Traynom v. Cinemark USA, Inc.

• Citation: 940 F.Supp.2d 1339
• Decision Date: 17 April 2013
• Docket Number: 13–cv–00046.,Civil Action No. 12–cv–2900.,Civil Action No. 12–cv–02687–RBJ–MEH.,Civil Action No. 12–cv–02704–RBJ–MEH.,13–cv–00045–RBJ–MEH.,Civil Action No. 12–cv–02706–RBJ–MEH.,Civil Action No. 12–cv–02705–RBJ–MEH.,13–cv–00114–RBJ–MEH.,Civil Action No. 12–cv–02517–RBJ–MEH.,Civil Action No. 12–cv–02514–RBJ–MEH.
• Parties: Denise TRAYNOM, and Brandon K. Axelrod, Plaintiffs, v. CINEMARK USA, INC., d/b/a Century Aurora 16, Defendant. Joshua R. Nowlan, Plaintiffs, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Dion Rosborough, Ryan Lumba, Tony Briscoe, Jon Boik, next friend of Alexander Boik, and Louis Duran, Plaintiffs, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Jerri Jackson, Plaintiff, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Gregory Medek, and Rena Medek, Plaintiffs, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Theresa Hoover, Plaintiff, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Ian Sullivan, Plaintiff, v. Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant. Lynn Johnson, Machael Sweeney, Malik Sweeney by and through his parents and next friends Machael Sweeney and Lynn Johnson, Malachi Sweeney and Machi Sweeney, v. Century Theaters, Inc.; Cinemark USA, Inc., d/b/a Century Aurora 16, Defendants. Chichi Spruel and Derick Spruel, Plaintiffs, v. Cinemark, USA, Inc., d/b/a Century Aurora 16, Defendant. Munirih F. Gravelly, Plaintiff, v. Cinemark, USA, Inc., d/b/a Century Aurora 16, Defendant.
• Court: U.S. District Court — District of Colorado

940 F.Supp.2d 1339

Denise TRAYNOM, and Brandon K. Axelrod, Plaintiffs,

v.CINEMARK USA, INC., d/b/a Century Aurora 16, Defendant.

Joshua R. Nowlan, Plaintiffs,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Dion Rosborough, Ryan Lumba, Tony Briscoe, Jon Boik, next friend of Alexander Boik, and Louis Duran, Plaintiffs,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Jerri Jackson, Plaintiff,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Gregory Medek, and Rena Medek, Plaintiffs,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Theresa Hoover, Plaintiff,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Ian Sullivan, Plaintiff,

v.Cinemark USA, Inc., d/b/a Century Aurora 16, Defendant.

Lynn Johnson, Machael Sweeney, Malik Sweeney by and through his parents and next friends Machael Sweeney and Lynn Johnson, Malachi Sweeney and Machi Sweeney,

v.Century Theaters, Inc.; Cinemark USA, Inc., d/b/a Century Aurora 16, Defendants.

Chichi Spruel and Derick Spruel, Plaintiffs,

v.Cinemark, USA, Inc., d/b/a Century Aurora 16, Defendant.

Munirih F. Gravelly, Plaintiff,

v.Cinemark, USA, Inc., d/b/a Century Aurora 16, Defendant.

Civil Action Nos. 12–cv–02514–RBJ–MEH, 12–cv–02517–RBJ–MEH, 12–cv–02687–RBJ–MEH, 12–cv–02704–RBJ–MEH, 12–cv–02705–RBJ–MEH, 12–cv–02706–RBJ–MEH, 12–cv–2900, 13–cv–00114–RBJ–MEH, 13–cv–00045–RBJ–MEH, 13–cv–00046.

United States District Court, D. Colorado.

April 17, 2013.

Christina M. Habas, Michael O'Brien Keating, William Lawrence Keating, Deirdre Elizabeth Ostrowski, Keating Wagner Polidori & Free, P.C., Denver, CO, for Plaintiff.

John Michael Roche, Kevin Scott Taylor, Kyle Paul Seedorf, Taylor Anderson, LLP, Denver, CO, for Defendant.

ORDER

R. BROOKE JACKSON, District Judge.

These cases are before the Court on motions to dismiss filed by defendant Cinemark. On November 27, 2012 the Court referred the seven cases then pending to United States Magistrate Judge Michael E. Hegarty for various purposes including the preparation of a recommendation on the motions to dismiss. On January 24, 2013 the magistrate judge issued his recommendation that the motions be granted in part and denied in part. Cinemark filed a timely objection to the recommendation. Certain plaintiffs have objected to the magistrate judge's recommendation to dismiss their wrongful death claims.

Meanwhile, three additional cases have been filed. Cinemark filed similar motions to dismiss those cases, and the motions have now been fully briefed. There is no reason to refer the additional cases to the magistrate judge at this time, because the motions and issues are essentially the same as those on which he has issued his recommendation. For the reasons set forth herein, the Court dismisses the negligence claims but denies the motions to dismiss the statutory claims.

I. FACTS.

These cases arise from the tragic shootings that occurred at the Century Aurora 16 theater complex in Aurora, Colorado on July 20, 2012. For purposes of a motion to dismiss for failure to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6) the Court must assume the truth of all well-pleaded allegations of fact and draw all rational inferences from those assumed facts in favor of the plaintiffs. Therefore, solely for purposes of resolving the pending motions, the Court assumes the truth of the following facts.

