losing their lawsuit. It is a variation of the “English Rule” where loser pays and something that I believe deters lawsuits against corporations and powerful individuals.
The problem arose when District Judge R. Brooke Jackson told the parties that he was prepared to rule for the theater during a conference call and urged the plaintiffs to settle with Cinemark within the next 24 hours. I do not disagree with the judge on the question of liability. There is only so much that a theater can do when faced with a madman bent on shooting people. James Holmes killed 12 people and injured 70 others in a 10-minute rampage at a screening of “The Dark Knight Rises.”
The theater offered $150,000 for all of the parties — clearly a low amount to be divided among dozens of victims and their families. However, the threat was that, if they did not settle, they could be hit with costs as a losing party. Colorado law imposes the costs on the losers. A deal was drafted for the three most seriously wounded to receive $30,000 each while the remaining 38 would split $60,000. However, one plaintiff balked and said that the settlement was insulting and too little. Plaintiffs scrambled to leave the case before the final order to avoid sanctions. Some 37 withdrew but 4 did not. That left them with a massive bill for costs.
Once again, I have always questioned the liability against the theater, but few people will sue such large corporations if they could be saddled with such crushing costs. We have Rule 11 to sanction frivolous or vexatious filings. This was not a frivolous case, even though I agree with the theater on the merits. Imposing prohibitive costs in cases of this kind can have a chilling effect on litigants in pursuing valid claims in my view. I would prefer a more balanced approach that gives greater authority to the courts. I am not against imposing costs in some cases but the blanket rules in cases like this one are too draconian in my view.
What do you think?
Found the answer to why they felt the theatre was at fault:
http://www.westword.com/news/aurora-theater-shooting-civil-trial-jury-finds-century-16-owner-not-liable-7888233
“Marc Bern, the attorney for the plaintiffs, had argued that Cinemark, owner of the theater, was negligent for not placing a silent alarm on the back door that killer James Holmes accessed (doing so would have cost around $800) or arranging for armed security or perimeter patrols for such a high-profile event — the midnight-screening debut of the much-anticipated film The Dark Knight Rises.
Kevin Taylor, Cinemark’s lawyer, countered that the company couldn’t have anticipated Holmes’s horrific assault, maintaining that “never in the history of this media had anyone committed mass murder.” He also said that Holmes was so committed to his deadly plan that none of the actions cited by Bern would have stopped him.
In the end, the jury appears to have agreed with Taylor’s statement that “this case is about what James Holmes did.””
A silent alarm on the back door would have simply called a teenage usher, to go see what kids were sneaking in. Would have had no protective effect. And armed guards are too expensive at a movie theatre.
I agree with the jury on this one, but believe the theatre should forego costs.
And I have another question for the lawyers out there on accessibility of justice.
You cannot have justice if you are legally wronged, unless you have the funds to pay for attorneys, or unless your cause can attract pro bono work. The lawyers, and their staff, need to be paid. And there are many times where the case can drag on so long, the fees will eat away, and can even surpass, any redress you are owed.
So how do we fix this? Justice should not be for the rich. The poor and middle class deserve equal protection under the law, too. But they don’t get it if it exceeds Small Claims Court. And Legal Aid is no help at all. I do not agree with awarding costs to every single victor. But perhaps the court system could be more open to doing so with egregious cases. Any other ideas?
Lawyers take cases on contingency all the time. They also have a lot of uncollectable receivables they have to write down.
Does anyone know what the reasoning was behind their case? Why did they blame the theatre? Did they believe the theatre should have provided armed guards and metal detectors? Was it the access through the back door? The gun-free-zone posting that made it a target?
The theatre was not responsible for the actions of a madman.
Normally, if the lawsuit was frivolous, I would agree with the victor being awarded costs. However, I do not agree with granting winners in all cases costs, as there are many times that a lawsuit has merit but they were unable to prove their case. Or sometimes you just have bad luck with a judge. In this particular case, these are grieving family members. As has been pointed out above, if they were willing to absorb their costs with the settlement offer, they should absorb their costs after winning, too.
And a final note on “gun-free-zones”. These are invariably the targets that mass shooters seek out, because logically they will be guaranteed soft targets, unable to stop them. The only time gun free zones actually are safe, is if there are metal detectors, armed guards searching people, as well as no easy drive by street access or back doors. (Such as court houses.) Otherwise, obviously, the only people who are going to obey a simple little painted sign or printed notice are the law abiding people you wouldn’t have to worry about anyway.
Karen – the costs to the defendant in this case are $700,000.00. Should they just absorb this as the cost of doing business and raise ticket prices to get the money back? They offered plaintiffs a reasonable sum considering they were not liable. There is no reason they should now not be compensated for their costs.
The defendants went after Cinemark because it had the deep pockets, not because they were really liable.
The plaintiffs’ lawyers went after Cinemark. Cinemark was the defendant.
Schulte, could it be that the defendants are planning an appeal?
Why do you repeatedly question the liability of the theater, wholly without any analysis of the question of liability, but still assert that it was not a frivolous suit? Why not provide an analysis of the theories of liability?
I do not understand why the 4 hung in after the judge said he was going to rule against them. Having rolled the die to stay, they deserve what they got. The reason the costs are so high is because of the number of plaintiffs, all of whom had to be deposed. That does not come free. They have their own legal costs to pay, too.
Given the unspeakable sorrow and loss for all of the defendants in this case, the theater should just drop its claim and do the right thing — swallow its legal costs. It was willing to swallow the legal costs before its insulting offer was rejected, and it should be willing to swallow the costs now, too.
