Subject: Re: Upcoming FCDL Board meeting From: "Robert A. Neinast" <neinast@att.net> Date: Wed, 03 Dec 2008 11:55:48 -0500 To: Marilyn Steiner <msteiner@fcdlibrary.org> Marilyn Steiner wrote: > The Board hasn't made a decision yet about your > request. There was some discussion by the Board regarding > safety issues and they asked that I call the county > prosecutor for advice. I am still waiting to hear back > from Mr. Hart. Here are the (unapproved as yet) minutes > from the November Board meeting: Heh. That's actually rather amusing. When I was deciding what to say, and fit it into 10 minutes, I had to make the choice between stressing the decorum argument or the safety argument. Since you'd reported that the Board kept the rule based on decorum, that's what I decided to go for. I hope you don't mind if I give you more safety information in this email; perhaps you could share at least some of it with the Board. As before, it represent a fair bit of research I've done on the issue. I've placed a bit of information on bare feet and safety at <http://www.ohiobarefoothikers.org/osf/safety.htm>. It references 16 different studies ranging from the puncture-resistance of skin, to athlete's foot, to the damage that high-heels do to knee joints. I really don't think the library should have to worry about safety. Besides, when it comes to making safety standards, doesn't the expertise for that reside in a Health Department, not a library board? But I realize that under the rubric of safety may also sit concerns about liability. I really don't see that that is something the library needs to worry about. I've collected (more research!) all the negligent injury court cases I could find in which the choice of footwear was in some fashion implicated in the injury. That list is here: <http://www.ahcuah.com/injury>. Patrons are much more likely to injure themselves from tripping on their high-heels. Even flip-flops appear to be especially dangerous when it is raining. Yes, one could argue that the relative paucity of barefoot cases is simply because so few people go barefoot; well, that also suggests that any likelihood of an injury is that much lower. But in reality, accidents happen, and various pieces of footwear may or may not contribute in different ways. I see nothing that says that bare feet are more or less dangerous. >From a legal standpoint (of course, you would want to confirm this with Mr. Hart), library patrons are what is called "invitees". The legal duty that entities such as store owners or the library have to invitees is called "the duty of ordinary care." That duty is the duty of maintaining premises in a reasonably safe condition so that customers are not unnecessarily and unreasonably exposed to danger. But the business (or library) is not an insurer of the patron's safety against any danger. A patron is expected to protect him- or herself against the normal hazards. And even if a barefooter was somehow injured, the library has no duty to protect another from his or her own folly (Keeton, Prosser and Keeton on Torts (5ed. 1984) 199). Even if somehow you were sued by a barefooted patron (which, again, is much less probable than being sued by a shod patron), the issue of comparative negligence would come into play. Under Ohio law, if the injured person is considered more than 50% responsible for the injury, they collect nothing. I have a hard time believing that any court would say that an injured barefooted patron was less than 50% responsible. An even stronger issue, primary assumption of the risk, might even apply. There might even be an issue that, by not allowing a person to select their (lack of) footwear themselves, the library may be taking on a legal duty that they might not otherwise have. In particular, I am much more concerned that I might get injured while wearing footwear--without the immediately tactile feedback I find myself much clumsier. And, in fact, I have severely injured my knee while wearing flip-flops, when my foot did not move the way I expected. But there is a legal principle that, when an entity prevents a person from protecting themselves, that entity assumes the duty to protect that person. Does the library really want to get in the business of evaluating which sorts of footwear is sufficiently safe? But if they regulate bare feet for "safety reasons," there is the possibility that that is what you might get into. (Mr. Hart may have a different take on this.) There is also the issue of sovereign immunity. The legislature keeps flipping back and forth on this one, so I cannot claim to know exactly where things stand at the moment. However, state entities often are immune from suit unless their actions were wanton or wilfull misconduct. Mr. Hart will know the exact status here regarding libraries. Finally, I'd like to address the Columbus Library lawsuit. First, let me make clear that the Federal Court there said that libraries were not violating the First Amendment by a barefoot restriction--it did not say that libraries must ban bare feet (I've heard that misunderstanding from a few other librarians). Next, from my point of view, it was a results-oriented decision: because of the issue, the judges had pretty much made up their minds and then picked and chose those things in the case that supported that decision. (Note that I am not claiming deliberate bias here, or anything unprofessional, just normal human preconceptions.) All of the filed documents in the case, including all the briefs, are online at <http://www.ahcuah.com/lawsuit/index.htm> in case you wanted to look at any of them, or have Mr. Hart look at them. Those documents have a lot of information that never made it into any final court decision (which is probably what Mr. Hart will be looking at). In particular, the Court noted some minor risks, and then called them "a significant health and safety risk to individual barefoot patrons." Moreover, they accepted them as risks without any evidence that they were risks in the first place. (For example, the Court cited feces on a restroom floor as a risk, but there was no evidence that they were anything other than just plain old yucky.) In another two incidents, two separate people got their foot caught under doors: one person wearing shoes, and one person barefooted. This was cited by the Court as evidence that going barefoot was dangerous (even though it could just have easily said that being shod was dangerous--of course, it was the door that was dangerous and needed to be fixed). Basically, the same reasoning could have been applied to shoe-wearing and banned that, too. The funny thing is, other research I've done indicates that the whole "No Shirt, No Shoes, No Service" thing is relatively recent. It appears to have been a reaction in the late-60s, early-70s to hippies, and a way to keep hippies out of stores. As it says in "The Movement and the Sixties," by Terry H. Anderson (Oxford University Press, 1985): Citizens reacted to the hippie threat in many ways. Country-western singer Merle Haggard condemned the counterculture in his hit tune, "Okie from Muskogee," and singer Anita Bryant held "rallies for decency." Southern Methodist University officials attempted to stop mail posted to the campus address of "Notes from the Underground," while a group of alumni and students threatened violence if the "filthy sheet causing embarrassment" did not stop publication. Businessmen across the country put up door signs, "No Shirt, No Shoes, No Service," while Marc's Big Boy in Milwaukee hired a cop to make sure that no one with beads, beards, flowers, sandals, long hair, or funny glasses was allowed inside to buy a double hamburger. Plenty of folks (moreso in the South, and, I agree, mostly children) went barefoot before that time. It is only later that, with the signs still persisting, that folks forgot their origins and assumed that they had something to do with safety. It might be interesting to look to see when the Fairfield County Library first enacted its shoe rule. I'd be surprised if it was before 1970 or so (if even that early). Anyways, I apologize for the length of this (even worse, I could probably go on even longer with little effort :-) ). I hope I have provided some information that can assist the Board in coming to the correct conclusion. Many thanks for your time and efforts, Bob -- Robert A. Neinast Pickerington, OH