Colorado Attack Victims May Have Little Chance in Suits

Family members of those killed and survivors of the shooting at an Aurora, Colorado, movie theater may find it difficult to pursue civil liability claims tied to the attack, which resulted in 12 dead and 58 injured.

The potential for liability would center on the safety and security procedures at the theater where the July 20 shooting took place, or the university where the suspect, James Holmes, allegedly received packages of ammunition, law professors and practicing attorneys said.

Inquiries by plaintiffs’ lawyers are unlikely to lead to successful lawsuits because such cases require some proof that a company or organization acted unreasonably, and knew, or should have known, about the danger posed, said Tom Russell, a University of Denver law professor.

That’s especially difficult to demonstrate when the crime is as horrific as last week’s shooting, was committed by someone who isn’t an employee of the theater, and couldn’t have been predicted, Russell said in an interview.

“In any instance where the crime is so beyond the typical bounds of criminal behavior like this one was, it becomes more difficult to bring the suit,” Russell said. “This is really a random kind of event for which I wouldn’t expect the business to have any kind of tort liability.”

While a court may find Holmes guilty, he is a 24-year-old former student without any apparent assets to pursue in a civil case, Russell said. Since he is an adult, his parents couldn’t be sued because they’re no longer responsible for his behavior.

Death Penalty

Holmes is being held without bond on suspicion of first- degree murder, a charge that can carry the death penalty in Colorado. Holmes was advised of his rights at a state court hearing yesterday in the Denver suburb of Centennial. A hearing to issue formal charges is scheduled for July 30. Holmes hasn’t entered a plea in the case.

The theater rampage was the deadliest shooting in Colorado since the Columbine High School massacre in April 1999 and the worst mass shooting in the U.S. since November 2009, when 13 people were killed at Fort Hood in Texas.

The gunman bought a ticket for “The Dark Knight Rises,” entered the theater and watched the film for a while before leaving, according to police. He went to a white Hyundai outside the building, put on a helmet and ballistic vest, armed himself and returned to the theater, police said.

Questions about security might leave the theater open to liability, said Bob Schuetze, a Boulder, Colorado, attorney who represented the family of an injured Columbine student.

‘Somewhat Questionable’

“It is somewhat questionable how he was able to leave the movie theater out the rear exit, prop it open and return as much as 15 minutes later armed in full battle gear without some alarm going off and someone checking that back door,” Schuetze, of the law firm Schuetze & Gordon LLP, said in a phone interview.

Families of victims and those injured need to consider whether it’s worthwhile to sue, he said.

“Lawsuits are very difficult and the prospect of recovery is going to be a very difficult process,” Schuetze said. “The injured are facing tremendous amounts of medical bills and potentially long-term disability and financial losses. They have to consider whether it’s worthwhile.”

Robert Rabin, a professor at Stanford Law School, said the movie theater owners have an obligation to provide a safe place for patrons. If a suspect entered from the front entrance with weapons showing, there would be a “strong case” for liability, he said.

Unforeseeable Actions

In the Aurora shooting, any case against the theater is weak because the actions were unforeseeable, Rabin said. Even if the exit door Holmes used for re-entry was unlocked, “what’s the risk associated with that?” Rabin said. “That someone will get to see the movie for free?”

James Meredith, a spokesman for Cinemark Holdings Inc. (CNK), operator of the Century Aurora 16 movie theater where the shooting took place, didn’t immediately return a call and e-mail messages yesterday after regular business hours seeking comment on possible litigation.

Cinemark said in a July 20 statement that it was “deeply saddened about this tragic incident” and was working closely with police.

A lawsuit against Burbank, California-based Time Warner Inc. (TWX)’s Warner Bros., the studio that made “The Dark Knight Rises,” would be even weaker, Rabin said. The company is protected by its constitutional right to freedom of expression, he said.

‘No Case There’

“Even putting aside the constitutional arguments, to link somehow this movie with his motivation for his act, there’s just no case there,” Rabin said.

Susan Fleishman, a spokeswoman for Time Warner, declined to comment on possible litigation.

Warner Bros. made an unspecified donation to aid surviving victims and families of those who died in the shooting, Fleishman said earlier yesterday.

Authorities found a surveillance video of Holmes picking up 150 pounds of ammunition at a Federal Express outlet in Colorado, said a law enforcement official who wasn’t authorized to speak publicly and requested anonymity. Investigators interviewed a United Parcel Service Inc. driver who said Holmes had 90 packages delivered to his workplace on the University of Colorado medical campus, the official said.

Governmental Immunity

Lawsuits against the university would also face hurdles, said Bill Kowalski, an attorney who represented the Jefferson County school district in the Columbine case.

Under Colorado law, public institutions such as the University of Colorado are protected by governmental immunity unless their actions are willful, Kowalski said. A successful federal claim could be brought against the school if plaintiffs were able to show that the university was deliberately indifferent to a known danger, Kowalski said.

“The school would have had to know what was in the packages or had some reason to ask,” Kowalski said.

University officials said yesterday that the school doesn’t keep track of packages unless they’re certified mail coming to the mail room.

“If they came in by UPS or FedEx, nobody would even know about it,” Don Elliman, the university’s interim chancellor, said during a press conference. “There are thousands of packages that come into this institution every day.”

Package Deliveries

Packages that come from the U.S. Postal Service go through a central mail facility, said Lilly Marks, executive vice chancellor for the Anschutz Medical Campus. Only those delivered by certified mail and requiring a signature are logged and recorded, Marks said.

Elliman and Marks declined to comment on the number of packages Holmes received.

“To the best of our knowledge we did everything we think we should have done,” Elliman said.

Claims might also be filed against people who sold Holmes ammunition, Kowalski said.

“Even though the sale is legal, it’s possible you can get someone for negligence for not asking the question ‘Why are we sending 6,000 rounds of ammunition to one address?’” Kowalski said.

Stanford’s Rabin disagreed, saying that a case for civil liability would require a regulatory violation, which so far hasn’t been proven.

Victims who decide to sue could be in for a long wait as civil claims might take as much as five years to resolve, Kowalski said. Often such suits have to wait until the criminal trial is over, which prosecutors said is at least a year away.

“I’m not saying these lawsuits would go anywhere but there are a lot of creative plaintiff attorneys out there,” Kowalski said.

The criminal case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).

To contact the reporters on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net; Sophia Pearson in Wilmington, Delaware, at spearson3@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

Press spacebar to pause and continue. Press esc to stop.

Bloomberg reserves the right to remove comments but is under no obligation to do so, or to explain individual moderation decisions.

Please enable JavaScript to view the comments powered by Disqus.