A barefoot person does not increase a store’s liability risk

One of the most common reasons we often hear for a store requiring customers to wear shoes is, “If you’re barefoot you might injure your foot and sue us.” There is very little chance of either of those happening.

Records of lawsuits related to bare feet injured in a business are almost non-existent

The fear of barefoot injury lawsuits is completely irrational and never based on any actual experience that some business may have had. In fact, if you asked them how many times they’d been sued for a barefoot injury – and they were honest about it – they’d have to tell you “never.”

Of course they might follow that with, “but that’s because we ‘require shoes'” – a kind of circular reasoning which is just masking their ignorance or misunderstanding of how liability laws actually work.

Almost all foot injuries in stores are related to shoes and other footwear, not bare feet

The vast majority of businesses do not require shoes as part of any official dress code policy. The reason is, most stores know there just isn’t any real need for such an unwelcoming policy. Sure, you can probably think of a few that do, or at least have seen signs on the doors of a few requiring shoes, but even many of those do not enforce such signs.

Customers wearing shoes does not reduce business’s potential liability for foot injuries at all.  Almost all foot injuries in stores or other businesses are caused by shoes, certainly not prevented by shoes. Many types of shoes worn are inherently hazardous. Those certainly include flip-flops and similar sandals, as well as high-heeled shoes than some women wear.

Requiring shoes may actually increase a business’s potential liability

If a store requires shoes – as opposed to a neutral policy in which it does not concern itself in any way with customers’ attire – it seems logical that the store is in effect accepting all responsibility for any mishap that may be caused by those shoes that the store required the customer to wear. To my knowledge, that has not yet been tested in a court of law.

Shoes worn in stores over the years have been responsible for hundreds of injuries. There are literally hundreds of lawsuits in the public record directly related to injuries caused by or directly involving shoes or other footwear in stores or other businesses.

Only two lawsuits on record can be found that directly involve a barefoot injury in a store

You may wonder how many lawsuits are on record related to injuries to bare feet. There are only a handful related to an injury to bare feet anywhere (for example, at a swimming pool). But I could find only two where someone who was barefoot in a store and his or her bare foot was injured on something within the store – and then sued.

Those are Anderson v. Racetrac Petroleum, Inc., 296 S.C. 204, 371 S.E.2d 530 (1988) and Dr. Pepper Bottling Co. of Newport v. Whidden, 227 Ark. 13, 296 S.W.2d 432 (1956).

In Anderson, the bare foot of a woman inside a gas station/convenience store was cut on a piece of metal. More details are below.

In Dr. Pepper Bottling Co. of Newport, a soft drink bottle in a store suddenly exploded near a barefoot child causing flying glass to injure her foot. Dr. Pepper Bottling lost the case since it was clearly a product liability situation. There was no mention of the child’s being barefoot as having anything to do with causing or contributing to the accident.

There’s actually a third case on record involving a barefoot person in a store who was injured, Green v. Kimbell, Inc., 647 S.W.2d 110 (Tex.App.-Ft.Worth 1983). But this was not an injury to a bare foot, but a slip and fall. A barefoot child slipped on dirty leaking water on the floor of a store and fell on his back, causing severe injuries. The eventual outcome of the case wasn’t made clear in the available information, but there was strong evidence of lack of ordinary care by the store. The child’s bare foot wasn’t injured, and there’s no mention of the child’s being barefoot as having anything to do with causing or contributing to the accident.

The most significant of those cases was Anderson v. Racetrac Petroleum, Inc. This was a 1988 South Carolina case that involved a barefoot woman inside a gas station/convenience store whose bare foot got cut on a small piece of metal that was protruding from the base of the cashier’s counter.

Her attorney claimed that the business was negligent in that they either knew or should have known about the hazardous piece of metal sticking out, but had done nothing about it.

The business claimed that they knew nothing about the metal sticking out, but in any case, since the woman was barefoot, she had assumed any and all risks of entering the store while barefoot.

The Anderson case is a good example of contributory negligence applicable in a barefoot injury situation

The judge in the original trial, heard in the local court of common pleas, ruled in a summary judgment in favor of the business and against the woman whose bare foot was injured, asserting that,

as a matter of law [the plaintiff] was guilty of contributory negligence for walking barefoot through the store…

The barefoot woman and her attorney appealed. The appeals court reversed the trial court’s ruling, asserting that there had been evidence “sufficient to create a genuine issue of material fact” as related to the business’s prior knowledge of the hazard, and therefore a jury trial should have been ordered instead of a summary judgment.

