## Facts

- Lucille Marek attended a New Year’s Eve show at a Dallas theater operated by Southern Enterprises, Inc.
- Near midnight, audience members repeatedly discharged firecrackers inside the darkened theater.
- The lighting remained off during the disturbance, and the individuals throwing firecrackers were not identified.
- A firecracker exploded close to Marek’s head, causing serious injury, including partial deafness in one ear.
- Marek alleged the theater and its employees failed to use ordinary care after the disorder began, including failing to identify and expel or restrain the offenders.
- Evidence indicated multiple theater employees were present during the incident; several were not called as witnesses at trial, supporting an inference their testimony would not favor the theater.

## Issues

1. Whether the evidence permitted a jury to find that the theater operator breached its duty of ordinary care to protect a patron from foreseeable harm caused by third-party misconduct after the danger became apparent.
2. Whether causation and negligence were for the jury despite the tortfeasors being unidentified.
3. Whether the intermediate appellate court erred by reversing solely based on allegedly improper jury argument by plaintiff’s counsel.
4. Whether the case should be remanded for the intermediate appellate court to address issues it did not reach, including excessiveness of damages.

## Decision

- The Texas Supreme Court reversed the judgment of the court of civil appeals.
- The Court held the evidence was sufficient to submit negligence and proximate cause to the jury based on the theater’s alleged failure to take reasonable protective measures once the firecracker danger was known or should have been known.
- The Court rejected reversal based solely on the challenged jury argument.
- The Court remanded to the court of civil appeals with instructions to consider unresolved appellate issues, including whether the damage award was excessive, and to enter the appropriate disposition.

## Legal Principles

- Operators of places of public amusement owe patrons a duty of ordinary care and are not insurers of safety.
- A proprietor may be liable for injuries caused by third parties when the proprietor knows or should know of dangerous conduct and fails to take reasonable steps to control it or protect invitees.
- The inability to identify the specific wrongdoers does not bar liability when the asserted negligence is the proprietor’s unreasonable response to an ongoing, apparent danger.
- In an emergency created by third-party conduct, the standard remains ordinary care under the circumstances; whether the response was reasonable is generally a jury question when evidence supports competing inferences.
- A factfinder may draw an adverse inference from a party’s failure to call available employee-witnesses with material knowledge.
- Improper jury argument warrants reversal only when it likely caused an improper verdict; reversal is not automatic.

## Conclusion

The court held that repeated firecracker explosions in a darkened, crowded theater could make the risk to patrons foreseeable, allowing a jury to find the operator negligent for failing to take reasonable protective action, and it reversed an appellate reversal based solely on jury argument while remanding for consideration of remaining issues such as damages.


Marek v. S. Enters., Inc., 99 S.W.2d 594 (Tex. 1936)