Case 1:13-cv-00045-RBJ-MEH Document 1 Filed 01/09/13 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv-00045 CHICHI SPRUEL and DERICK SPRUEL, Plaintiffs, vs. CINEMARK, USA, INC., d/b/a CENTURY AURORA 16, Defendant.

COMPLAINT AND JURY DEMAND

Plaintiffs, Chichi Spruel and Derick Spruel, by their attorneys, DAVIDOVICH LAW FIRM, LLC, hereby submit their Complaint and Jury Demand against the above captioned Defendant. As grounds therefor, Plaintiffs state and allege as follows: JURISDICTION 1. At all times relevant to this case, Plaintiffs, Chichi and Derick Spruel, were

residents of the State of Colorado, residing at 24708 E. Florida Avenue, Aurora, CO 80018. 2. Upon information and belief, Defendant Cinemark, USA, Inc., d/b/a Century Aurora

16, is a Texas corporation with its principal place of business at 3900 Dallas Parkway, Suite 500, Plano, TX 75093. The theater ("theater"), where the incidents forming the basis for this Complaint occurred, was and is located in the Aurora Mall, at 14200-14300 E. Alameda Avenue, Aurora, CO 80012, in the County of Arapahoe, State of Colorado.

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3.

This Court has jurisdiction over Plaintiffs claims against this Defendant pursuant to

28 U.S.C. 1332, since there is complete diversity of citizenship between the parties, and the amount in controversy herein exceeds the sum of $75,000.00, exclusive of costs and interest. 4. Venue is proper herein pursuant to 28 U.S.C. 1391 (b)(2), because the events or

omissions giving rise to this claim occurred in the District of Colorado. GENERAL ALLEGATIONS 5. Upon information and belief, before July 20, 2012, Defendant had information that

previous disturbances, incidents, disruptions and other criminal activities had taken place at or near the property of the theater. Based on information and belief, at the Aurora Mall, at 14200 E. Alameda Avenue, from March 20, 2012 through July 19, 2012, these incidents included approximately 99 emergency 911calls, 35 additional calls involving assaults, concealed weapons, disorderly conduct, a shooting, robberies, and suspicious persons. Based on information and belief, at the theatre, located at 14300 E. Alameda, from March 19, 2012 through July 14, 2012, these incidents included 9 calls involving suspicious activity, mental health, fighting and emergency 911 calls. Many of the referenced incidents took place during the evening hours. 6. Based upon the knowledge of the amount of the need for police intervention on a

regular basis, both in the mall and in the theatre, Defendant hired various security personnel, including, but not limited to, off-duty law enforcement officers from the City of Aurora Police Department. 7. Such security personnel and off-duty police officers were not present at all

times the theater was open, but rather, upon information and belief, such security personnel were employed on Friday and Saturday nights only.

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8. Auditorium 9. 9.

The theater had public parking available on all sides of the theater, including behind

The theater advertised and sold tickets to the July 20, 2012 midnight premier of the

movie, "The Dark Knight Rises." Defendant charged people who attended the movie, and due to the anticipated large crowds, arranged to have the movie shown in more than one auditorium. 10. Although the theater was showing a midnight premier of the movie, beginning at

12:05 a.m. on July 20, 2012, and was expecting large crowds of people to attend the midnight showing, no security personnel were present for that showing. All of the following paragraphs relate to that showing of the movie on July 20, 2012 beginning at 12:05 a.m. 11. The exterior doors to the theater were lacking in any alarm system, interlocking

security systems, or any other security or alarm features which would have put Defendant's employees or security personnel on notice that someone had surreptitiously left the theater by the exterior door and had put the door in an open position which would facilitate a surreptitious and unlawful re-entry. 12. Upon information and belief Defendant did not have in place any security practices

or procedures, nor did it employ or adequately train any employee or security personnel to prevent or deter someone from surreptitiously and unlawfully entering or re-entering the theater through an unlocked and unalarmed door. 13. Upon information and belief, there was no system or procedure for the theater

personnel to survey or monitor the parking areas and external doors behind or to the sides of the theater. This failure to monitor those doors in any way made it possible for a person to surreptitiously and illegally enter or re-enter the theater without fear of interference, interruption or chance at being discovered, and to leave the door open for a period of time.
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14.

