Tort reform in action: Aurora theater shooting plaintiffs found to owe $700K in legal fees to cinema (1 Viewer)

superchuck500

guarding the potatoes
VIP Subscribing Member
VIP Contributor
Diamond VIP Contributor
Joined
Aug 9, 2004
Messages
57,360
Reaction score
86,666
Location
Mt. Pleasant, SC
Offline
People have long talked about the need for tort reform - but how do people respond when they see tort reform in action? Does it feel right? Does it strike the balance between discouraging frivolous or weak lawsuits without discouraging legitimate ones?

One of the basic concepts in tort reform is that there are too many tort lawsuits with little to no legal foundation. But there is no guardian at the door at the court clerk's office and these suits must be defended, causing the defendant to incur costly fees and expenses. Some states have chosen to address the problem by allowing a victorious defendant to seek payment of those fees and costs by the plaintiff. (Most states have long allowed for recovery of costs, but that typically did not involve legal fees).

Following the Aurora, Colorado "Batman Shooting", seven survivors sued the cinema, arguing that poor theater security made the theater-owner at fault for the shooting under Colorado tort law. The judge urged settlement but when the parties did not settle, he ruled in favor of the theater after a full trial. Thereafter, the theater sought recovery of legal fees in accordance with Colorado's "fee shifting" statute, part of a wave of tort reform in the 1980s.

The judge found that the request met Colorado's requirements for shifting fees to the losing party, and ruled that the theater's $700,000 attorney fee must be paid by the plaintiffs. There were originally seven plaintiffs, but only four remained through trial, so only they will be liable for the judgment.

Personally, while I'm in favor of tort reform and some kind of fee shifting, I don't like this approach. I think the goal should be discouraging frivolous lawsuits by allowing defendants to recover fees from those plaintiffs. But if a defendant cannot defeat a plaintiff's claim with a preliminary motion to dismiss or even a motion for summary judgment after discovery, I don't see how that case can be called frivolous. If a case requires trial to resolve, how could it have been frivolous? Just because a plaintiff loses doesn't mean that the case was the kind that we should be trying to discourage in our tort system.

Plus, fees incurred in defending a full trial are always going to be substantial. If you don't have a standard for recovery that requires the defendant win on a motion, the fees should at least be capped. It just strikes me as strongly discouraging, even for legitimate plaintiffs, to have consider the risk that losing the case will bankrupt you - and that should never be an objective of any tort system or tort reform. And I say that as someone who has spent most of my professional life involved in tort defense in one way or another.


A survivor of the Aurora movie theater massacre said he believes "everything was for naught" after a failed lawsuit against theater owner Cinemark left four survivors on the hook for more than $700,000 owed to the company.

The survivors had filed a federal lawsuit alleging that the theater's security flaws had helped enable the attack that left 12 dead and more than 70 injured in 2012.

The judge first urged the plaintiffs to settle, but ruled after the deal collapsed that Cinemark was not liable for the shooting, according to The Los Angeles Times.

Colorado law allows the winning side of civil cases to seek costs, so plaintiffs were then ordered to pay more than $700,000 to Cinemark to reimburse the theater chain's legal fees.
Aurora shooting victims have to pay Cinemark theater chain - Business Insider
 

gwballin

Pro-Bowler
Joined
Dec 8, 2009
Messages
825
Reaction score
1,126
Offline
I think the goal should be discouraging frivolous lawsuits by allowing defendants to recover fees from those plaintiffs. But if a defendant cannot defeat a plaintiff's claim with a preliminary motion to dismiss or even a motion for summary judgment after discovery, I don't see how that case can be called frivolous. Just because a plaintiff loses doesn't mean that the case was the kind that we should be trying to discourage in our tort system.
I couldn't agree more.

I suppose I can't be angry at the judge since he is applying the law as it is written but I have to imagine the legislators in CO will have to fix their mistake since this could not possible be the intended result.
 

Grandadmiral

Infinite Power is da ****
Joined
Aug 7, 2002
Messages
22,172
Reaction score
13,494
Age
45
Online
From what I read, they were urged and eventually agreed to take a settlement until one of the members in the class changed course, turned it down, and wanted to move forward to trial.

