In 2012, James Holmes killed twelve people and injured seventy others in a ten-minute rampage at a screening of “The Dark Knight Rises.” Forty-one victims filed lawsuits some in Federal court and others in State court. According to the state lawsuit, the theater companies failed to hire sufficient security personnel in light of a previous shooting and other violence in the shopping mall where the theater is located. It also cited a lack of surveillance cameras around the property, a faulty emergency exit alarm that failed to go off when the gunman launched his attack through the cinema’s rear door, and the failure of security personnel to intervene once the shooting started. Their claims against the movie theater relied heavily on a warning issued by the Department of Homeland Security just months before the massacre advising theater chains of the possibility of a mass shooting and suggesting they take precautions.
But just before the state trial was about to begin, Arapahoe County District Judge Phillip Douglass,the Colorado judge overseeing the trial, ruled the Homeland Security document inadmissible saying “it might mislead and confuse the jury.” The movie theater’s main argument was that it did not have the legal duty to foresee the mass murderous assault, nor did it have the legal duty to prevent it. So the court’s ruling opened a huge hole in the victims’ case as without a direct warning, the previous incidents at the mall were not enough to force the theater to screen patrons as they came in or to guard against a mass shooter more vigorously. In May of this year, the State Court jury ruled in favor of the defendants and dismissed the lawsuit. At the time, some plaintiffs grumbled that their lawyer, NY mass-tort specialist Marc Bern, dropped the ball. Bern and his firm made millions off of asbestos and 9-11 related claims. He represented twenty seven of the State court plaintiffs. According to the LA Times, his clients complained that he paid one expert $22,000 to testify while the theater paid five experts $500,000 to testify in a case that came down to a battle of experts. One attorney in the State court case who had taken a small settlement to end the matter told the LA Times “A blind guy in a dark alley could have seen it coming” (referring to the State jury verdict).
To make matter worse, Colorado law requires the losing party to pay the winning party’s legal fees. The State court just approved the theater’s $699,000 bill of costs and judgment was entered against the remaining State court plaintiffs in that amount. While it is not likely that the defendant will pursue getting those costs, each plaintiff is individually liable for the whole $699,000 and a judgment of that size will of course affect your credit rating and ability to manage your financial affairs.
The plaintiffs in the Federal case did not fare any better. After an eight hour settlement conference produced a $150,000 settlement offer to be split among forty one plaintiffs. While it was a paltry sum, the Federal judge presiding over the case had warned them that there was pending motion to dismiss in light of the State court verdict and that he was likely to rule in the theater’s favor. Once again, he warned them, Colorado law would apply and they would be liable for attorney’s fees and costs if they lost. All but one plaintiff decided to take the settlement but the deal was off the table unless it was unanimous. The final victim could not be swayed: Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost. The other plaintiffs noted that in addition to the money, the theater chain would make improvements in their security measures to protect its patrons. Still, she decided to reject the settlement offer. The next day, the Federal judge dismissed the case as well. The theater has not yet submitted its Federal bill of costs.
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