One of the people present at the midnight showing (hereafter the gunman) made a

surreptitious and illegal entry into the theater on at least one occasion through a door that was located at the right, front side of the screen in Auditorium 9. 15. The gunman, upon information and belief, purchased a ticket and entered the theater

initially through the regular theatre entrance. Later, after the theater lights were darkened and the screen projection began, the gunman left his seat and moved to an exterior door, located at the right, front of the movie screen, exiting to the parking area. 16. At some point, the gunman moved his car so that he was parked directly outside of

the exterior door to Auditorium 9. 17. While the screen projection continued in the darkened theater, the gunman propped

open the exterior door to Auditorium 9 and went to his car which he had earlier placed outside that exterior door. 18. As was the case with the other doors leading from the theatre to the outside

parking area, that door was unlocked, and had no alarm or other monitoring system to guard against the door being kept open or to warn that the door was open and remained opened for an extended period of time. 19. The gunman had sufficient time to transfer several weapons as well as ammunition at

or near this door without being discovered by any theater personnel. 20. The gunman had a virtual arsenal of weapons, including, but not limited to, a fully

loaded shotgun, an AR-15 assault rifle, one or more fully loaded, automatic Glock handguns, and several tear gas canisters. The gunman also retrieved and put on body armor and a gas mask. He also had significant amounts of ammunition, including a fully loaded "snail drum" for the assault rifle.
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21.

Given the arsenal of weapons described above, the gunman required and had the

time, without fear of monitoring by security personnel or theatre employees, to transport the weapons and ammunition from his car to inside the theater. 22. It was reasonably foreseeable by theatre personnel, or any person who wished to

make a secret and unauthorized entry into the theater, that a person could easily determine that the lack of security personnel and lack of any alarm on the door at the right front, by the screen of Auditorium 9, would allow them to leave the theater, and re-enter without fear of being discovered, interfered with, monitored or stopped. 23. The gunman made one or more trips from his car through the open exterior door of

Auditorium 9, bringing his arsenal and ammunition through that open door. Throughout that time, no employee or security personnel contacted him, deterred him, monitored him or stopped him from that re-entry. 24. The gunman's conduct in exiting the theater, parking his car, preparing for his

assault, and re-entering Auditorium 9 took place over an extended period of time. 25. Plaintiffs, Chichi and Derick Spruel, also attended the July 20, 2012 midnight

showing of "The Dark Knight Rises." Plaintiffs, Chichi and Derick Spruel, were one of many members of the public who purchased a ticket from Defendant. 26. Plaintiffs were seated in Auditorium 9 of the Century Aurora 16, in the 10th or 11th

row from the front, together with 2 friends, Munirih Gravelly and Jesse Childress. 27. Approximately 15-20 minutes after the beginning of the showing of the movie, the

gunman began his assault by throwing, what appeared to be a tear gas canister, from the right side of the screen to the left rear of the auditorium. The gunman then began firing into the audience.

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28.

During the assault, the gunman fired various firearms and shot many people. A

number of individuals in Auditorium 9, and at least one person in Auditorium 8, were struck by gunfire. 29. Plaintiff, Chichi Spruel, initially thought that someone was setting fireworks off in

the theatre, and turned to her husband, Derick Spruel, for confirmation. When she turned toward her husband she looked in front of the chair her husband was sitting in and saw that the person sitting in the seat in front of her husband was laying face up, with blood on his head, and had apparently been killed by the gunshots. She then realized that she had to get out of the line of fire and immediately lay down on the floor in front of her seat, and called 911. Her friend, Jesse Childress, was laying face down on the floor in a pool of blood, apparently killed by the gunshots. 30. Plaintiff, Derick Spruel, first saw and heard an object pass over his head and then

heard loud popping sounds from the rear of the theatre and saw flashes in the corner of the theatre. He saw his friend, Jesse Childress stand up and move in front of his other friend, Munirih Gravelly. At that point, Jesse Childress stumbled into his arms, and Mr. Spruel told everyone around him to get down. While Plaintiff, Derick Spruel, was lying on the floor he heard the man in front of him gurgling on his own blood, apparently in the throes of death. Immediately after hearing the man dying in front of him he heard a man yelling that his child was shot. He heard several types of gunfire at various times, ranging from what sounded like it was a from 9mm weapon to an AR-15 assault rifle. When Plaintiff, Derick Spruel, was finally able to stand up, he immediately reached down for Jesse Childress, and told him to get up. When he reached for him he could tell something was wrong, because he felt so heavy and it was hard to move him. When his eyes finally focused on Mr. Childress, he observed that he was lying in a pool of blood, not moving and had apparently been killed by the gunshots.
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31.

