James Holmes case: Cinemark lawsuits amend references to prior gang shooting at Century 16
The Aurora theater shootings have spawned a number of lawsuits against Cinemark, owner of the Century 16, where James Holmes allegedly killed twelve people and wounded 58. But two of the suits were subsequently amended to remove direct references to prior gang shootings at the theater -- a rationale for holding Cinemark negligent in the attack. And in a motion to dismiss on view below, the company makes pointed reference to the change.
The first pair of suits was put forward by Denver-based Keating Wagner Polidori Free, P.C., on behalf of three people injured in the attack: Denise Traynom and Brandon Axelrod, pressing the case jointly, and Joshua Nowlan. The two suits were filed in United States District Court for the District of Colorado circa September.
Brandon Axelrod, left, speaks with reporters in the days after the Aurora theater shooting.
Then, earlier this month, attorney Marc Bern, who successfully sued on behalf of 9/11 first responders, filed a negligence suit against Cinemark in Arapahoe County District Court. Among the plaintiffs, as we've reported, are Farrah Soudani, who got an assist from theCHIVE.com to help defray enormous medical costs associated with the serious injuries she sustained, and Yousef Gharbi, a teenager shot in the head during the assault.
Another plaintiff is Mike White, Sr., who was at the theater with his son, Mike White, Jr., during the fateful screening of The Dark Knight Rises. The elder White wasn't physically injured, but his namesake suffered severe wounds.
All three suits argue that the Century 16 should have had security personnel on hand at the midnight premiere because of prior crimes that took place at the theater. Here's the language in the Traynom-Axelrod and Nowlan documents, with italics added to key words....
Included in the previous incidents at the theater was at least one shooting, involving gang members. These previous incidents also included assaults and robberies.
In the amended version of the suits, however, these passages were tweaked. The sections, with italics inserted by us for clarity, now read as follow:
Included in the previous incidents near the theater was at least one shooting, involving gang members. These previous incidents also included assaults and robberies.
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The switch from "at the theater" to "near the theater" jumped out to Cinemark's attorneys, whose motion to dismiss the suits draws the court's attention to the freshened-up sections.
Here's what Cinemark had to say about the language changes:
Plaintiffs allege that there were "previous disturbances, incidents, disruptions and other criminal activities [that] had taken place at or near the property of the theatre...." As support for this broad allegation, Plaintiffs contend there were incidents "near" the theatre, including "at least one shooting, involving gang members," and "assaults and robberies"(notably, both the date of the incidents and their proximity to the theatre are undefined, and the new allegation stands in tellingly stark contrast to the original Complaint's allegation that the shooting occurred "at" the Theatre).
The Bern-filed suit's alterations to this section aren't as substantive. This is the original reference to gang shootings....
According to an August 16, 2012, New York Times report, Betsy Davis, the charge nurse at the University of Colorado Hospital, reported that there had been gang shootings before at the Defendants' theater.
...and this is the new, more detailed passage:
Upon information and belief, an August 16, 2012, New York Times news article reports that, Becky Davis, the charge nurse at the University of Colorado Hospital "thought it was probably a gang shooting -- they had happened before at the theater -- and she began preparing for one to three new patients, the usual number from such an event.
Of course, a nurse at a hospital is not an official police source capable of confirming that one or more gang shootings actually took place at the theater prior to the July 20 massacre -- and the word changes in the other two lawsuits imply that proof of such crimes is elusive.
No telling whether this will have an impact on the suits' success or lack thereof. But it indicates how vigorously Cinemark's lawyers are fighting the complaints in advance of plans to reopen the Century 16 during the first part of 2013.
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