Perhaps the defining feature of crazy people is that they’re unpredictable. Except in Aurora, Colorado, where United States District Court Judge R. Brooke Jackson held that the Cinemark Theater where James Holmes committed “madman’s mass murder” during a midnight screening of the Batman film “The Dark Knight Rises.”
From the Denver Post:
Noting “the grim history of mass shootings and mass killings that have occurred in more recent times,” U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack.
What “grim history” would that be? Are there crazies slaughtering people in theaters all the time? Is it just Batman movies, just midnight screenings, or does Bambi count? Regardless, holding that the theater “could have predicted” the act of a madman is akin to saying they could have predicted a meteor shower or abduction by space aliens. Far more people are harmed by being struck by lightning than by a crazy with a gun, which the judge apparently recognized:
“Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, ‘sitting ducks,’ ” Jackson wrote.
So because it’s never happened before, the likelihood that it was going to happen was sufficiently predictable that the theater should have been prepared for it? Extrapolate that reasoning to all the places where no one has ever been slaughtered by a madman and consider the ramifications.
Judge Jackson’s decision came in response to a motion by Cinemark for summary judgment, seeking a ruling that the Holmes’ killings were not foreseeable, and therefore Cinemark cannot be held liable for failing to do whatever it is the plaintiffs contend they should have done to prevent an occurrence that never happened before anywhere ever.
Consider, if what happened in Aurora, the duty of businesses to be prepared for the act of a one-in-a-million crazy. The biggest growth job in America will be armed guard. Every theater will require its own SWAT team, perhaps a MRAP or Bearcat. Office buildings, parks, skating rinks, pretty much anywhere more than three people gather, could be the next target of a madman. They will all need security, armed with the weapons needed to take out any crazy.
Don’t blame the businesses. They’re just trying to cover their foreseeable obligations. Sure, there is almost no chance, almost no possibility whatsoever, that they will be the target of the next insane shooter, but Judge Jackson says it’s still foreseeable. In fact, that no one has ever shot up a skating rink makes it even more foreseeable, by his rationale.
It’s understandable that the victims and families of the deceased are trying to find some comfort, some recompense, in Aurora. This is not to diminish their loss in any way. They, more than anyone, have suffered at the hands of a madman, and no one went to the movies that night thinking they were risking their lives.
But as sympathetic as we, and the judge, might be toward the victims and families, manufacturing foreseeability out of a void, even less than a void given that the total absence of foreseeability increases foreseeability, creates liability for a wholly unpredictable nightmare.
The ramifications of this holding are fairly clear: every business where people congregate, especially those where no one has ever attacked before, are held to foresee that they may be the target of a madman who might cause mayhem. Either they will be liable for the failure to protect patrons against the unknown killer, or they will be constrained to turn their businesses into armed camps.
This won’t be Ferguson, MO, but the movie theater on Main Street. Any Main Street. Every Main Street.
They’ve already turned schools into combat zones, and that certainly turned out well, right? If there are armed men hanging around with nothing to do, and awaiting the day when a madman arrives to shoot up the place will leave a lot of down time, there is a strong likelihood that the security folks will find some way to use their time. It’s not like you can keep them in a closet awaiting the day that the crazy killer shows up. Maybe making sure patrons aren’t doing things the business prefers they not do, with sniper rifles in hand.
To hold that the mass murder by Holmes was not unforeseeable, as a matter of law, defies the concept of foreseeability. There has to be some reason, some basis, to anticipate that something bad will happen. A theater showing a movie, even a Batman movie at midnight, is not a crazy killer magnet such that Cinemark could have possibly anticipated what would happen.
While it’s true that the only consequence here is that Cinemark will be put on trial, face potential liability for its failure to protect its patrons against a madman like Holmes, this is how the law draws lines between the reasonable and the completely unreasonable expectations on businesses, and hence on society. If a business is held potentially liable for the act of a madman that no one could have possibly anticipated, then businesses are put in an untenable position, and we, too, will be forced to share their liability.
Maybe no theater will prefer to turn their place into an armed camp, but then they will have to find a way to pay for their liability. How does $50 movie tickets sound to you? That’s the alternative to liability.
Yet again, we come face to face with the reality that the law cannot provide a remedy for every horrible thing that mankind can do. Some things are simply unforeseeable, even if that means that victims will have no one to turn to for compensation. The act of a madman is such a thing. Neither Cinemark, nor any other person or business, can anticipate every one-in-a-million occurrence that might cause harm and be prepared for it. The law shouldn’t impose a duty that suggests otherwise.