How Wanton

This is another in a random series of entries regarding the liability of businesses in regards to barefooted customers or patrons. The last one, from last Friday, was Fear of Flooring, which noted that slip and fall accidents are the number one cause of injuries in supermarkets.

This time I’m going to discuss libraries.

I have a bit of experience with libraries, and have sued two of them for not letting me in barefoot. [Truth in Advertising: I keep losing.] But it has taught me a bit about library insurance policies.

When you are involved in a lawsuit, one of the things that you can do to get information is called “discovery“. And one of the vehicles used for discovery is the “interrogatory”, in which you get to ask them questions that they have to answer under oath. So, in the first library lawsuit, I asked them:

Please state whether any of the Library’s insurance policies require, at any time required, or is being (or has been) interpreted to require, that the Library enforce a barefoot policy as part of coverage. If so, please append a copy of the relevant portion of these insurance policies to the Answers.

and the answer was:

No provision of the Library’s insurance policies requires that that the Library maintain a regulation requiring patrons to wear shoes.

For the second library lawsuit, I asked a slightly different question:

Does the Library have an insurance policy covering the Library against the negligent, wanton, or willful acts of its employees that might result in an injury tort action against the Library? If so, please attach details on the extent of the coverage.

Their answer was

Negligence policy – yes
Willful or wanton policy – no
Insurance policy provided

As they say, they provided a copy of their insurance policy, so you can look at it if you want to. There is a copy here. It looks to be a pretty standard policy.

[By the way, “negligence” covers the usual sort of thing that happens to businesses. “Willful and wanton” behavior is behavior that goes well beyond mere negligence. “Willful” might include personnel deliberately placing nails point up on the floor; “wanton” might include knowing of a real hazard (let’s say a rock precariously on a high shelf that they had been warned of time and time again).]

So, insurance companies, which are in the business of quantifying risks, really don’t care about barefooted customers.

I do have a couple more insurance-related points.

For the first library, I sued them under 42 U.S.C. 1983, which is the law for civil rights violations (the theory was that by preventing me from using the library I was denied access to my First Amendment right to access information — access to information is a well-established part of the 1st Amendment). I also sued their Executive Director. It turns out that they did not have insurance protecting him from that kind of lawsuit. So they bought some right then and there. If I remember correctly, it cost them $18,000. Since it was after-the-fact of my lawsuit, I’m guessing that basically the insurance company was betting that the final cost of defending him would be less than that premium.

The really odd thing is that Ohio libraries are probably not liable for most typical injuries, like slip-and-falls, or high heels caught in cracks, or even barefoot injuries (if something that rare even happened). According to the Ohio Revised Code, they have statutory immunity from all but injuries on its property caused by physical defects within or on the grounds of the library. “Statutory immunity” means that they cannot be sued for that kind of injury.

But there is a legal principle that goes even further. In tort law, the status of an injured party makes a big difference. The three standard types are business invitee, licensee, and trespasser. Most tort law regarding negligence is in regards to business invitees, and the highest standard of care applies there. A “business invitee” is somebody invited onto a property for a purpose that is beneficial to the owner. A licensee is somebody invited onto a property (or allowed to enter the property), but not to the benefit of the owner. It’s obvious what a trespasser is (no invitation, either explicit or
implicit).

The thing is, Ohio law is pretty definitive: library patrons are not business invitees (the library makes no money off of them), but licensees. And the only duty owed to a licensee is to refrain from wanton, reckless, or willful conduct which is likely to injure the licensee.

So basically, as long as the library isn’t engaged in wanton behavior, they are not liable for any injury to a barefooted (or other) patron.

The really sad part about this is that all of the courts in my first library suit were briefed on this. Yet, they still said that the library’s shoe rule protected the economic well-being of the Library by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented. Those courts also completely neglected to even mention or analyze the law in that area (for instance, to say that I was wrong, if I was).

The issue has also been ignored in the second library lawsuit.

It’s almost as if everybody had already made up their minds and ignored that that contradicted that predetermined conclusion.