COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH
ROBERT A. NEINAST
Plaintiff,v.BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY,
Defendant.
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Case No. 09 CV 0657
Judge Martin
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO AMEND ITS ANSWER TO PLAINTIFF'S FIRST SET OF INTERROGATORIES
Naturally, Plaintiff would prefer that Defendant, the Board of Trustees of the Fairfield County District Library, provide straightforward answers to those questions that they originally objected to. However, their motion to change those objections to the answer “Unknown” is the second best thing.
Contrary to Defendant’s Memorandum Contra Plaintiff’s Motion to Compel Discovery, none of the Interrogatories under contention requires that Defendant “guess as to what may be inside the head of any given patron on any given day and in any given situation.” For instance, Interrogatory No. 13 asks:
Do you contend that bare feet on a patron are in any way disruptive of the Library environment, or represent a danger to any other patrons? If so, in what way? And if so, how are flip-flops not equally disruptive or dangerous?
The Board of Trustees has been running the Library for over 130 years. They have a Director who is presumably well-experienced in running a library and has seen all sorts of situations, some of which cause disruption and others which do not. They have probably seen it all, and should be quite aware of the sorts of situations that do and do not cause disruptions to their Library environment. All it takes is common lifetime experience. Clearly, bare feet do not cause disruptions, since Neinast used the Library barefoot without disruption, and was not even noticed in some instances. Yet, the Library say that the answer to this question is “Unknown.” This says that, contrary to expectations, they do not have sufficient knowledge of running a Library to be able to tell if banning bare feet is part of the proper operation and management of the library.
But it is the proposed answer of “Unknown” to Interrogatories Nos. 16, 17, 18, and 19 that highlights this issue. For example, Interrogatory No. 17 asks:
Is it possible for a patron wearing high-heeled shoes to catch one of those heels in the carpeting, to twist his or her ankle due to the height of the heel and/or some minor defect in the floor of the Library, or to otherwise injure him- or herselves while in the Library? If so, is it your contention that proper operation and management of the Library would include making a rule that banned high heels? And if so, in what way?
First, it is a bit disingenuous to say that it is “Unknown” whether a high-heeled patron could be injured as a result of wearing those high heels. There are any number of injury lawsuits over that very issue. See, e.g., Lovell v. Hawks, Lorain App. No. 99CA007425 (Lorain Cty., Ohio, 2000), Mills v. MMM Carpets, Inc., 1 Cal. App. 4th 83, 1 Cal. Rptr. 2d 813 (Cal.App.Dist.6 1991), Christine Burns v. Schnuck Markets, 719 S.W.2d 499 (Mo.App.Div.3 1986). Attachment 5 to Neinast’s Affidavit contains many other such cases. These questions have nothing to do with “guess[ing] as to what may be inside the head of any given patron on any given day and in any given situation.” The other Interrogatories ask about other situations, and ask whether rules to prohibit those situations would be within “the proper operation and management of the Library.”
The Library wants to change its answers to those Interrogatories to say that it does not know whether such rules are within the proper operation and management of the Library. As detailed in Neinast’s Motion for Summary Judgment, rulemaking is an unconstitutional usurpation of the legislative function unless the General Assembly has provided, and the Library uses, a discernible public policy statement to guide its rulemaking. Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377. The Library, with their answer of “Unknown,” admits that they are using no discernible public policy statement to guide them in their shoe rule, or they could apply that rule to those Interrogatories to decide if they were proper. If they had such a discernible public policy statement, they would be able to apply it to those situations to discern whether they were part of the proper operation and management of the Library.1
The Library has essentially admitted that their shoe rule has been created and maintained on a whim.
Therefore, while Plaintiff thinks that the Library should be compelled to provide a more complete answer to these Interrogatories, he also thinks allowing them to amend their answers in the proposed fashion will lead this Court to the correct resolution of this case.
Respectfully submitted,
_______________________
Robert A. Neinast, Plaintiff
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 Response 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 7th day of October, 2009.
_______________________
Robert A. Neinast
Plaintiff, pro se
Footnotes:
1. Plaintiff realizes that the Library may only be replying “Unknown” to the first portion of each Interrogatory. Aside from their claim not to know if high-heels can cause an injury, the fact that they are going to such lengths to avoid answering the “proper operation and management” question pretty much demonstrates their lack of using a discernible public policy statement. [Back]