After the initial episode where the gunman threw the tear gas canister, the gunman

continued shooting people for many minutes. All through the incident, the movie continued to play, and the houselights remained very low or off. 32. There was no alarm activated during the many minutes while the gunman was

stockpiling his arsenal, and inside the theater shooting people, and no action was taken by theater employees to safely evacuate the many people left in Auditorium 9. 33. Plaintiffs, Chichi and Derick Spruel, lay helpless on the ground for many minutes,

while the gunman continued shooting people. 34. The gunman continued shooting throughout the Auditorium until eventually his

weapon jammed and the shooting stopped, and the gunman exited the auditorium, through the same door he used to enter, and sat in his car. 35. No security personnel or theatre employees intervened during the entirety of the

incident to assist or evacuate those who were injured by the gunman. 36. Even after the gunman left the theater and there was no further gunfire, no theater

personnel took any action to assist the injured that were still in Auditorium 9. The police entered the auditorium as soon as the gunman left the theatre. During the entirety of the time during the shooting, and following the arrival of police officers, the movie continued playing, and the house lights remained very low or off. 37. Plaintiff, Chichi Spruel, although not receiving any physical injuries herself, suffered

long term psychological injuries, which injuries have brought on physical symptoms. Her injuries include, but are not limited to, depression, anxiety, lack of ability to concentrate, flashbacks of the shooting and of seeing her friend lying in a pool of his own blood, insomnia, loss of appetite, constantly being fearful of her surroundings, negative impact on relations with her spouse,
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heightened emotions and general symptoms of post traumatic distress syndrome. She has undergone, and continues to undergo psychological counseling, and was unable to work for a number of months. She has incurred expenses for medical and psychological treatment, and will continue to incur such expenses, as well as damages due to reduction in her future income. 38. Plaintiff, Chichi Spruels, injuries have caused her extreme physical, mental and

emotional pain and suffering. These injuries are permanent in nature and she will suffer permanent disability from those injuries. 39. Plaintiff, Derick Spruel, although not receiving any physical injuries himself, suffered

long term psychological injuries, which injuries have brought on physical symptoms. His injuries include, but are not limited to symptoms of Post Traumatic Distress Syndrome, decrease in ability to concentrate, fear of being in public places, withdrawal from friends and interference with his relationship with his spouse. He has difficulty working because he worked closely with his friend, Jesse Childress, and every day at work he flashes on the shooting and grieves for his friend and suffers emotional distress when thinking that he and his wife could also have been killed that night. He has undergone, and continues to undergo psychological counseling, and has had to take leave from work in order to deal with the psychological issues. 40. Plaintiff, Derick Spruels, injuries have caused him extreme physical, mental and

emotional pain and suffering. These injuries are permanent in nature and he will suffer permanent disability from those injuries. FIRST CLAIM FOR RELIEF: PREMISES LIABILITY PURSUANT TO C.R.S. 13-21-115 41. extenso. Plaintiffs incorporate herein all of the allegations of paragraphs 1-40, as if set forth in

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42.

Defendant operated and maintained the theater, and is a "landowner" under the

definition of that term, as set forth in the Colorado Premises Liability Act (PLA), found at C.R.S. 13-21-115(1). 43. Plaintiffs, Chichi and Derick Spruel, were "invitees", under the definition of that

term as expressed in the PLA, specifically C.R.S. 13-21-115(5)(a), while attending this movie showing. 44. Defendant had a duty of reasonable care to protect Plaintiffs, and others like them,

against dangers and dangerous conditions of the premises of which Defendant actually knew or should have known, pursuant to C.R.S. 13-15-115(3)(c)(I). 45. Specifically, Defendant failed to comply with its duties to Plaintiffs and others like

