In a comment to yesterday’s entry about my incident in the State Library of Ohio, Hiker White asked about whether a liability waiver might work. Additionally, Beach Bum wondered if a young barefoot woman would have been treated the same way.
I think the answers to those two comments are actually pretty closely related, so I’ll address them together.
First, let me talk a bit about liability waivers.
In the case of the library (actually any library in Ohio, and many libraries in other states), they don’t mean anything. To explain that, I need to talk about tort law for a bit.
If you are injured on somebody else’s premises, the first thing the law asks is what the “duty of care” was that the owner owed to you. For general negligence, that’s usually what is called a “duty to exercise ordinary care for the person’s safety and protection.” But that really depends upon your status. For instance, if you trespass on somebody’s property and injure yourself, there is a different duty of care since the owner had no way of knowing you’d be there.
So, there are three levels of status: invitee (also called business invitee), licensee, and trespasser. According to the Ohio Supreme Court: “Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner.” (I’ve added the emphasis.) A licensee “is a person who enters the premises of another by permission or acquiescence, for the entrant’s own pleasure or benefit.” Finally, a trespasser is one who enters without permission.
If you think about it, a library patron is a licensee, not a business invitee, since there is no financial benefit to the library the way there is for a business. Ohio case law backs this up (and I argued it in my library lawsuits—Souther v. Preble County District Library (Ohio App. Dist.12, 2006), 2006-Ohio-1893). The duty of care owed a licensee, as opposed to that owed an invitee, is to “refrain from willfully and wantonly causing injury.”
That goes way beyond negligence. And that means that any lawsuit for an injury would get tossed almost immediately, unless the library did something like deliberately seed the floor with razor blades. It also means that, for a library, any sort of standard liability waiver means nothing. (The only sort of liability waiver that would mean anything would have to say that you are allowing them to be willful and wanton, and you’ve have to be a real idiot to sign one of those, and they’d have to be real idiots to accept one. Oh, and courts won’t enforce such a wanton and willful liability waiver.)
So, bottom line: offering the library a liability waiver is a null act.
What about liability waivers in general, for regular businesses? I don’t like them, and I think they hurt barefooting as a whole. Yes, that might allow me individual access, but what they do is reinforce the mistaken belief in the business owner’s mind that barefooting is dangerous. And that hurts the cause.
But going barefoot is no more dangerous than all the other ways people get hurt in stores, and those injuries are quite often shoe-related. I even collected a huge list of various injury lawsuits (both barefoot and shod), and high heels are particularly danger. That’s here: Footwear (or lack thereof) Injury Cases. Daniel Howell included this list (abbreviated a bit) in Appendix A of his The Barefoot Book.
Based on all those injuries, it would make more sense for a store to require a liability waiver for high heels or flip-flops, but you never see them suggesting one for that. It is only for bare feet. When we acquiesce to a liability waiver for bare feet, we are standing right out there and saying to the store owner: “You’re right. Bare feet are so dangerous that I need a special exemption to use your store that way.” That’s false, and we oughtn’t encourage such thinking. I’d rather never return to such a store than present such a waiver (and that’s exactly what I do, or I should say, don’t do).
Going on to Beach Bum’s question, would a younger barefoot woman have gotten away with it?
She might have gotten away with it longer, but I think eventually she would have also been stopped. After all, I’ve had my library card for a could of years and used the library successfully over that entire time period.
I think the problem is the mythos attached to bare feet. People just know in their heart-of-hearts that bare feet are not allowed. Librarians in particular seemed to have been trained in this, and as we have seen, references to “no bare feet” rules appear in their textbooks.
So, without even thinking about whether such a rule makes the least bit of sense, they just automatically accept such a ban as the way things are and ought to be. It’s the mythos. It’s the “pattern of basic values and attitudes of a people, characteristically transmitted through myths and the arts,” or the “complex of beliefs, values, attitudes, etc., characteristic of a specific group or society.” That applies to the perception that women are more “allowed” to go barefoot than men; that applies to the idea that bare feet indoors are inherently unsafe (think about how illogical that is for a moment!) or a health risk, unless it’s your own house.
The trouble with a mythos is that it is very hard to knock somebody out of the comfort zone it provides. But that’s the battle we barefooters have to deal with so often. Liability waivers reinforce the current mythos, instead of breaking through them.