Former Municipial Court Judge

Former Assistant District Attny.

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Colorado Attack Victims May Have Little Chance in Suits

Tim Powers

Law Office of Tim Powers


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.

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. This is 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. 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. 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. 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 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.

Security at the Theater

It is somewhat questionable how Holmes 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. Families of victims and those injured need to consider whether it's worthwhile to sue

Lawsuits are very difficult and the prospect of recovery is going to be a very difficult process. 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.

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 could be a "strong case" for liability.

Unforeseeable Actions

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

A lawsuit against Burbank, California-based Time Warner, parent company of Warner Brothers, the studio that made "The Dark Knight Rises," would be even weaker, because the company is protected by its constitutional right to freedom of expression.

No Case

Even putting aside the constitutional arguments, to link somehow this movie with his motivation for his act, there's just no case.

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

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.

Governmental Immunity

Lawsuits against the university would also face hurdles. Under Colorado law, public institutions such as the University of Colorado are protected by governmental immunity unless their actions are willful. 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.

Ammunition Dealer

Claims might also be filed against people who sold Holmes ammunition. 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?' However, to prevail a plaintiff would have to show a regulatory violation.

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

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.