them, by permitting dangers and dangerous conditions to exist on the premises, including, but not limited to: a. Failure to employ and have present, at the time of the showing of this movie, security guards, including, but not limited to, off-duty police officers, to protect against and reduce the risk of unlawful conduct that posed a risk of injury or death to patrons of the theatre; b. Failure to provide reasonable protection against surreptitious, unauthorized entry, without detection, into the darkened theater viewing areas; c. Failure to provide reasonable door entry security devices, including, but not limited to, automatic locking doors, alarms, warning signals and other such devices on the door located at the right, front of Auditorium 9; d. Failure to provide other reasonable security devices such as one-way security doors, exit doors interlocked with warning signals, alarms, light or other
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devices which would put personnel on notice of any surreptitious, unauthorized entry into the darkened theater viewing areas; e. Failure to develop, establish and institute adequate emergency or first-aid response and evacuation plans and procedures for patrons in the theater in the event circumstances called for such procedures; f. Failure to properly train employees in emergency, crisis and first-aid response and evacuation procedures; g. Failure to properly train employees or provide reasonable surveillance procedures including, but not limited to, surveillance devices, monitors, cameras and human surveillance or monitoring of suspicious activity. 46. Defendant knew or should have known of the dangers and risks caused by its failures

as noted above. 47. Defendant breached its duties as a landowner under the PLA by its failures as noted

above, thereby allowing a dangerous condition to exist, and/or by creating a dangerous condition on its premises. 48. As a direct and proximate result of these dangerous conditions, Plaintiffs, Chichi and

Derick Spruel, were severely injured and suffered non-economic damages, losses and injuries, including extreme physical, mental and emotional pain and suffering, emotional distress, impairment and/or loss of enjoyment of life, loss of consortium, fear and embarrassment. These damages are recoverable by Plaintiffs pursuant to C.R.S. 13-21-203. 49. As a direct and proximate result of these dangerous conditions, Plaintiff, Chichi

Spruel, suffered economic damages, losses and injuries, including medical expenses, lost wages

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(past and future), lost economic opportunities (past and future), out-of-pocket expenses, and counseling expenses. 50. As a direct and proximate result of these dangerous conditions, Plaintiff, Derick

Spruel, suffered economic damages, losses and injuries, including medical expenses, out-of-pocket expenses, and counseling expenses. SECOND CLAIM FOR RELIEF NEGLIGENCE 51. extenso. 52. Defendant had a duty to exercise reasonable care to provide for the safety and Plaintiffs incorporate herein all of the allegations of paragraphs 1-50, as if set forth in

security of its patrons. 53. Defendant violated the duty of reasonable care it owed its patrons in the following,

but not limited to the following, ways: a. Failure to employ and have present at the time of the showing of this movie security guards (including, but not limited to, off-duty law enforcement officers) to protect against and reduce the risk of unlawful conduct that posed a risk of injury or death to patrons; b. Failure to provide reasonable protection against surreptitious, unauthorized entry into the darkened theater viewing areas; c. Failure to provide reasonable door entry security devices, including, but not limited to, automatic locking doors, alarms, warning signals and other such devices on the door located the right, front of Auditorium 9;

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Failure to provide other reasonable security devices such as one-way security doors, exit doors interlocked with warning signals, alarms, light or other devices which would put personnel on notice of any surreptitious, unauthorized entry into the darkened theater viewing areas;

e.

Failure to develop, establish and institute adequate emergency or first-aid response and evacuation plans and procedures for patrons in the theater in the event circumstances c a l l e d for such procedures;

f.

Failure to properly train employees in emergency, crisis and first-aid response and evacuation procedures;

g.

Failure to properly train employees or provide reasonable surveillance procedures including, but not limited to, surveillance devices, monitors, cameras and human monitoring procedures.

54.

As a direct and proximate result of Defendant's negligent conduct, Plaintiffs Chichi

Spruel and Derick Spruel suffered the injuries, damages and losses set forth in paragraphs 29, 30, 37, 38, 39 and 40 of this Complaint as if set forth fully herein. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendant in an amount that will fully and fairly compensate them for damages, losses and injuries, both past and future. Plaintiffs also request judgment in their favor for pre-judgment and post-judgment interest as provided by law, for costs, attorney's fees, expert witness expenses and for such other and further relief as the Court deems proper. PLAINTIFF REQUESTS THAT ALL ISSUES BE TRIED TO A JURY.

