James Holmes’s 2012 attack on the Century Aurora 16 movie theater showing “The Dark Knight Rises” killed 12 people and wounded 70 others. Many of the survivors and relatives of those killed sued Cinemark, the theater’s owner, in state and federal court, arguing that lax security was the cause of the attack. Cinemark’s defense was that the shooting was unforeseeable. Two suits went forward, one in state court and one in federal court, with different plaintiffs. Cinemark prevailed in both. After the recent jury verdict for Cinemark in the state court case this summer, the company had sought nearly $700,000 from the victims under the “loser pays” Colorado law, which directs that the winning side in a civil case is entitled to recover its legal costs from the losing side. This is the predominant system in England and Europe. The litigation costs of Cinemark in the federal case are likely to be more than $700,000, maybe a lot more.
What’s going on here (the best question to begin any ethics inquiry)? Well…
1. The law suits were a terrible idea. This was the result, in part, of the increasingly popular ideological virus in our society that is slowly reprogramming previously functioning brains to believe that nobody should have to pay for their misfortunes, and that somebody with deeper pocket and more resources should always be obligated to pay instead. This is increasingly a staple of leftist thought: the government, insurance companies, corporations, people with more money, all of them should be potentially on the hook when misfortune strikes others, because that’s fair.
2. It’s not fair, though. It is profoundly un-American and unethical.
If those parties have caused the damage, or had the power and responsibility to mitigate it, or promised to pay for it, then there are ethical arguments to support them paying some or all of the expenses. But if something terrible happens to you, those people should have no more obligation to be accountable for your harm than you should have responsibility for taking care of them. That’s not the message sent by the culture though. Lawyers love the message that if you are harmed, somebody else can be found to ease your pain. They love it, because they can share in the bounty if a lawsuit seeking damages prevails, and this attitude guarantees more lawsuits.
3. It was predictable that these lawsuits against the movie theater would be filed, because there was bound to be greedy and/or incompetent lawyers who would take the cases. It was not a suit that should have been brought, however, and the plaintiffs should have listened when lawyers told them that, as I’m sure some did. Do you know how many mass shootings there have been in movie theaters? None. Zero. Rival gangs have had shootouts at a drive-in, and arguments have escalated into violence in ticket lines, and individuals have been attacked and killed for talking during a film, and movies about violence have sparked riots. No one, however, had ever done what James Holmes did, so it was ridiculous to try to make the theater pay damages because it didn’t anticipate what had never happened before.
4. The law suit was not technically frivolous, since it argued for a new standard of liability, so it was not an unethical lawsuit in legal ethics terms. It was still, however, an unethical lawsuit—in universal, right and wrong terms— that aimed to punish a corporation that did nothing wrong, based on the unethical principle that we are not responsible for the burdens of our own misfortunes. The lawsuits failed the Rule of Universality—would we want such a principle to apply to all tragedies?—-the Golden Rule, and utilitarianism. In an article about the case in the Los Angeles Times, victim and plaintiff Marcus Weaver is quotes as saying, “We all knew they were liable. We knew they were at fault.” How did they “know” that, since the theater management wasn’t liable, and wasn’t at fault? Who gave them the bizarre idea that it was? What lawyers failed their ethical duty to explain that the culture pf blame-shifting for catastrophes had warped their common sense and values?
5. If the plaintiffs in Colorado were not informed by their attorneys that there was a real risk of their woes being magnified by having to pay litigation costs after they lost, which was likely, that was unethical, as well as malpractice.
6. According to the Los Angeles Times, the federal judge overseeing the case told the plaintiffs’ attorneys that he was prepared to rule against their clients, and urged the plaintiffs to settle with Cinemark. What? Judges can’t do that! They can’t give one party a heads up on what he’s going to rule so they can get a settlement from the party that doesn’t know what the other party knows! No such settlement would be enforceable. I presume the judge will be hearing from the judicial discipline committee.
