I am happy to report that the Arts, Beats & Eats Festival in Royal Oak, Michigan (a suburb of Detroit) has finally changed the FAQ on their web page. Bare feet are not longer prohibited.
But there is another related issue I’d like to write about.
First, megakudos to Alan Adler for his persistance in this. His tenacity finally paid off. Also, thanks to anybody who wrote on their facebook page or sent them an email.
Let’s review. The original text of the FAQ said
Is footwear required for the festival?
Yes, footwear is required to attend the festival. Need more information? Contact us at info@artsbeatseats.com.
Thanks to Alan’s efforts it now reads
Is footwear required for the festival?
No, but those who enter the festival with bare feet do so at their own risk.
First, let me say that the second version is hugely preferable. I’d rather have the second version (allowing bare feet) over the ban any day. It’s a solid victory.
However, there should be some concerns about it, from both the perspective of us as barefooters and from the perspective of Arts, Beats & Eats.
Our concern should be that a sign like that just reinforces in other people’s minds the idea that going barefooted is somehow particularly hazardous. Of course, it’s not. Every sort of footwear (or lack thereof) has its own set of problems. With high heels its the risk of getting a heel caught on something, twisting an ankle, or the long-term development of osteoarthritis. For flip-flops, there is an increased risk of slipping when wet. For athletic shoes, there is not only increased knee pressure, but the muscles of the foot itself are weakened, leading to problems. Athletic shoes also increase the risk of a twisted ankle over going barefoot (higher torque from the fulcrum of the raised heel).
As far as what should be the concern of Arts, Beats, & Eats, I bet they haven’t even considered it. But by specifically targeting only bare feet with that sign, they may (and I do emphasize “may”) have voluntarily accepted increased liability for footwear.
Let me explain.
First, it really doesn’t decrease their chances of being sued for an injury. Anybody can sue for anything. (Small caveat: there are a few people who have been designated by the courts as “vexatious litigators” who have been barred from filing lawsuits without the explicit permission of the court. That doesn’t apply here.) Where it matters is how the suit progresses.
There is no indication at all (and I’ve looked at a lot of lawsuit) that barefooters are particularly litigious. In fact, from all the ones I know, if somehow a very-low probability event happened, they would go out of their way not to sue. Even if they got a cut on the bottom of their foot, what are they going to do? Sue for the buck ninety-five for a bandage and some antiseptic? Of course not. They’d also be embarrassed that anything happened at all, and fearful that such a minor incident might be used to ban bare feet. If anything, they’d be likely to try to hide an injury, not make a big deal of it.
Second, the sign probably doesn’t protect Arts, Beats & Eats from the really big kind of event that really seriously harms somebody, and which truly would lead to a lawsuit. Suppose they totally miswire a booth and it electrocutes a barefooter. One could easily argue that that was “wanton” behavior, not mere negligence. The sign can only, legally, address negligence. (And the fact that the wiring could also have electrocuted a shod person, so that bare feet had nothing to do with the injury, would also mean that liability still held. A similar situation would hold for a falling object: makes no difference whether the victim was barefoot or not.)
But here’s the kicker. In law there is a principle called expressio unius est exclusio alterius. (Doesn’t that sound impressive when it’s in Latin?) What it means is
The expression of one thing is the exclusion of another.
Here’s how it applies: if I say that a rule applies to bare feet, sandals, and athletic shoes, the fact that I specifically left out high heels after specifying the others means that high heels are not included in the rule. Only those things specifically mentioned in the rule are subject to it.
The fact that they are specifically saying that only the barefoot are at their own risk implies that those wearing footwear are not at their own risk, and that Arts, Beats & Eats is accepting liability for their injury, even when they otherwise not have a duty to do so.
Is that a foregone conclusion in law? No. But if I were a smart lawyer pursuing an injury lawsuit for a women who got her high heel caught on one of those booth wires, I’d sure argue it. And Arts, Beats & Eats would have the added expense of fighting it. And I might even win.
Let me say just a bit more. Under negligence law, a business generally has the duty to maintain their premises is a reasonably safe condition. And the patron has the duty to watch their own safety, to look where they are going. By saying that only the barefoot are at their own risk, Arts, Beats & Eats may have voluntarily accepted a heightened duty to safety (where before their duty wouldn’t have been much because the barefooter was already assumed to have the responsibility to watch what they were walking on).
Probably not what they were considering when they wrote that part of the FAQ. The safest thing for them to do, liability-wise, is simply say nothing. Don’t ban bare feet; don’t make special comments about them.
Again, I’ve never seen that tested. But if I were a smart lawyer trying to collect for a person injured wearing footwear, I’d sure pursue it.
It’s all part of the law of unintended consequences—they let their irrational fear of bare feet push them into something that could cost them more in the end.
Leave a comment