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Respectfully submitted this 9th day of January 2013. DAVIDOVICH LAW FIRM, LLC

By:

s/Nathan Davidovich Nathan Davidovich 219 So. Holly St. Denver, CO 80246 Tel: 303-825-5529 Fax: 303-265-9797 Email: nathandavidovich@talk-law.com Mailing Address: 11629 E. Florida Avenue Aurora, CO 80012

ATTORNEYS FOR PLAINTIFF Address of Plaintiffs: ChiChi and Derick Spruel 24708 E. Florida Ave. Aurora, CO 80018

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv-00045 CHICHI SPRUEL and DERICK SPRUEL, Plaintiffs, vs. CINEMARK, USA, INC., d/b/a CENTURY AURORA 16, Defendant.

NOTICE OF RELATED CASES PURSUANT TO D.C.COLO. LCIVR 7.5

Plaintiffs, ChiChi Spruel and Derick Spruel, by and through their attorney, NATHAN DAVIDOVICH, hereby submit their Notice of Related Cases pursuant to D.C. Colo. LcivR 7.5 as follows: 1. On January 9, 2013, this action was filed in the United States District Court for

the District of Colorado. 2. It is reasonably believed that this action is related to Denise Traynom and

Brandon Axelrod v. Cinemark, USA, Inc. d/b/a Century Aurora 16, 1:12-cv-02514; Joshua Nowlan v. Cinemark, USA, Inc. d/b/a Century Aurora 16; 1:12-cv-02517; Gregory and Rena Medek v. Cinemark, USA, Inc. d/b/a Century Aurora 16, 1:12-cv-2705; and Jerri Jackson v.Cinemark, USA, Inc. d/b/a Century Aurora 16, 1:12-cv-2704; Mary Theresa Hoover v.Cinemark, USA, Inc. d/b/a Century Aurora 16, 1: 12-cv-2706; Dion Rosborough, Ryan Lumba, Tony Briscoe, Jon Boik, and Louis Duran v. Cinemark, USA, Inc. d/b/a Century Aurora

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16, 12-cv-02687; Ian Sullivan v. Cinemark, USA, Inc., d/b/a Century Aurora 16, 1:12-cv-02900. These cases were filed in the United States District Court for the District of Colorado. 3. law and fact. Dated this 9th day of January, 2013. DAVIDOVICH LAW FIRM, LLC By: s/Nathan Davidovich Nathan Davidovich 219 So. Holly St. Denver, CO 80246 Tel: 303-825-5529 Fax: 303-265-9797 Email: nathandavidovich@talk-law.com Mailing Address: 11629 E. Florida Avenue Aurora, CO 80012 These cases have at least one party in common and have common questions of

ATTORNEYS FOR PLAINTIFF

Pursuant to D.C.Colo. LCivR, 5.6, a printed copy of this document with original signatures shall be maintained by the filing party and made available for inspection by other parties or the court upon request

Case 1:13-cv-00045-RBJ-MEH Document 1-2 Filed 01/09/13 USDC Colorado Page 1 of 2

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

District of Colorado __________ District of __________

CHICHI SPRUEL and DERICK SPRUEL
Plaintiff

v.
CINEMARK, USA, INC., d/b/a CENTURY AURORA 16,
Defendant

) ) ) ) ) ) )

Civil Action No. 13-cv-00045

SUMMONS IN A CIVIL ACTION To: (Defendants name and address) Cinemark, USA, Inc., d/b/a Century Aurora 16; 3900 Dallas Parkway, Suite 500,
Plano, TX 75093

A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Nathan Davidovich, 219 So. Holly St.,Denver, CO 80246
Mailing Address: 11629 E. Florida Avenue, Aurora, CO 80012 Email: nathandavidovich@talk-law.com Tel: 303-825-5529; Fax: 303-265-9797

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:

01/09/2013
Signature of Clerk or Deputy Clerk

Case 1:13-cv-00045-RBJ-MEH Document 1-2 Filed 01/09/13 USDC Colorado Page 2 of 2

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 13-cv-00045 PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) .

I personally served the summons on the individual at (place) on (date) I left the summons at the individuals residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individuals last known address; or , who is on (date) I returned the summons unexecuted because Other (specify): . ; or ; or ; or

I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

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