So the case was sent back to the local trial court, where a few months later a jury found that the business was not responsible – the same verdict rendered by the original judge.

This case is an excellent example of why the notion of a barefoot person suing a store for a foot injury is most likely doomed to failure from the start. Most attorneys would realize that and probably would never even accept such a case, with little to no chance of winning.

Contributory or comparative negligence and assumption of risk concepts will likely make barefooters responsible for their injuries

The legal concept of contributory or comparative negligence by a plaintiff (person suing) is observed in every state in the U.S., though the degree of that negligence needed to bar or reduce potential damages varies.

There  is also the legal concept of assumption of risk, which is often considered and applied in injury cases.

The article “Negligence Defenses – Contributory Negligence and Assumption of Risk” from Lawshelf Educational Media explains this well:

A plaintiff is said to ‘assume the risk’ of injury if he voluntarily enters a dangerous situation fully aware of the risk involved. The principle behind this defense is that a plaintiff who voluntarily consents to an activity cannot later sue if injured. ‘Voluntary’ means the person assuming the risk had a choice to avoid it. If the person had no choice to avoid the dangerous activity then he cannot have assumed the risk.

Assumption of risk is a defense in liability cases and can bar or reduce an injured party’s right to recovery of damages against a store or other business. If the plaintiff (person suing) voluntarily and knowingly assumed the risks related to the activity in which the person was participating, the chances of winning a court case against the business would probably be reduced to little or none.

Assumption of risk can be express or implied, or sometimes referred to as primary or secondary.

Express assumption of risk occurs when someone explicitly accepts a risk, whether by oral or written agreement. Implied assumption of risk occurs when someone’s conduct clearly demonstrates they were aware of the risk but proceeded anyway.

A barefooter entering a store or other business would most likely always be deemed to be assuming the risk of being barefoot in the store. It would be an express assumption of risk if the barefooter signed a liability waiver, presented something in writing stating he or she accepts any risks of being barefoot, or simply orally stated to a store employee or manager that he or she is responsible and accepts the risks.

A barefooter entering a store or other business who doesn’t state or directly affirm in some way that he or she is accepting the risks of being barefoot in the store would most likely still be considered to have assumed that risk, simply for making the choice of walking into a store barefoot. This is an example of implied assumption of risk.

Contributory/comparative negligence and assumption of risk concepts are similar but different

The basic difference between contributory/comparative negligence and assumption of risk is that contributory/comparative negligence relates to what actually happened that caused the injury. Assumption of risk relates to what was in the mind of the injured person before it happened.

Under what circumstances would a store be liable for a customer injury?

A store or business is only liable for a customer injury accident on its property if

• • • • • the store or business was negligent, and
        • that negligence was a cause of the accident.

Those factors in and of themselves may be difficult to prove regardless of how the customer may have been dressed. But if the customer was barefoot – generally considered “risky” in today’s society – the question of contributory/comparative negligence or assumption of risk will likely always be an important factor in whether the store was responsible or not.

Therefore the notion in the minds of many business owners that a barefoot customer somehow is a greater risk or liability to them is simply false.

Businesses that are inherently risky normally require liability waivers

Some types of businesses that are open to the public are considered to have an inherent risk of injury to their customers. Examples might include horseback riding stables, skydiving businesses, scuba diving boats, zip-lining facilities, etc. Those types of businesses almost always require their customers to sign a liability waiver to minimize the business’s chances of being held responsible or being sued for some injury a customer might sustain.

Ordinary stores that sell products or services, such as grocery stores, convenience stores, restaurants, hardware stores, pharmacies, etc., are not generally considered inherently hazardous or risky businesses.

Even though customers in those types of businesses may occasionally get injured in some way, unless the store was grossly negligent in its duty of care, those injuries aren’t likely to result in major lawsuits or damages awarded. Business liability insurance as a rule will cover most customer injuries that could occur due to the store’s ordinary negligence, such as slip and falls. What liability insurance isn’t likely to cover are injuries due to gross negligence or intentional carelessness of the business.

Ordinary negligence is not the same as gross negligence

There is a difference between negligence in the ordinary sense and gross negligence. Ordinary negligence is the failure to use reasonable care, resulting in damages or injuries to another person. It usually means careless mistakes or inattention.