Sucks for them.
 
OP
superchuck500

superchuck500

guarding the potatoes
VIP Subscribing Member
VIP Contributor
Diamond VIP Contributor
Joined
Aug 9, 2004
Messages
57,360
Reaction score
86,666
Location
Mt. Pleasant, SC
Offline

DaveXA

I love the Lord!
Staff member
Super Moderator
Joined
Sep 6, 2001
Messages
33,337
Reaction score
21,098
Age
49
Location
Vienna, VA via Lafayette
Offline
There's more info in this thread: Aurora massacre survivors sued. How did 4 end up owing the theater $700,000? - LA Times

Though some if the posture and facts are confusing. I'd have to piece it all together to see how it really went down.
Were the survivors made aware of the possible risks of this outcome? If they were, I'm not sure how to get around the fact that they could end up in this predicament. If they weren't so advised, then they got bad legal advice. FWIW, I never thought suing the theater was a good idea to begin with. From what I've read, it seems to me that winning that case was a long shot at best.

After reading the article, the remaining 4 should have seen the writing on the wall. The judge in so many words said he'd rule for the defendant and encouraged them to settle. When the 37 others removed their names as plaintiffs, you'd think the other 4 would have a clue as to what would eventually happen. It sucks, but I don't know how to fix that sort of outcome.
 

Mr. Sparkle

Disrespectful to dirt
Joined
Mar 5, 2002
Messages
12,255
Reaction score
10,894
Offline
I am in favor of loser-pays for every civil lawsuit.

Encourages settlement, allows plaintiffs to keep their entire award without lawyers taking 33-40% off the top, and defendants can't be bled to death by motion practice.

I have nothing but sympathy for the Aurora families and their loss, but if we are talking about legal policy it needs to apply to both the most sympathetic and unsympathetic parties.

Also, PSA: when the judge is telling you to settle, you should listen.
 

guidomerkinsrules

W H A T E V I R
VIP Contributor
Joined
Apr 30, 2007
Messages
60,442
Reaction score
98,528
Location
by the cemeteries
Online
what about a flat atty fee?
say the "shifting pay" party is on the hook $50 an hour for the atty - or even $25/hour for preliminary and $50 for court appearance

it keeps the threat of teams of corporate lawyers at $1000 an hour or whatever you deatheaters are charging these days:ezbill: from driving away legit calims
 

crosswatt

Gone Fishing.
Staff member
Administrator
VIP Contributor
Joined
Jul 10, 2001
Messages
32,282
Reaction score
46,065
Location
Chesapeake, VA
Offline
While I get the motive behind the lawsuit, I don't understand how they expected any favorable outcome. I mean, are there movie theaters somewhere with security that is more than a bored teenager scanning tickets at the door? I don't see how anyone thought that would be a viable or provable supposition.
 

notsaintkyle

Veteran Starter
Joined
Aug 1, 2016
Messages
400
Reaction score
1,024
Offline
what about a flat atty fee?
say the "shifting pay" party is on the hook $50 an hour for the atty - or even $25/hour for preliminary and $50 for court appearance

it keeps the threat of teams of corporate lawyers at $1000 an hour or whatever you deatheaters are charging these days:ezbill: from driving away legit calims
On what planet is $25/hr or $50/hr reasonable compensation for an attorney?
 

Galbreath34

Very Banned
Gold VIP Contributor
Joined
May 8, 2008
Messages
32,273
Reaction score
30,806
Offline
The error in fee shifting absolutely is assuming that any loss indicates it was frivolous to bring the case to trial.

Not all losses indicate total lack of merit.
 

Galbreath34

Very Banned
Gold VIP Contributor
Joined
May 8, 2008
Messages
32,273
Reaction score
30,806
Offline
While I get the motive behind the lawsuit, I don't understand how they expected any favorable outcome. I mean, are there movie theaters somewhere with security that is more than a bored teenager scanning tickets at the door? I don't see how anyone thought that would be a viable or provable supposition.
I don't know in this case you had an emergency exit door propped and someone able to haul stuff in. There might be a reasonable assumption that someone was being paid to watch the exits over CCTV. I'm not arguing that the theater should have been held liable at all, just that there are things beyond what you suggest that could be reasonable expectations of security for patrons. Just as you'd expect fire alarms and exit signs etc, you might expect some minimal surveillance and door security that wasn't handled right.

