I’ve written before that businesses that are afraid of being sued by barefoot customers being injured somehow never never exhibit the same phobia when it comes to the shoes that really result in lawsuits.
So let me present one of those now.
First, as I’ve pointed out before, anybody can sue anybody else for any reason. So any sort of ban will not prevent lawsuits.
I also need to add that of course it is possible to be injured while barefoot. Bare feet are not some magic talisman protecting us from evil. But bare feet are also not some injury magnet, or these fragile things ready to burst open on contact with the least bit surface roughness.
OK, on with the example. This is all from the legal opinion in Hudak v. Valleyaire Golf Club.
In this story, Edward Hudak was attending an event at a country club, and had worn his golf shoes, complete with cleats, to lunch. The lunch was being served inside a restored barn with a terrazzo floor. As such, footing was a bit tricky. Of course, he fell and hurt himself.
The first thing to note is, again, anybody can sue for anything. Hearing the story, the first thing you think is that this will be laughed out of court, just as any barefoot case would be.
Here’s how the court analyzed that case. This is standard law in Ohio, but the law is pretty similar in other states.
In a negligence lawsuit, you start out by determining whether the defendant had a duty to the plaintiff. In this case, was there some sort of (legal) duty the country club owed to Hudak?
The answer is yes. Hudak was what is called a “business invitee”. “A business invitee is one who comes upon the premises of another, by invitation, for a purpose beneficial to the owner.” (The other choices are “licensee”, somebody invited in for a non-business purpose, and “trespasser”.) The duty owed to a business invitee is called a duty of “ordinary care”. The duty of ordinary care is a duty “in maintaining [a] premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger.” It also requires the owner “to keep the premises free from dangers not discernible by a reasonably prudent person and to warn invitees of concealed dangers of which the owner knows or should know.” And even more importantly, the owner is not an insurer of the invitee’s safety. Invitees are expected to take steps to protect themselves from what are called “open and obvious” hazards.
I’ve written before about comparative negligence, but the “open and obvious” doctrine is even stronger. It says that an owner is not liable for open and obvious hazards (i.e., the owner has no duty to protect against open and obvious hazards).
Of course, this doctrine could often apply to any situation in which a barefooter was stupid enough to sue a store. “What, you stepped on a broken jar that had fallen of the shelf?” “How much more obvious could that have been?” In fact, simply because of the bare feet, I suspect judges and juries would be quite likely to call items “obvious” when they are not grossly overt. If you are barefooted, certain items should be more obvious than they would be for the average customer.
So, how did Hudak do in his lawsuit? If you don’t know they answer, you haven’t been paying attention!
Here’s the appeals court’s wrap-up.
Hudak’s own testimony indicates he was aware of the potential danger of wearing golf shoes with metal spikes on a hard floor. He acknowledged that he was walking “gingerly.” Thus, Valleyaire had no duty to protect Hudak from that danger, nor to warn him of its existence.
It didn’t even make it to trial.
Barefooters are aware of most potential dangers there are in walking around barefooted. The sorts of dangers that really might hurt them really would have to be rather open and rather obvious. Here is another reason that businesses have nothing to fear.
Back to Hudak’s shoes.
I bet if you wore them to a grocery store not a single one would make you leave, even if you were tottering around “gingerly” the way he was. (After all, they don’t do it with women tottering in high heels.)
But they would still try to tell you that bare feet were different.