COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH
ROBERT NEINAST
Plaintiff,v.BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY,
Defendants.
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Case No. 09 CV 0657
Judge Chris Martin
PLAINTIFF’S REPLY MEMORANDUM TO DEFENDANT’S MEMO CONTRA/MOTION TO DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Introduction
For some reason, the Library has styled what would normally be a Memorandum Contra Plaintiff’s Motion for Summary Judgment a “Motion to Deny Plaintiff’s Motion for Summary Judgment.” Since the Order of October 26, 2009, called for a Memorandum Contra, we will so consider it in this Reply.
The Library has failed to respond to Neinast’ Motion for Summary Judgment with specific facts showing that there is a genuine issue for trial and has therefore failed to meet its burden.
Neinast’s Motion for Summary Judgment should be granted.
The Burden of Support Regarding Summary Judgment
The Library correctly stated some of the criteria for deciding a motion for summary judgment:
Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.
Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 65-66. However, it goes beyond that. Civ.R. 56(E) lays out the burden of production for the moving and nonmoving parties:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, explains this in more detail:
Accordingly, we hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
Applying those criteria to the instant case, it was Neinast’s burden to specifically point to some evidence, in this case, affidavits and interrogatories, which affirmatively demonstrated that the Library has no evidence to support the Library’s claims. After Neinast did so, the Library had a reciprocal burden to set forth specific facts, again using such things as affidavits, etc., showing that there is a genuine issue for trial, and if the Library did not do so, summary judgment should be entered against it, if appropriate.
Argument
The Library Did Not Meet Its Reciprocal Burden
The Library has failed to meet its burden. Neinast pointed to numerous places in the record that show that the Library has no justification for its shoe rule. In response, the Library has pointed to nothing in the record showing that there is a genuine issue for trial. Instead, the Library relied upon mere allegations and unsupported conclusions.
For instance, Neinast pointed out from the record that the Library did not have a shoe rule for over 130 years (Mot. for Summ. J., p. 5),1 and then argued that, had fiscal responsibility really been a valid issue, the Library would have enacted a shoe rule long before then. If the Library disagrees, Civ.R. 56(E) requires that it point to the record to provide evidence to the contrary. Instead, it merely asserted that Neinast could know nothing about it since he did not “personally monitor the progress of the library for the same 130 years.” Neinast was not required to do so. The burden was on the Library at this point.
But the real crux of this matter is the Library’s asserted justification for its shoe rule: it now says that the shoe rule is entirely a question of fiscal responsibility and reducing and eliminating any risks in the Library.2 Neinast pointed to numerous places in the record that showed that there was no risk or impact on fiscal integrity, only to have the Library respond with some discussion, but point to no specific facts. This included:
Neinast pointed out that the Library’s insurance policy contains no exclusion to coverage if it allows barefooted patrons. If there had been such an exclusion, then it would have been fiscally responsible for the Library to exclude barefooted patrons. But there is not, and the Library would be covered the same whether there was an injury to a patron who was barefooted, or a patron wearing high heels, or a patron wearing flip-flops. The burden was on the Library to show that there really is an issue of material fact here. If there is some evidence that its insurance carrier would not pay for such an injury, or that rates would be raised for a barefooted injury differently than for a high-heeled injury, it was the Library’s burden to produce an affidavit (or other allowed items) demonstrating that. It did not do so.
Neinast pointed out that the Library contained no hazards to barefooted patrons (and, of course, if there are no hazards, there is no impact on fiscal integrity). He did so by pointing to items in the record, including his own personal observation of the Library (based upon his own extensive experience in going barefooted outdoors and in buildings and in recognizing hazards of that sort) and the Library’s own statements in its Amended Answers to the Interrogatories. In those Answers, it was unaware of any defects in its grounds and knew of no conditions in its buildings that would be a hazard to a barefooted person but not a shod one. See Answers to Interrogatories ¶¶ 9, 10. In addition, the Library allows children to sit on its floors. See Ans. to Int. ¶ 14 and the second attachment to Neinast’s Memo Contra Library’s Motion to Dismiss. The burden was now on the Library to produce an affidavit (or other allowed items) showing that there were hazards. It was incumbent upon it to point out what it thought were hazards to barefooted patrons, and then also demonstrate that those supposed hazards actually were hazards. It did not do so. Instead, it just made the mere allegation that it was irresponsible even to raise the issue.
Neinast pointed out that bare feet are no less hazardous than any of the other sorts of footwear that the Library allows in its buildings. He did so by pointing to items in the record, including his essay regarding safety issues of bare feet,3 and an extensive list of lawsuits in which businesses were sued because of injuries to patrons that were blamed on high-heels, sandals, and flip-flops. See Neinast Affidavit Exhibit 5. If the Library wished to counter this, then the burden had shifted onto the Library to produce an affidavit (or other allowed items) to show that barefooted patrons were in more danger in a library environment than other patrons. It could have produced scientific studies; it could have consulted safety experts. It did not do so. It failed to meet its burden.
