• Mario Nicolais

Who pays when everyone loses?

The latest chapter in the Aurora theater shooting didn’t include the man who injured and murdered so many innocent people just over four years ago. Instead, it pitted those left behind against one another: the scarred victims and families of his crazed depravity against the company that owned the theater he chose for his crimes. The end result, however, seemed familiar.


Everybody lost. Again.


After lawsuits brought by family and survivors failed on the merits, Colorado Rules of Civil Procedure mandated they repay Cinemark Theaters for nearly $700,000 in legal costs accrued defending the case. Only after obtaining full releases from all plaintiffs did Cinemark end efforts to collect.


The cases started when the plaintiffs sued Cinemark in both state and federal court, claiming the chain failed to provide appropriate safety precautions including alarms on doors and additional security guards. The lawsuits asserted that these deficiencies created an environment where many more people were killed or injured than would or should have been. The cases were a long shot from the beginning.


Of course, facing enormous liabilities in the millions many times over, Cinemark took no chances. It hired teams of attorneys, engaged in exhaustive studies, and prepared multiple experts to testify on its behalf. Even spending hundreds of thousands of dollars on costs — not including the actual attorney fees which likely ran into the millions — paled in comparison to the potential liability a jury may have imposed.


In the end, the investment in a robust legal strategy led to court decisions in Cinemark’s favor. Tragically based on pre-existing case law surrounding another of Colorado’s infamous mass shootings, at Columbine High School, federal Judge Brooke Jackson dismissed the federal lawsuits. While the Cinemark’s deficiencies may have been a contributing factor to the scope of tragedy, the killer’s “actions were the predominant cause of the plaintiffs’ losses.”


Judge Jackson’s ruling only put into legal parlance what seemed evident from the beginning. The endless horror from that July night emanated from only one man. And the closure to be derived from seeing him serve a life in prison will never satiate the void left in his wake.


I don’t blame the people who brought these lawsuits. I can’t imagine anyone does. They are the surviving victims burdened with a lifetime in pain, both physical and emotional, alternately dulled and excruciating. Striking out at anyone who plausibly could have limited that fate is a reaction everyone can empathize with.


But I can’t blame Cinemark for its legal positions, either. Cinemark did not kill or harm the people in that theater. None of its employees pulled the trigger. Faced with enormous and financially devastating liabilities, all due to the actions of a madman beyond its control, Cinemark had little choice but a vigorous defense. That included its demand for costs.


In fact, under Colorado Rules of Civil Procedure Rule 54, costs other than attorney’s fees “shall be allowed as of course to the prevailing party.” Federal Rule 54 is substantially similar. Consequently, after winning dismissal, Cinemark would be entitled to the award by right. Of course, in this case the legal rule seemed particularly unfair. It imposed more burden on people already bearing more than anyone ever should. Consequently, by winning the award, Cinemark lost, too. While likely necessary as a legal strategy to keep the case from dragging on in courts of appeal for years, by refusing to waive the right to collect, Cinemark donned the mantle of cold, heartless corporation interested in only its bottom line.


And, in the end, everyone loses. And everyone pays.


Read this column from the Colorado Statesman online in ColoradoPoliticis.com.

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