Subject: Re: Upcoming FCDL Board meeting
From: "Robert A. Neinast" <>
Date: Wed, 03 Dec 2008 11:55:48 -0500
To: Marilyn Steiner <>

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


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:


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

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


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,

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

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,
Robert A. Neinast
Pickerington, OH