Neinast pointed to the record to show that the Library never had a shoe rule until 1997, and argued that fiscal integrity was not impacted by bare feet before then. If the Library wished to counter this, then the burden was upon it. If the 1997 shoe rule was created to protect fiscal integrity because of a recent barefooted injury to a patron, then it was the Library’s burden to produce a record of that injury. It did not do so.
The Library claims that it maintained the shoe rule because “it is the fiscal responsibility of the Library to, as much as possible, reduce and eliminate any risks which potentially produce costly liability.”4 (Ans. to Int. Exhibit 5, January 20, 2009 Board meeting minutes.) Neinast properly pointed to items in the record that showed that allowing barefooted patrons does not impact the fiscal integrity of the Library in the least, and he pointed to items in the record that showed that excluding barefooted patrons was arbitrary and capricious. To avoid summary judgment, the Library then had the reciprocal burden of demonstrating, with appropriate items, that the shoe rule really was related to its fiscal integrity. It could have documented (using affidavits and the like) what it thought were hazards on its floor (thought this would have contradicted its earlier answers). It could have documented that what were claimed as hazards truly were hazards to the barefooted (but not to, for instance, little children sitting and playing on its floors). It could have documented that its insurance rates would have increased if a barefooted person was injured (but rates would not have increased if it had been a high-heeled person). It could have documented the physical defects on its grounds (including buildings) that were hazards. But it did none of these. Instead, it rested on mere unsupported allegations. It rested upon myth, ignorance, and prejudice. All of those are insufficient to oppose a motion for summary judgment. Affidavits and the like are required by Civ.R. 56.
As a result, this Court has no basis to conclude that there are any hazards to barefooted patrons in the Library, no basis to conclude that barefooted patrons affect the fiscal integrity of the Library, and no basis to conclude that the shoe rule contributes to the proper operation and management of the Library. Summary judgment for Neinast is appropriate.
Neinast’s Affidavit Was Proper
The Library seems to think that a number of items in Neinast’s affidavit were insufficient. This is not the case.
The items in the affidavit were all based upon Neinast’s personal knowledge. As stated there, he has extensive experience going barefoot and discovering the hazards of doing so. As stated there, he has gone into myriads of buildings, including many locations clearly more hazardous than a library, such as grocery stores and hardware stores. He has hiked over 1,000 miles barefooted since January 2006.5 All that experience has taught him a lot, and he therefore knows how to recognize the sorts of conditions that might be hazardous to a barefooted person, just as a person who wears high heels knows how to recognize the sorts of conditions that might be hazardous to the high-heeled (such as heater grates that heels could fall into, or steps that heels could get caught on). As stated in his affidavit, Neinast examined the Library looking for hazards to the barefooted. There is no reason to discount either his knowledge or his statements.
The Library also seems to think that the papers Neinast referenced were “medical treatises.” They are not. They are the published results of scientific studies or experiments. Neinast’s doctorate in physics has given him specific training in reading and evaluating such published results. He can most definitely determine whether the studies used the sorts of scientific methods that would demonstrate their validity, such as using proper statistical methods and data selection. He can most definitely (and did) do the research to compare the results of different studies and evaluate their trustworthiness.
For instance, consider the study: “Soft tissue and bone infections from puncture wounds in children”, by Terese J. Laughlin, David G. Armstrong, Joseph Caporusso and Lawrence A. Lavery. The Western Journal of Medicine, Vol. 166, No. 2, pp. 126-128 (February, 1997). The study reports that, if a nail or other sharp object punctures the foot, it matters whether the person was shod or not. When the person is wearing a shoe like a tennis shoe (generally with a soft rubber sole), it is much more likely that that person will get a bone infection, caused by the Pseudomonas aeruginosa that resides in the shoe. Neinast’s scientific training has allowed him to determine that this is a proper scientific result. In addition, he can relate that result to his extensive barefooting experience, since he has more than once experienced the feeling of starting to step on a sharp twig, only to immediately feel it and pull back, thus preventing injury. With shoes on, by the time any nail is felt, it has already penetrated the sole of the shoe and is in the process of being driven even deeper towards and possibly into the bone.
Furthermore, it does not take expert testimony to establish the above results. Once the validity of the science is established, any trier of fact, any layperson, can easily understand the results of the study. This is not like a medical malpractice suit, in which expert testimony is required to establish whether the proper standard of care was exercised and what the state of the art is for a particular medical procedure. Any person can understand the results of these studies and relate them to whether there are hazards present in the Library that justify its shoe rule.
Regardless, in an exercise of caution, we have included in this Reply an affidavit from a medical doctor, Stanley Sack, that verifies the conclusions of Neinast. See attachment. Dr. Sack also agrees that: “The conditions in restrooms, such as urine or feces on the floor, pose little risk to the barefooted. Intact human skin does not allow either to penetrate, and urine is generally sterile.”
