Back when news broke of James Holmes’ shooting at a midnight screening of The Dark Knight Rises in Aurora, Colorado on July, I briefly considered writing about it.  As hard as it is to write about a tragedy on a personal level, I genuinely find the law interesting; unpacking the liability after an air show disaster or a sexual predator run amuck at a university is, to me, both challenging and rewarding.  I was quite busy last week, though, and frankly my heart was not in it, because the news quickly got the civil liability story correct, leaving not much to say. Bloomberg news summed it up not long after the shooting:

Law professors and practicing lawyers said liability questions would stem from any doubt about the safety and security procedures at the theater where the shooting left 12 people dead and 58 injured, or the university where the suspect, James Holmes, allegedly received packages of ammunition. Those inquiries are unlikely to lead to successful lawsuits because such cases require proving that a company or organization acted unreasonably, and knew, or should have known, about the danger posed, said Tom Russell, a University of Denver law professor and a practicing attorney.

The big obvious issue would be inadequate security claims against the movie theatre, which look like they could be a tough sell. No Court is going to make a movie theater strictly liable for every injury that occurs on their premises; the plaintiff will need to show some unreasonable conduct by the movie theater, like employees failing to call the police, or the movie theater locking patrons inside. As far as I’ve seen, the core allegation is that they left an emergency exit unlocked without an alarm — but I question if that’s  truly negligent.

Just to round out the other potential defendants, victims can sue Holmes, but it is pointless to do so: he has no assets and will be in jail for the rest of his life. Victims cannot sue the police or other first responders for anything they did, because they (rightfully) enjoy sovereign immunity for good faith rescue efforts.

Victims cannot sue gun manufacturers because gun manufacturers effectively own the political party that controlled Congress and the Presidency in 2005, which passed and signed the “The Protection of Lawful Commerce in Arms Act” (sponsored by Senator Larry “Wide Stance” Craig), a law that (wrongly) prohibited any lawsuit against the manufacturers or sellers for any injury arising from “criminal or unlawful misuse of a firearm.”

Victims also cannot sue Warner Brothers or Christopher Nolan or the like for the same reason the Columbine lawsuits against video game manufacturers were dismissed: free speech, the lack of any legal duty running from entertainers to shooting victims, and the criminal conduct being a superseding cause. Sanders v. Acclaim Entertainment, Inc., 188 F. Supp. 2d 1264 (D. Colorado 2002). 

In the past day or so, news has broken — but has also been disputed — that Holmes apparently sent a University of Colorado psychiatrist a notebook full of details about the attack prior to it happening, a package that was not opened up until afterwards. Colorado has, as a general matter, accepted the Tarasoff reasoning that mental health professionals can be held liable for negligently releasing threatening patients or failing to warn identifiable targets, but as far as I can tell has only done so in limited circumstances. Perreira v. State, 768 P. 2d 1198 (Colo. 1989)(when considering whether to release a patient, the state psychiatrist had a legal duty to exercise due professional care in determining whether the patient had a propensity for violence that would create an unreasonable risk of bodily harm to others). Notably, Perreria and other Colorado cases specifically held that “foreseeability by itself does not establish the existence of a legal duty.” Solano v. Goff, 985 P. 2d 53 (Colo. Court of Appeals, 5th Div. 1999).

The claims against the movie theater and the psychiatrist are both quite interesting, but, truth is, both of these situations have a serious flaw in terms of proving liability: the foreseeability of the specific attack. Broadly speaking, although a tortfeasor is generally liable for foreseeable harms that occur after the tort, courts tend to interpret criminal conduct as a superseding cause that cuts off liability — e.g., if you’re drunk driving and injure someone, you’re responsible if the person dies as a result of a doctor committing malpractice, but not responsible if a nurse poisons the person — and inadequate security claims require the foreseeability of that type of crime, while Tarasoff claims usually require showing specific knowledge of the criminal’s intent.  These are non-frivolous clams, but ones that require a lot more evidence to evaluate than we have.

And then a lawyer had to do something dumb: file a lawsuit against the theater (okay), against Holmes’ doctors (a bit iffy at this point), and against Warner Brothers (frivolous — a conclusion I reach because I cannot envision any bona fide argument for the Court doing anything different from what the Sanders court did). Making matters worse, the plaintiff wasn’t physically injured in the attack, but instead claims emotional injuries from watching their best friend shot to death. Colorado permits these types of emotional injuries where a plaintiff was in the “zone of danger,” Culpepper v. Pearl Street Building, Inc., 877 P.2d 877, 880 n.3 (Colo. 1994), but, well, they’re a tough claim in front of a jury. If you’re not consistently treating for diagnosed PTSD, you can expect to recover something well below $50,000. If you are treating, but can’t show some clear economic losses, then you can expect to recover well below $200,000. That’s just how the numbers tend to look — making this sort of claim nowhere near the amount of time, energy, and effort it will require.

All of which makes me made think this looks like the $30 million dog-bite case. What did the lawyer think he was doing? Advertising for other cases by getting his name in the paper first? Personal injury lawyers have enough trouble protecting their reputation without a lawyer whose website talks more about his defense work than his plaintiff’s work filing a dubious lawsuit — he has just as much a chance against Warner Brothers as he does against Batman — just to be first out of the gate. I can’t know why this lawyer filed this case the way he did, but I can say that, when a client comes to you after a tragedy, lawyers must spend more than five minutes thinking about what works and looks better for their client instead of imaging their name in the paper and their face on television.