Coyote Blog

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.