It is ironic that the Library objects to Neinast’s knowledge and experience, yet the Library has no expertise itself. The Library has not been able to produce a single piece of evidence to back up its claim that a shoe rule is part of caring for the fiscal responsibility of the Library, or that there are any hazards related to that fiscal responsibility. The Library has not been able to do so despite its being part of the Library’s burden in responding to a motion for summary judgment. The Library has made no mention of consulting with any risk management experts. The Board of the Library contains nobody who can properly determine that barefooted patrons entail no risk. The Board even completely ignored all of the material that Neinast went to great effort to provide to it. Instead, the Library shifted its rationale from “decorum” to some vague statement about fiscal responsibility, without even knowing how bare feet might impact its fiscal integrity.
The Library also claims that Neinast’s arguments about its fiscal risk, liability insurance, and statutory immunity are “irresponsible.” Since Neinast properly demonstrated that there is no fiscal risk, how can it be irresponsible? Furthermore, if there really is a risk, how irresponsible is the Library being in allowing little children to sit on its hazardous floors? How irresponsible is the Library being in allowing high-heeled patrons on its floors, where those heels could get caught on rug edges, or slip on the entryway tile? How irresponsible is the Library being in allowing patrons to wear flip-flops (most of the flip-flop injury lawsuits were from customers coming in from the rain and slipping on entryway tiles)?
The Library enacted and maintained its shoe rule without having any idea about whether bare feet really were dangerous or not. Instead, it simply assumed the danger, and ignored any data that came its way that contradicted the myth it wanted to believe in. Such is not a good example of rulemaking. Such is not sufficient to withstand a motion for summary judgment.
The Shoe Rule Violates Neinast’s Personal Liberty
Neinast also established, through his affidavit and the interrogatories as required by Civ. R. 56, that the Library’s shoe rule is arbitrary and capricious. The Library could just as easily, if concerned about fiscal integrity, have banned high heels or flip-flops or sandals or just about any other kind of shoe. The Library responded with nothing appropriate to its burden in countering a properly supported motion for summary judgment. There is no evidence of any sort of risk peculiar to bare feet in the Library, just mere unsupported doubt expressed by the Library.
The Library also did not try to counter Neinast’s legal argument regarding the fact that regulations protecting a person from what is considered that person’s own folly does not fall within the police power, that is, the power to make regulations. The Library thinks that all it has to do is claim some supposed risk and then say that regulation is necessary to protect its fiscal integrity. Such an argument would render this constitutional right a nullity, for one can always claim some risk, however small, with any activity at all.
Conclusion
The Library has failed to meet its burden in opposing a motion for summary judgment. As the nonmoving party, it had “a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.” It has not set forth any facts at all, aside from its affidavit from Ms. Steiner saying that the shoe rule was enacted for reasons of fiscal responsibility, but provided no support at all regarding how the shoe rule might do so.
The only evidence before this Court are the items, properly pointed out in affidavits and interrogatories by Neinast, that show that bare feet are perfectly safe in the Fairfield County District Library. Those items show no hazards at the Library. Those items show that there is no insurance reason to require shoes. Those items show that the Library’s fears of fiscal difficulty are ungrounded due to statutory immunity. Even if those items are interpreted in the Library’s favor, there is no way that the shoe rule is justified as part of the proper operation and management of the Fairfield County District Library.
Summary judgment should be granted in Neinast’s favor.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply Memorandum was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street – Suite 400, Lancaster, OH, 43130, this 16th day of November, 2009.
_______________________
Robert A. Neinast
Plaintiff, pro se
Footnotes:
1. There is a typo in this paragraph of the Motion for Summary Judgment, saying that the shoe rule was first enacted in 2007. It was first enacted in 1997. [Back]
2. The Library seems to be backing away from the “decorum” excuse. It should be pointed out that the record demonstrates that Ms. Steiner specifically emailed Neinast that “decorum” was the reason for originally keeping the shoe rule, and it was only after the Board heard from Roy Hart that it switched to the “fiscal responsibility” reason. See Neinast Affidavit Exhibit 3 and Answers to Interrogatories, ¶¶ 2, 3 and Exhibits 5, 6. The affidavit of Ms. Steiner attached to Defendant’s Motion to Deny ignores this, and while it correctly quotes from the January board meeting, at the February board meeting, the shoe rule was once again described as a “dress code.” [Back]
3. There can be no doubt that these items are properly in the record. They are copies of the essay and scientific journal articles that Neinast sent to Ms. Steiner and that she shared with the Board. Ans. to Int. ¶ 4. Their applicability will be discussed below. [Back]
4. It must be noted that risk can be reduced or eliminated merely by reducing the number of patrons. The Library could just have easily reduced its risk by prohibiting high-heeled patrons, or sandaled patrons. In fact, it could have reduced its risk to zero by prohibiting all patrons. But then it would be failing in its duty to provide library services, by arbitrarily excluding the high-heeled or sandaled. And it fails in its duty to provide library services by similarly arbitrarily excluding barefooted patrons. [Back]
5. While Neinast’s affidavit says 950 miles, his “Walk With The Ancients,” mentioned in his Memo Contra, put him over the 1,000 mile mark. [Back]