Thanks Popehat, for Throwing Cold Water on My Outrage

I read this in my feed today, and was all ready to vent some outrage at how we business owners were screwed over by the tort system

The owner of the Aurora movie theater that was the site of a deadly 2012 attack could have reasonably enough foreseen the danger of such an attack to be held liable for it, a federal judge ruled Friday.

Noting "the grim history of mass shootings and mass killings that have occurred in more recent times," U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack. Jackson's ruling allows 20 lawsuits filed by survivors of the attack or relatives of those killed to proceed toward trial.

"Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, 'sitting ducks,' " Jackson wrote.

The about 6 spots down in my feed reader I found this from Ken White at Popehat:

The court said:

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. I reiterate that this Court is in no way holding 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.

In other words, the court did not find that the shooting was foreseeable. The court found that if a jury believed the plaintiffs' experts and evidence, the jury could conceivably find that the shooting was foreseeable.

Wow, thanks for jamming a stick in to the spokes of my accelerating rage bicycle.  Ken seems to be making an implicit argument here for carefully understanding the facts first before haring off in a fever of righteousness over an inaccurate and perhaps purposefully inflammatory headline.  Boy, I don't think he understands the Internet at all.

PS-  I must agree with one of Ken's commenters -- while this may be absolutely correct as a matter of law, there is something wrong with a legal system that is going to subject Cinemark to a jury decision on whether the actions of a madman, perpetrating a crime that was by all measures unprecedented, were "foreseeable".  There has got to be some safe harbor against being responsible for bad outcomes that occur in the general vicinity of someone with deep pockets.  Juries strike me as a terrible vehicle for making this kind of determination.  Their decision is more likely to be made based on how sympathetic the plaintiff is and how rich and faceless the defendant corporation is, and not whether it is really justice to hammer a movie theater for not being prepared for crazed shooters.


  1. Ken:

    If it is any comfort, you're still completely screwed, because the cost of going to trial will ruin you even if you win.

    Hope that helps.

  2. Seattle Steve:

    Nothing worse than someone pulling the rug out from under a good case of righteous indignation. I'm outraged!

  3. mharris717:

    Really glad to see this post. The "give me back my rage" angle is funny, but the interesting angle to me is that the courts are not the arbiter of what is right and what is wrong. They are supposed to operate within the confines of the law. More generally, the government not banning something doesn't mean the government endorses it.

    This is something we often harp on, for example when Team Pepsi screams how the Supreme Court hates women because blah blah blah

  4. lelnet:

    I don't know. I'd kind of like to see a decision on the question of whether, by prohibiting law-abiding customers from carrying weapons that applicable state and federal law deem them competent to carry in public, the theater owners actually exacerbated the ordinary risk.

    Don't know if that's an argument that these plaintiffs plan to make, and if you read the text of the judge's decision it's pretty clear that he doesn't think they have much hope of prevailing, but nevertheless it would be a salutary outcome if it were to happen.

  5. Q46:

    " There has got to be some safe harbor against being responsible for bad outcomes that occur in the general vicinity of someone with deep pockets. "

    Yes indeed. It's called 'a jury'.

    That is why we have them, citizen-centric justice, pure democracy where it is people, not lawyers, not politicians, not bureaucrats who decide.

    The most beautiful thing the British gave the World.

    Who else would you like to decide whether plaintiff is nuts and the defendant liable... who?

  6. Gil G:

    By that reasoning the owners could not have stopped Holmes from entering.

  7. Bart Hall:

    I'm not so sure the cinema should be let off the hook entirely, because the perp chose the one theatre posting "No Guns" signs. There were others closer to the perp's home than the one attacked, but he could not know there would not be people shooting back. It would, at the least, make for an interesting litigation since so many of the places attacked by these "deranged" shooters are self-proclaimed "Gun Free" zones, like schools. Perhaps that is the negligent act, and I believe there might just be enough of these incidents to convince a jury -- yes, a jury, dammit -- that the "Gun Free" zone was in essence an attractive nuisance. Counter-argue that people knew that and chose to patronize the venue regardless. As I say ... it would be a fun litigation, even though the topic is deadly serious.

  8. TeleprompterOTUS:

    The judge is punting. The theater should appeal now and see if a higher court has the nads to find for the theater.

  9. Everyman:

    Except that it's not an appealable order.

  10. dmon:

    The very fact that they didn't immediately slap down this line of reasoning means that the camel's nose is under the tent flap. Suppose, as an example, a movie theatre is showing a (hypothetical) dramatization of Rushdie's "The Satanic Verses". Somebody decides to redeem their 72 virgin voucher and blows up the theatre. Relatives of the victims can now sue the theatre chain, the parking lot operators, the Starbucks next door, whoever, and the case is in the hands of a jury. In reality, what has happened is that the court has imposed a very effective censorship on the dissemination of any material that could reasonably be argued to inflame anybody anywhere to violence. Warren is always pointing to the health care Trojan horse - this is the political speech Trojan horse. Call it the Murderer's Veto.

  11. Vitaeus:

    My thoughts as well, civil versus criminal damages should be the norm. Too much behavior is criminalized versus being held responsible.

  12. markm:

    They could not _stop_ him or any other man with a gun from entering in any case. They could only _ask_ gunmen not to enter - which is what their sign does - but had no way to enforce it against anyone who was either carrying concealed so they would not know about the gun, or carrying openly and ready to shoot anyone in the way.

  13. markm:

    Further contrary to the article, even if the theater is found liable for not hiring security, hiring security to guard your business is not the answer. Some security guards will turn out to be criminals, themselves, and there's no question that the business will be liable for them. Unless you have better screening for low-wage security guards than the average police department has for cops, I think that inviting either "civilian" armed guards or off-duty cops to stay in your business will be more dangerous to your customers than leaving them undefended against the very unlikely chance of a nutcase picking your place for mass murder. Guards are also useful for deterring robberies in businesses that are especially prone to them, but AFAIK robberies of movie theaters are quite rare.

    As others already pointed out, the theater's no-guns sign actually increased the danger. The trouble is that liability for a third party who disarmed a victim is pretty much a new legal theory. I know of just one, quite recent, case that found for the plaintiff under that theory: several cops ordered a man to drop a stick he was carrying for defense, and then just watched while another man beat him to death with a metal baseball bat. The trial court found the cops responsible, but this was one court in one city, and the case has not gone up to higher courts yet.

  14. herdgadfly:

    This post and the Warren Meyer's interaction with the nutcases over at Pope Hat raises an issue that many loyal Coyote Blog readers find disconcerting. In the five or more years that I have been reading this blog, I cannot recall a single time when an exchange occurred between Warren and a commenting reader inside these blog comments. I have, however, seen posts where Coyote's disagreement with an outside blog's reaction blossoms into a followup piece by our host.

    I would suggest that the Warren's apparent policy not to directly respond to disagreements by readers cannot be considered even treatment when follow-up defenses against outside antagonists occur with some regularity. I am not asking to become the first dissatisfied blog comment-maker to receive a response, but I think an explanation of the rules here would be helpful.

  15. BillRobelen:

    Yes, a denial of summary judgement is ordinarily an appeabable order.

  16. Tarpey:

    Foreseeable - in the absolute sense, no,
    Highly likely - yes.
    The theater was a "gun free zone", so a shooter could be relatively confident that he would not be stopped.When was the last time any one shot up a police station?

  17. Tarpey:

    Although I agree with you on the attacker's choice, your last sentence is simply "ca-ching" to lawyers-the win even if the party the represent loses.