Submission Date:
Question:
We have a patron who insists that it is their right to go barefoot into any public area. Okay, but, being a public (Association) library, aren't we still liable even if that person injures themselves on the property even if they 'say' they wouldn't sue us? Is there a law that defends their position and if so, how do we defend ourselves from litigation? Should we have them sign a waiver? Any help is greatly appreciated!
Answer:
To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me. Can they do that, or can you help me sue?”[2]
If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process. For the sake of argument, let’s say that for every question I pose, the answer is, “No.”
- Do you have a disability that requires you to be barefoot?
- Do you hold a sincerely held religious belief that requires you to be barefoot?
- Does this rule disproportionately impact you as a member of a protected class?
- Are you subject to some type of judicial order that requires you to be barefoot?[4]
- Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?
Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”
Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State. So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.
This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land). A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it. And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy).
The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law. Country clubs may require a formal style of clothing, while barring cleats and spikes indoors. Children’s camps may require kids to wear shoes (with backs!). Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]
Why all this commentary about the law and clothing? I’ll make it clear. Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]
It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions. The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too. And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.
So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes. On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs. That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).
Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules. I want to stress: such factors are variable. The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through). But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice. And it’s okay to insist on it.
Thanks for a great question!
[1] We have a storefront office on a busy city street, so this is actually a possibility. There’s never a dull moment on the West Side of Buffalo.
[2] NOTE: Before I let this person into my law firm, I would insist they put on some shoes, or I’d meet them outside. This is because, while I may have liberal ideas about intellectual property and how to run a business, I am a fuddy-duddy about certain conventions (like civility, yielding to pedestrians, and covered feet). Someone once called me an “innovative curmudgeon;” I took that as high praise.
[3] NOTE: I would likely not take this consultation. I work with so many libraries, it would probably be a conflict of interest.
[4] I can’t fathom what type of restraining or protective order would require a person to not wear shoes, but in my business, I’ve learned to “never say never.”
[5] If you ever want to kill the mood at a party, ask me about the many laws that govern land use: zoning, permitting, environmental law, historic preservation, urban planning, construction, building code, municipal law, landlord-tenant, real property procedure, restricted giving…. Yep, land use law can destroy a festive mood in ten minutes or less.
[6] 19 NYCRR § 212.5 “Proper attire of contestants”
[7] If this concept sounds foreign to you, and you work in a library, my impression is that you are in a happy minority.
[8] I do a lot of yoga. No matter what studio I am at, if I forget to leave my shoes at the door, I get a very quick “what you are doing is not cool with the universe” reminder to take them off. In the yoga studio, bare feet are the rule, which is why most yoga places have a high budget (or offer work-trade) for floor cleaning.