To determine what is “reasonable care,” you would look at what an ordinary person would do in a similar situation. In cases of ordinary negligence, the responsible party did not mean to cause harm to the other person, but that does not mean they are blameless.

Gross negligence is different from ordinary negligence in that it is more than just a mistake or simple carelessness. Gross negligence is a conscious or willful disregard of the need to use reasonable care – doing something or failing to do something, the result of which is highly likely to cause harm to other people or property.

Convincing a store owner or manager that your bare feet are not a liability issue can usually be done

But knowing the facts yourself, how do you deal with a store owner or manager who continues to insist that your bare feet are too risky to be allowed there and he or she is afraid of liability? I touched upon that issue a little in an article I wrote a few months ago entitled, “Barefoot confrontations can usually be successfully handled.”

That article covers almost all the possible reasons or excuses that an owner or manager might assert to try to force you to put on shoes or otherwise leave the store. Here, in this article, I want to specifically address situations where liability or fear of being sued is brought up as a reason to deny your entry.

Here are some suggestions for discussing barefoot injury liability issues with store management

When talking to a store owner or manager, I would suggest not attempting to cite all the various points of liability law that I’ve mentioned here, but just be aware of them so you can easily but briefly fend off any false information the manager may try to argue.

First and foremost, I believe the best initial response is something like, “It’s not going to be a problem, because I am totally responsible for my feet and any risk involved.”

That might be all you need. That’s worked for me a number of times.

If they still seem reluctant to accept your oral assurance, next best thing would be to present them with something in writing, such as a business card or information card that includes a statement of your assumption of risk. I personally have used a card like that on several occasions which has made the difference between being forced to leave or being allowed to remain barefoot. Here’s an image of that card.

The message it sends is, “I know what I’m doing, and I’m fully responsible for my choice to be barefoot.”

The statement on the bottom of my card is in effect a “liability waiver,” though certainly not a formal one that meets all the legal standards usually required for such a document. Yet it still meets the definition for “assumption of risk.”

If all your best efforts at that point have still not convinced the manager or owner that you won’t hold the business responsible should something happen to your feet, the next thing you could suggest is signing a liability waiver.

An ordinary store, not being a place that’s normally considered hazardous (as discussed above), is not likely to have a liability waiver form available, so just the logistics of actually doing something like that make it somewhat impractical. So, often, if it comes to that point, just the offer will convince the manager that you can be trusted at your word and do indeed accept any risk involved – so you’re OK.

On the other hand, if the manager or owner really wants a formal, in writing, liability waiver holding the business harmless should something happen to your bare foot, there’s no good reason not to accommodate him or her, especially if that seems the only way you are going to be allowed to remain there barefoot – and remaining there barefoot is necessary and important to you at that time.

Let me mention, the laws regarding liability waivers are complex as well as specific, and they vary by state. It is not within the scope of this article to explain all the complexities and nuances of a properly written liability waiver.

But their basic purpose is to protect the business from liability resulting from any harm or injury to the business’s customer or patron. So whether a liability waiver is properly written to satisfy all legal requirements for that protection (of the business) would be the responsibility of the business, not the customer or patron.

If a business will accept a very general, or even imperfectly written, liability waiver in exchange for your freedom to be barefoot, then let them. You have nothing really to lose if an inadequately written liability waiver wouldn’t “hold up in court.”

Also, the notion that by signing a liability waiver you may be giving up your rights to damages should you actually be severely injured due to a business’s gross negligence, there should be little worry in that regard.

Even valid well-written liability waivers do not excuse all forms of negligence. If the business engaged in reckless, wanton, gross, or egregious negligence, they can be held accountable regardless of any waiver that may have been signed.

One way to help ensure that you’re waiving liability for only injuries to or related to your bare feet – not other parts of your body – is to be sure that this or similar wording is included:  “any injury I might sustain as a direct result of being barefoot.”

Some barefooters carry around with them a fill-in general liability form that they can present, as a last resort, to help convince a store or business that they will not be sued for a barefoot injury. A sample liability waiver form has been published on the Society for Barefoot Living‘s website which can be easily printed out and filled in if needed.

Disclaimer:  I am not a lawyer, and nothing in the above article is legal advice. This article is for informational purposes only, including my own personal opinions and conclusions. If you need legal assistance relative to anything referred to in this article, you should consult with a licensed attorney.