DENVER (CN) - A federal magistrate recommended dismissal of seven wrongful-death claims against the owner of the Aurora, Colo. movie theater where a gunman killed 12 people last year, though he said premises liability claims should survive.
U.S. Magistrate Judge Michael Hegarty recommended dismissal of seven claims involving 13 plaintiffs. Hegarty agreed with arguments from Cinemark's lawyers that the Colorado Premises Liability Act "is the exclusive remedy for damages against landowners," rendering the victims' other claims for negligence and wrongful death moot.
James Holmes is charged with killing 12 people and wounding 70 last July at the midnight premier of "The Dark Knight Rises."
Victims and their families have filed a number of lawsuits
against Cinemark USA, the owner of the Century Aurora 16 theater in Aurora. They claim the theater's poor security allowed the gunman to attack the crowd unimpeded.
Cinemark sought dismissal
of the claims in September, claiming that it could not be held liable for its failure to anticipate "the criminal equivalent of a meteor falling out of the sky."
Judge Hegarty recommended that Cinemark's motions be granted in part, agreeing that the Colorado Premises Liability Act trumped the other claims.
Hegarty wrote: "The Colorado Supreme Court has made clear, and other courts have agreed, that the CPLA has abrogated all common law torts against landowners in Colorado. ... Therefore, so long as a person alleges injury that occurred on the property of another and arose out of a condition of the property or by activities conducted on the property, the claim must be brought solely under the CPLA.
"Plaintiffs argue that their claims for failure to train employees to monitor the premises and respond to emergencies may not arise against defendant in its role as a 'landowner.' However, courts in Colorado have determined that the CPLA abrogates claims of negligent training, supervision and retention when the claims relate to conditions of or activities occurring on the property."
But Hegarty suggested that the victims' premises liability claims were valid.
"Plaintiffs allege that, prior to the mass shooting at issue here, defendant had information of previous criminal activity, including assaults, robberies and a gang shooting, that occurred at or near the theater and, based upon such information, hired off-duty law enforcement officers from the City of Aurora Police Department to be present on Friday and Saturday nights when the theater typically was crowded. Plaintiffs further allege that the exterior theater doors lacked alarms, monitoring and interlocking security systems, and that no security personnel were on duty during the incident in question. These allegations alone plausibly support a claim that defendant knew or should have known that a crime may occur due to dangers at or near the premises during crowded periods. However, the extent of defendant's knowledge in this case has yet to be explored. Discovery may reveal that other more serious crimes had occurred at or near the theater and that defendant had knowledge of such crimes. Further, as the Court noted at the hearing, discovery might show that defendant had knowledge of and/or concern for the numerous mass shootings that had taken place higher duty of care to its patrons, or 'invitees,' ... and the extent of its knowledge of such duty should be explored."
Hegarty's recommendation applies to seven lawsuits, filed by Denise Traynom and Brandon Axelrod; Joshua Nowlan; Dion Rosborough, Ryan Lumba, Tony Briscoe, Jon Boik and Louis Durand; Jerri Jackson; Gregory and Rena Medek; Theresa Hoover; and Ian Sullivan. Each complaint named Cinemark USA Inc. as sole defendant.
Attorneys for the victims and Cinemark have two weeks to dispute Hegarty's findings, at which point the recommendation will be referred to U.S. District Judge Brooke Jackson for approval.