Marek v. Southern Enterprises, Inc.
99 S.W.2d 594 (1936)
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Rule of Law:
The proprietor of a place of public amusement owes a duty of ordinary care to protect patrons from injury caused by the acts of third parties, a duty which arises once the proprietor has knowledge of the dangerous conduct and sufficient time to prevent the injury.
Facts:
- On New Year's Eve 1931, Mrs. Marek was a paying patron at the Palace Theatre, owned by Southern Enterprises, Inc.
- Shortly after she was seated, other unidentified patrons began throwing firecrackers and torpedoes throughout the auditorium.
- This activity continued for several minutes while the theatre remained in practical darkness.
- During this time, the theatre's management and employees did not turn on the lights, make any announcements, or otherwise intervene to stop the conduct.
- A torpedo or firecracker exploded near Mrs. Marek's head, causing severe injuries, including the loss of hearing in one ear.
Procedural Posture:
- Mrs. Marek (plaintiff) sued Southern Enterprises, Inc. (defendant) in a Texas trial court for personal injuries.
- The trial court entered a judgment in favor of Marek based on a jury verdict.
- Southern Enterprises, Inc. appealed to the Court of Civil Appeals, an intermediate appellate court.
- The Court of Civil Appeals reversed the trial court's judgment on the grounds of improper argument by Marek's attorney.
- Both Marek and Southern Enterprises, Inc. filed applications for writs of error to the Commission of Appeals (whose opinion was adopted by the Supreme Court of Texas, the state's highest court).
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Issue:
Does the proprietor of a place of public amusement have a duty to exercise ordinary care to protect its patrons from injuries caused by the unlawful acts of other patrons after the proprietor becomes aware of the dangerous conduct?
Opinions:
Majority - Hickman, Commissioner
Yes, the proprietor of a place of public amusement owes a duty to exercise ordinary care to protect patrons from the acts of third parties once it has knowledge of the dangerous conduct. The relationship of proprietor and patron gives rise to a duty to exercise ordinary care for patron safety. Even if the proprietor is not initially negligent, if a danger arises and the proprietor has time to prevent injury, it must exercise ordinary care to do so. The fact that the third parties' acts were unlawful does not relieve the proprietor of this duty. The court reasoned that a jury could reasonably conclude from common experience that had the theatre turned on the lights and admonished the wrongdoers, they would have ceased their conduct, thereby preventing the plaintiff's injury.
Analysis:
This case establishes that a business owner's duty to patrons under premises liability extends beyond maintaining safe physical conditions to actively protecting them from the foreseeable harmful acts of third parties. The decision clarifies that once an owner has notice of dangerous conduct and an opportunity to act, a failure to take reasonable steps (like turning on lights or issuing a warning) can constitute negligence. This precedent holds businesses accountable for managing the active behavior of their customers, not just passive property defects, and has become a foundational principle in cases involving injuries caused by one patron to another.
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