The movie theater massacre that unfolded in Aurora, Colo., is unfathomable to anyone of sound mind. Now that the dust has begun to settle, the all but certain onslaught of litigation has begun. TMZ reports that Torrence Brown Jr. has filed the first lawsuit. While Brown was not physically injured, his friend A.J. Boik was killed after being shot in the chest.

Brown's claims begin to show the litigation quandary facing our society in the aftermath of many tragedies.

Certainly those who were injured or killed are due their day in court. Without a doubt there is both criminal and civil culpability against accused killer James Holmes, who took the lives of twelve innocent moviegoers and injured dozens more. Many of the injured will require a lifetime of medical care for paralysis, traumatic brain injuries and other catastrophic conditions. Certainly juries will convene and judgments will be obtained against the lone gunman, but the reality is that they will merely be symbolic.

While the directions and intentions of the Holmes defense team are not certain, the likely outcomes are lifelong incarceration, the death penalty, or in the event of a successful insanity plea, life in a state mental institution. No matter the outcome, the culprit will have neither the will nor the means to pay as much as a penny on the inevitable judgments.

So what is the plan for the advocates of the injured and how could that impact claims organizations charged with defending those that they insure?

How will the cases of victims who were hurt, killed or, in the case of Brown, traumatized by the event play out in court? TMZ reports that Brown has hired Donald Karpel to represent him. Brown and Karpel's three target defendants are:

1. The theater. Karpel claims it was negligent for the theater to have an emergency door in the front that was not alarmed or guarded. It's widely believed Holmes entered the theater with a ticket, propped the emergency door open from inside, went to his car and returned with guns. The question is whether or not a reasonably prudent theater owner should have anticipated a madman would enter the theater through the emergency doors and attack a packed house.

2. Holmes' doctors. Karpel says it appears Holmes was on several medications—prescribed by one or more doctors—at the time of the shooting and he believes the docs did not properly monitor Holmes.

3. Warner Bros. Karpel says “Dark Knight Rises” was particularly violent and Holmes mimicked some of the action. The attorney says theater goers were helpless because they thought the shooter was part of the movie. Karpel tells TMZ, “Somebody has to be responsible for the rampant violence that is shown today.”

Why isn't Karpel going after the culprit himself? Probably because he realizes that collection would be an exercise in futility. The reality is that Karpel, like many trial lawyers, understands that deep pocket defendants will often pay rather than face the uncertainty of a jury, even when there may be no negligence on their part. This is part and parcel to what is wrong with the American judicial system—the most litigious and costliest in the world.

As trial lawyers plot their strategy, claims organizations faced with defending the inevitable litigation should give consideration to other potential targets. What about Holmes' parents who raised the madman? Or the University of Colorado that gave him an educational grant that he may have used to purchase the guns? Or the gun manufacturers, sellers and distributors? While some of this may seem a stretch, it is not beyond the realm of possibility as victims seek compensation, which is certainly due, for their injuries.

The challenge for those defending these actions will be immense, in particular when the injuries sustained are serious. But what about the defense of the claims from those who were not physically injured but are claiming mental anguish? Or lawsuits from those not in the actual theater but in close enough proximity to witness or hear the rampage?

The only thing that seems certain is that the lawsuit filed by Brown may be the first, but it will be far from the last. As the cases play out and more defendants are identified, others will certainly fall in line. The biggest question is whether the person ultimately responsible will be held accountable in civil court.

Christopher Tidball is an executive claims consultant and the author of Re-Adjusted: 20 Essential Rules To Take Your Claims Organization From Ordinary To Extraordinary. He is a twenty-year insurance industry veteran having served in multiple leadership capacities. To learn more, please visit www.christidball.com or email chris@christidball.com.

Special Reports /

First Lawsuit Filed for Aurora Shooting

Related Stories

Recommended For You