CENTENNIAL, Colo. — The eight-person jury has been seated in the civil trial against Cinemark USA, the company that operates the Aurora, Colo., theater where a gunman killed 12 people and wounded 70 others during a July 2012 rampage.
How this case and others are decided could have a broad impact on business security.
More than two dozen surviving victims of the shooting and families of people killed in the attack have sued Cinemark USA, the theaters unit of Cinemark Holdings Inc., arguing the company could have done more to prevent the attack.
In the civil case in state court, 28 victims and their families say Cinemark should have had armed guards at the packed opening of the Batman film The Dark Knight Rises and alarms that would have sounded when James Holmes slipped into the darkened auditorium through an emergency exit and opened fire, killing 12.
The families, some of whom filled the first rows of the courtroom, say the theater company knew the midnight blockbuster would attract at least 1,000 people and should have had guards patrolling the parking lot, where they might have seen Holmes suiting up in head-to-toe body armor in his car. The lawsuit says theater employees failed to check doors, lacked closed-circuit television cameras that would have allowed them to spot trouble and did not intervene as victims lay wounded and dying in the aisles.
Theaters across the country had extra security for the July 20, 2012, premiere, and the Century 16 theater in Aurora typically had guards Friday, Saturday and Sunday nights, said New York attorney Marc Bern, who is representing 27 of the families. The premiere fell on a Thursday.
“We believe if these precautions had been in place, the shooting would have been deterred and prevented,” he said.
Victims of the deadly shooting can’t show jurors a federal security memo, dated months before the attack, warning theaters that they could be targeted by international terrorists, a judge ruled Monday.
That dealt a blow to the case against Cinemark, which victims argue should be held accountable for not doing more to prevent Holmes' rampage. The victims argued Cinemark never shared the U.S. Department of Homeland Security memo with theater managers, failing to put them on notice to bolster security.
Legal expert Scott Robinson told KUSA-TV in Denver that "prior to the shooting itself, in July of 2012, there were at least two prior theater incidents, one in Somalia, one in Canada. The jury will have to decide, ultimately, whether Cinemark took reasonable steps to protect its patrons."
Robinson says Cinemark is going to call the attack "utterly unanticipated."
"That no one could have foreseen an attack as simply crazy as this one," Robinson said.
Jurors will have to weigh whether Cinemark or the shooter, who avoided the death penalty but will spend the life in prison, bears more responsibility for the attack.
This means if the jury decides if the shooter was 95% responsible, and Cinemark was only 5% responsible, that Cinemark will only have to pay 5% of the damages awarded.
"The plaintiffs would have to overcome the reluctance of jurors to find a business owner at fault when there were not a lot of prior incidents to give them notice," Robinson said. "And the theater chain has to overcome prior notice by Homeland Security and the incredibly horrendous injuries and deaths caused by [the shooter], which the plaintiffs argue, could have been prevented."
Cinemark says it could not have foreseen or prevented the attack. If anyone is to blame, it’s Holmes’ University of Colorado psychiatrist, to whom he confessed his homicidal thoughts, the company argues.
The Cinemark trial comes nearly nine months after Holmes was sentenced to life in prison for the shooting, in which more than 70 other people were hurt.
It’s the first trial to result from several lawsuits stemming from the attack. At least 40 other victims have signed onto a similar suit against Cinemark that’s slated for trial in federal court in July. Another lawsuit accusing University of Colorado officials and Holmes’ psychiatrist of not doing enough to prevent the attack is on hold pending the other suits.
Prosecutors sought the death penalty against Holmes, who pleaded not guilty by reason of insanity. After an emotionally grueling four-month trial, Holmes was convicted of 165 counts and sentenced in August to life in prison without parole because jurors failed to unanimously agree that he should die for his crimes.
In the civil case, plaintiff’s attorneys twice scheduled depositions of Holmes, hoping to interview him about his plans for the shooting and why he targeted the theater. But the depositions were canceled because Holmes was transferred to different prisons, first to another location within Colorado and then to an out-of-state prison that officials have repeatedly refused to reveal.
Without Holmes’ testimony, attorneys will rely on the spiral notebook in which he detailed elaborate plans for the killings, including lists of weapons to buy and diagrams showing which auditoriums in the theater complex would allow for the most casualties. Holmes marked exit doors, evaluated his own visibility and even located the best parking spots and determined how quickly police would arrive.
Holmes entered the theater and sat in the front by himself. About 15 minutes into the film, he left through an emergency exit that he had propped open. Holmes soon re-entered, stood before the crowd of more than 400, threw gas canisters and opened fire with a shotgun, assault rifle and semi-automatic pistol.
Six jurors and two alternates — three men and five women — were seated Monday afternoon in what is expected to be a two-week trial that will take place in the same Arapahoe County courtroom where the shooter's criminal trial was held one year ago.
Opening statements are slated to start at 8:30 a.m. MT Tuesday.
Contributing: Denver Business Journal and The Associated Press. Follow Allison Sylte on Twitter: @AllisonSylte