Before July 20, 2012 Cinemark knew that previous disturbances, incidents, disruptions and other criminal activities had occurred at or near the property of the theater. These incidents typically occurred during the evening hours and included assaults, robberies and at least one shooting near the theater involving gang members. Based on that knowledge Cinemark hired security personnel including off-duty law enforcement officers from the Aurora Police Department to be present on Friday and Saturday evenings.

July 19, 2012 was a Thursday. The movie, “The Dark Knight Rises,” was scheduled to premiere that night at midnight. Cinemark advertised and sold tickets and, anticipating large crowds, scheduled showings in more than one auditorium. However, although security personnel were present earlier in the day when box office cash was being transferred, no security personnel were hired or were present when the movie was to be shown. The exterior doors to the theaters did not have an alarm system, an interlocking security system, or any other security or alarm features that would put Cinemark's employees or security personnel on notice if someone exited the theater through the exterior door, or left the door in an open position, or re-entered through the door. Cinemark did not have in place any security practices or procedures, nor did it employ or adequately train any employee or security personnel to prevent or deter someone from surreptitiously and unlawfully re-entering the theater through an unlocked and unalarmed door.

The theater complex had public parking available on all sides including behind Auditorium 9. However, there was no system or procedure for theater personnel to survey or monitor the parking areas behind or to the sides of the theaters. The failure to monitor the parking areas near the theater and the external doors made it possible for a person to re-enter the theater without fear of interference, interruption or chance at being discovered and to leave the door open for a period of time.

An individual present for the midnight showing, referred to as “the gunman,” purchased a ticket and entered Auditorium 9 through the normal patron entrance. After the theater was darkened and the screen projection began the gunman left his seat and exited the theater to the outside parking area through a door located at the right, front side of the movie screen, leaving the door ajar so that it would remain open. He went to his car, which was parked near the same exterior door to Auditorium 9, and withdrew one or more fully loaded shotguns; an AR–15 assault rifle, with a fully loaded “banana clip;” one or more fully loaded automatic Glock handguns; additional ammunition; and several tear gas canisters. He also put on body armor and a gas mask. The gunman made one or more trips from his car through the open exterior door to Auditorium 9, with his firearms, ammunition and tear gas. This took an extended period of time, but he was not monitored, deterred or contacted by theater personnel.

After throwing tear gas canisters into the auditorium, the gunman opened fire with his various firearms, continuing over the course of several minutes until his weapon jammed. He killed 12 theater patrons and injured many others. The plaintiffs in these cases are persons who were injured, physically and emotionally, and family members of persons who were killed or injured. After his weapon jammed, the gunman walked out the same door and sat in his car until he was arrested by police. Theater personnel did not intervene during the course of the shooting. For several minutes after the shooting had stopped theater personnel still took no action to assist or to evacuate the injured who were still present in Auditorium 9.

Based on these events plaintiffs have filed claims of premises liability under the Colorado Premises Liability Act, C.R.S. § 13–21–115; common law negligence; and as to some plaintiffs who are parents of deceased victims, a statutory wrongful death claim. Magistrate Judge Hegarty recommended that the motions be granted with respect to the negligence and wrongful death claims but denied with respect to claims under the Premises Liability Act. Cinemark objected to the magistrate judge's recommendation concerning the Premises Liability Act claims. The plaintiffs who have asserted statutory wrongful death claims have objected to the recommendation that those claims be dismissed.

II. STANDARD OF REVIEW.

This Court reviews de novo any part of a magistrate judge's recommendation on a disposition motion to which a timely objection has been made. Fed.R.Civ.P. 72(b)(3).

III. CONCLUSIONS.A. Premises Liability Act

I suspect that many people, despite overwhelming sympathy and grief for the victims of the Aurora theater shootings, might upon hearing about these lawsuits have had reactions like, “how could a theater be expected to prevent something like this?” I confess that I am one of those people.

Initial reactions aside, however, the pending motions present difficult questions of interpretation and application of law. I start with a bit of history. Before 1986 the recourse of an individual who was injured on another's land was generally determined by common law negligence. He must show (1) that the landowner owed him a legal duty to act to avoid injury; (2) which the landowner breached, (3) thereby causing the injury. The court determined the existence and scope of the duty as a matter of law, considering such factors as the risk involved, the foreseeability and likelihood of the injury, the social utility of the landowner's conduct, and the magnitude of the burden that would be placed on the landowner of guarding against the injury. See, e.g., Taco Bell v. Lannon, 744 P.2d 43, 46 (Colo.1987).

That changed when the Colorado General Assembly enacted the Premises Liability Act, C.R.S. 13–21–115. The statute applies to “any civil action against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property.” Id. § 2. Intending among other things “to protect landowners from liability in some circumstances when they were not so protected at common law,” id. § 1(c), the statute defines landowners' duties according to the plaintiff's status as either a trespasser, a licensee or an invitee.

In the present cases it is undisputed that Cinemark is a “landowner,” and that the plaintiffs were “invitees.” The statute provides, as relevant here, that “an invitee may recover for damages...