Aurora movie theater shooting witnesses argue lawsuit against theater shouldn't be dismissed

AURORA, Colo. - Two witnesses to the July mass shooting inside an Aurora movie theater are arguing their lawsuit against the theater owner should not be thrown out.

The lawsuit was filed by Chichi Spruel and Derick Spruel, who said they were in theater 9 with Munirih Gravelly and Jesse Childress. Gravelly was injured and Childress was killed.

A criminal court judge has ordered James Holmes to stand trial on 166 counts related to his allegedly opening fire in the theater with multiple weapons during a midnight premier of "The Dark Knight Rises."

The Spruels' civil lawsuit requested relief based on the Colorado Premises Liability Act, which is often used in injury lawsuits. It also claimed Cinemark was negligent about protecting the safety of its customers.

On Feb. 11, Cinemark filed a motion to dismiss the Spruels' lawsuit, saying "it fails to state a claim upon which relief can be granted."

Cinemark's lawyers wrote that the company could not have foreseen the mass shooting.

"Because none of the plaintiffs in all of the cases pending in this Court relating to Mr. Holmes’ injury-causing mass-murderous assault have alleged facts which show that Cinemark "knew or should have known" that such assault was likely to occur, Rule 12(b)(6) mandates dismissal of all of them," the motion to dismiss says.

The plaintiff's outlined their arguments against dismissal in a response filed Sunday. It explains they don't believe the theater needs to have foreseen the shooting to be liable. Instead, they argue, the law requires only the "unreasonable failure to exercise reasonable care to protect against dangers of which it actually knew or should have known."

In support of that argument, the document filed on behalf of the Spruels argues Cinemark had occasionally hired off-duty police officers to provide security, but not on the night of July 20.

They allege that in the four months immediately prior to the shooting, Aurora Police had responded to more than one hundred 911 calls, many involving violent crime, at the theater. The document says those calls included assaults, concealed weapons, robberies, fighting, suspicious persons and a shooting.

"It is the duty of a landowner, such as Cinemark, to take appropriate action to protect against dangers that they obviously must have known about," says the response to the motion to dismiss. "If they hadn't known about these dangers, what would be the reason for hiring off-duty Aurora police officers on Friday and Saturday nights, when crowds were anticipated to be larger in the theater?"

The Spruels also allege Cinemark failed to use "reasonable care" concerning protection against unauthorized entry into the theater, a lack of warning signals on the emergency exit door allegedly used by the shooter and failure to property train employees in emergency procedures or surveillance procedures.