Again, not at all stepping in to say the theater should be on the hook, just saying someone thinking there are reasons they could be held negligent aren't prima facie ridiculous.
 

JimEverett

More than 15K posts served!
Joined
Mar 18, 2001
Messages
24,979
Reaction score
7,835
Offline
just like putting caps on damages, a reform that requires parties to pay because of frivolity after a case makes its way to trial is absolutely insane. It makes no sense whatsoever because a trial on the merits is irrefutable evidence of a complete absence of frivolity. just like a cap on damages only serves to punish those that were sincerely harmed.

And worse - it closes the courthouse for poor people. No, really, it closes the courthouse for all but the most wealthy.
 

JimEverett

More than 15K posts served!
Joined
Mar 18, 2001
Messages
24,979
Reaction score
7,835
Offline
It hurts the lawyers too
Sure it does.

Caps also help negligent doctors (or any negligent actors) - right?

And of course it doesn't hurt the lawyers who have 20 such cases at any given time as much as it does the family who lost a breadwinner, or a child, or . . .
 

CountWhoDat

Pro-Bowler
Joined
Sep 23, 2013
Messages
1,036
Reaction score
2,101
Location
Metairie, LA
Offline
I couldn't agree more.

I suppose I can't be angry at the judge since he is applying the law as it is written but I have to imagine the legislators in CO will have to fix their mistake since this could not possible be the intended result.
This is absolutely the intended result of so-called "tort reform" at the state level. Lobbyists from the most powerful industries pushed for these laws to try to chill plaintiffs - legitimate or no - from filing lawsuits.

What do you think a potential plaintiff with a less-than-ironclad claim (which most are) in Colorado might consider after reading this article?

Tort reform does not discourage frivolous lawsuits; it discourages ALL lawsuits, and that's what its intended to do. Most companies are happy to settle a lawsuit with Joe Blow that slipped in the grocery store or got hit by the tractor, because they fear what a jury or judge might do to them if it gets that far, on top of the expenses they incurred to litigate the matter.

This is yet another corporate-friendly legislative wave sponsored by our friends at ALEC and sold to Americans using the archetypal "bad plaintiff" as a scapegoat for issues in our civil courts, none more so than the famous "McDonald's Coffee" plaintiff, Stella Liebeck.

If you ever want to hear the complete version of this woman's story, and the story of tort reform nationwide, check this out:

HOT COFFEE, a documentary feature film
 

Galbreath34

Very Banned
Gold VIP Contributor
Joined
May 8, 2008
Messages
32,273
Reaction score
30,806
Offline
Honestly we get fooled into the wrong sides of these things all the time. It's far better one company with a legal deck stacked their way gets a tough judgment rarely than simple people get justice rarely is your push here, and you may be completely right that that's what most tort reform's bottom line results mean. There certainly are worse things than McDonalds writing down one quarter of profit and one lady getting too much money every few decades.

One where I think that happens is with Veteran and other disability. They sell outrage over goldbricking PSTD faker so well that we wind up denying claims to people with missing limbs that clearly deserve benefits. I'd much rather pay 10,000 fakers for life than risk denying one honestly disabled soldier the benefits earned by volunteering and serving in the ****.

Unfortunately they're really good at drumming up outrage over someone putting one over on the government that they stack the odds in favor of the very government they claim to mistrust in the name of "protecting your tax dollars". Makes me sick thinking of how we edge our servicemen out of benefits this way. It's bad with normal disability too, but it just really gets to me with soldiers.
 

Create an account or login to comment

You must be a member in order to leave a comment

Create account

Create an account on our community. It's easy!

Log in

Already have an account? Log in here.

Users Who Are Viewing This Thread (Users: 0, Guests: 1)

Similar threads


Headlines

Top Bottom