7. The illicitly-planted settlement, which would have given plaintiffs $150, 000 to split rather than the millions they were seeking, fell apart because a single victim refused to accept it. Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost, so she had reason to be unreasonable and selfish…but reason to be unreasonable and selfish isn’t justification. Her stubbornness, be it born of frustration, anger, misery or an obsession with revenge, was irresponsible and destructive, and he lawyer should have told her so, and perhaps did.
8. Because of the single victim who felt entitled to place the other plaintiffs at risk in the hope of a miracle that wasn’t going to happen, the loss of the case placed the burden of more than $700, 000 dollars on the victims, as well as additional costs of the federal suit. Many will say that this is unfair to the victims. I hate loser pays as public policy, but it certainly isn’t unfair in a case like this. Cinemark was forced to spend well over a million dollars because a lot of people randomly harmed by a madman felt that the law should redistribute misery. It was a wrongful, unfair, dangerous lawsuit, Imagine what measures would have to be put into place after Caremark lost, in every movie theater in the country. Airport-style security for moviegoers, pat-downs, armed guards, wildly increased insurance premiums, extra exits in theater. Heck, who knows what else? Bullet proof seats? Silent buzzers to summon police for a once in a millennium event? The inevitable result would be higher movie tickets, as you and I would have to pay for a lone gunman’s act in Colorado. A possible result would be the end of the movie industry.
9. The victims deserved to lose. Everyone should be thrilled that they did.
10. Today we learned that Cinemark has offered a deal in which it will drop its claims for litigation costs if the victims will agree not to appeal the cases. This is a wise move, if only from a public relations standpoint. Maybe it is a deal inspired, at least in part, by compassion, which would make it an ethical move as well.
11. All but four plaintiffs have agreed to this settlement, meaning that if they do forward with appeals and lose, as they should, the four will be solely responsible for the costs. No one should feel sorry for them when they do lose. They are rolling the dice, gambling hundreds of thousands of dollars that they will get lucky with an unjust ruling.
12. How do you like your loser pays now, Rosie? In 2007, Rosie O’Donnell shot off her big mouth on “The View” to the effect that the U.S. should have a loser pays system. The problem with “loser pays” is that while it discourages bad suits, long-shot suits and ill-conceived suits like these, it also discourages legitimate suits in cases where the litigation costs will soar and one of the parties is much better equipped to pay for them. I explained this on the old Ethics Scoreboard, and in 2010 re-posted that piece here, when loser pays raised its ugly, misshapen head again. An excerpt:
…Why don’t we have the British system that turns every lawsuit into a major financial risk to the plaintiff? We don’t have it because it would effectively cut off anyone without millions of dollars to burn from redress from major injuries caused by large and wealthy organizations. America has a contingent fee system in personal injury cases, which means that lawyers get paid only if a case prevails. It also has a system of court-ordered punishments, including court costs and fines, for plaintiffs and lawyers who bring absurd lawsuits…
Rosie’s brilliant solution would discourage even the most deserving plaintiffs from suing corporations that sold them deadly cars, bad drugs, fatal toys and other defective products. It would make it harder for working parents to sue negligent hospitals that left their child blind and brain-damaged, and careless surgeons who amputate wrong legs or miss obvious tumors while examining patients. The Catholic Church would have loved Rosie’s system when it was being brought to court for allowing sexual predators to serially molest young boys.
America leads the world in product safety because victims of negligence and callousness can sue without fear of being clobbered by companies that can spend, or threaten to spend, millions in their defense. The big pay-off from contingent fees, some of which are certainly excessive, provides incentive for plaintiff’s attorneys to sink millions of their own into legitimate cases, allowing them to be tried.
[Loser pays] would be a gift to every manufacturer of a dangerous product, every designer who paid more attention to aesthetics than safety, every bad doctor, every careless driver, every dishonest insurance company, and every shoddy construction company.