The theater is making a huge PR mistake in what is obvious retaliation for not accepting its offer. It’s a given that the plaintiff’s law firm has no scruples, but that doesn’t mean the theater shouldn’t either.
This is just another example of a broken legal system. Parents have lost their children, then along comes lawyers with buckets of salt to make life more miserable for them.
The families of the victims are not presumed to be experts in the law and are following the advice of their attorneys. If those attorneys lose the case then they should be on the hook for the costs and not their clients. Chill the attorneys and not the victims.
This lawsuit was not just an attempt to recover an undeserved monetary judgement. It was similar to a ‘SLAPP Suit’, to force businesses to adopt ‘Gun-Free-Zone’ policies, or install screening devices.
Behind the scenes, various victim disarmament zealots encouraged plaintiffs, making them believe their lawsuit was not only in the public interest, but that they would prevail without question.
THOSE gun-control groups should help pay the judgement. Will they? Crickets …
Unfortunately it is a double edged sword. Suing someone is, for some people and institutions, a weapon that gives them the upper hand regardless of the merit of the circumstances. To sue a larger entity with more financial resources one is at a disadvantage. The essence of the nuisance suit is that it is easier to pay up than to go to court, even if the suit is so frivolous that one would win. The costly legal mechanics of proving one’s position is one obstacle to the law.
Many years ago my partner and I were sued by a husband/wife team of lawyers. Working for the condo board we had increased the condo board’s settlement with the insurance company from $350k to $875k for damages after the Northridge earthquake in LA. We were heroes to everyone except one condo who sued everyone: contractor, engineers, us, architect, and even the condo board. Their lawsuit was so bogus it was criminal. However everyone settled as it would have cost more to hire attorneys and fight it out against these attorneys who could do it for nothing but spite and opportunity. If they could have been held accountable it would have been different. I have seen this sort of extortion happen many times.
Perhaps a separate judicial opinion could be rendered whereas when the law is abused for private gain, when an argument could be made that a lawsuit is nothing more than extortion or taking advantage of a disastrous situation for personal gain, the perpetrator(s) could be nailed to a judicial cross of sorts.
In some locals, bartenders can be held accountable for serving someone who has already had too much to drink. Can we hold lawyers accountable for frivolous lawsuits or lawsuits that have no merit?
This was a lawsuit that had no merit. None. The relatives of dead guys need to pay up for all the damages that they have caused. The lawyers need to be on the hook too. Cases like this need to be thrown out of court early on. A motion to dismiss for failure to state a claim for which relief can be granted is a motion which needs to be employed early and often in lame cases like this. I want to sue Planet Earth because of low tides.
Reblogged this on Matthews' Blog.
Maybe if the law firm representing the remaining 4 plaintiffs in this case was on the hook as well, I’m assuming they are not, possibly this suit would have never happened.
They win if you win, they lose if you lose.
That seems fair, doesn’t it?
re: topic at hand
I don’t understand why the theater could be sued for an attack over which it had no control. But JT’s point about the “chilling effect” for those who sue powerful corporations is also a concern.
@Ralph
I enjoy Alex Jones as well – some of this stuff is way out there but your point that he covers news that the MSM won’t is spot on. Increasingly I am drawn to alt right and alt left reporting to try to piece together what’s going on both nationally and internationally.
BTW: did you see his recent plea to Hillary not to kill him? Priceless IMO
Yes, Autumn, I saw Jones’s “don’t kill me” video, and how he doesn’t want to be part of the “Clinton body count.” Of course, a lot of what Jones does is entertainment. And I think Jones is quite safe from any reprisals by Establishment forces because he simply poses no real threat to any of their operatives. Although Jones will cover stories that the mainstream media won’t, he’s still reluctant to cover stories that cut against his particular agenda.
And that brings me to your other point, and a good one — that you have to read your “news” and information from a wide variety of sources to get an understanding of what’s really happening. Each source has its own biases and predilections, and you have to take those into account as you “piece together what’s going on both nationally and internationally,” as you put it. It’s not a passive process. Unfortunately, most people, I think, tend to take the passive approach and simply tune into the specific “channels” that best confirm their own world outlook.
Reblogged this on Scoop Feed.
The plaintiffs should watch movies on tv from now on. No theaters. This is coming to a theater near you.
If anyone wonders why Donald Trump appeared on Alex Jones’s show, it’s because Jones has a bit more courage than most Presstitutes in the Media, and he will sometimes cover the stories that the mainstream media avoids like the plague, especially those that conflict with the mainstream media’s Establishment propaganda. Even Jonathan Turley seems afraid to cover a story involving an institution near and dear to him: George Washington University.
So, as a pubic service, I will help to spread the news that almost nobody else will cover: George Washington University hires Islamic Terrorist to an Important Administrative Post. I guess that part of his job will entail recruiting GW’s students into the various Islamic Terrorist Front Organizations.
https://www.youtube.com/watch?v=FczHGB3MHGY
Listening to some of the students, you can clearly and readily see that those who oppose the hiring of the Islamic Terrorist are articulate and intelligent; while those who have no opinion or have no problem with the hiring appear brain-dead and passive.
I can not imagine any angle in which the theater is civilly responsible for this mass murder attack w/lethal weapons.
Let this legal bill serve as a lesson to future persons attempting to fabricate blame where none exists. Is there chance their homeowner’s policy might cover it?
Are you high? Good luck cinemark, I will never spend a dollar there in my life again. Hope that lawyer can help you with your chapter 11 filing you’ll be needed. Do you not see how it’s bad for business?
What’s ‘bad for business’? Asking your costs to be defrayed by people who did not have the sense to settle the case?