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Time to add another state to the list of “Places I Better Not Get Arrested In.” Turns out when you spend a substantial portion of your time making fun of people, the number of places you can safely visit shrinks. People remember. You end up meeting a guy five minutes before your speech to the Tulsa Bar Association who says, “Didn’t you write a column about Oklahoma not long ago?” So today I guess I’ll call the travel agent and tell her to cross Burlington County, N.J., off my list. This will be a little dicey because I have cousins in nearby Somerset County, and I’m not sure where the county lines are. But it has to be done. Because Burlington County has at least 14 people — a plaintiff, 12 jurors, and a judge — who do not understand the concept of a bunk bed. A bunk bed! How tough can this be? MAGIC TECHNOLOGY Understand, I am the last person to mock the technologically challenged. I am, myself, perhaps the foremost example of Arthur C. Clarke’s observation that we have reached that point in man’s development where any reasonably advanced technology is “indistinguishable from magic.” It’s all magic to me. I have no idea how anything works. If it was invented after the carburetor, I don’t understand it. Years ago our court met in a bank building. When they told me it had microwave relays on the roof, I thought it meant the court was somehow involved in organizing teams to help people heat up food. I now have a car that talks to me. It gives me directions. As near as I can determine, a very small woman lives behind my dashboard, and someone pays her to tell me where to go. I find this remarkable, as there are so many people willing to do that for free. But say what you will about me, I understand bunk beds. Here’s what I understand: You have two beds. You put one over the other instead of putting them side by side. That means — according to my medieval understanding of physics and anatomy — that one person sleeps higher off the ground than the other. And if that person falls out of bed, he (1) is more likely to hurt himself than the other guy is. This is not only NOT rocket science, it is not any kind of science at all. It is experience. Every child finds out — the hard way — that the pain caused by falling is generally proportional to the distance fallen. And they find out about falling out of bed. We do not learn these things by studying Faraday and Newton; we learn them by studying Wile E. Coyote and the Road Runner. You don’t even have to understand gravity. All you have to understand is “down” as the second half of the common expression “fall down.” And as beds are up in comparison to floors, you can fall out of them and down onto floors. Unless you were sick the week prepositions were explained, (2) you should know all this long before you take your SATs. $179,001 Yet a New Jersey jury awarded a local college student $179,001 because the manufacturer of a “loft bed” (3) failed to warn users of the bed that if they fell out of it, they could hurt themselves. Honest. I won’t lie and say I couldn’t make that up. I could. But it would require more tequila than I can keep down at my age. I am presently staring — incredulously — at the opinion of the poor three-judge panel that had to confront this verdict. (4) I tell you, people don’t have any idea how hard appellate work is. Imagine having to explain all the things wrong with giving someone $179,001 because no one warned him against falling out of bed. To begin with, the plaintiff was a college student. This was someone who had matriculated through the schools of New Jersey and done well enough to go to Stockton State College. If this is the level of cerebration accepted by New Jersey high schools, it hardly seems surprising that poor Princeton has to go begging to the other states for students. What’s more, he was a senior. This was no callow freshman. He was 21 years old. He could vote and drink and marry without parental permission and all the other things that usually get us into a heckuva lot more trouble than bunk beds. He was nine months from graduation. And this happened in 1999. This guy’s been out in the work force for six years while his case dragged through the system. And he’s been out there with a r�sum� that, doubtless, boasts of a college education. God help the great state of New Jersey if he went into teaching. Now in fairness, it must be pointed out that he had only slept in this bed for five weeks. And the opinion points out, “He had never slept on a loft or bunk bed before.” These are, of course, critical factors. Everyone knows that the first six weeks of operating a gas chromatograph are the toughest, and we can all remember how tough it was for us the first time we piloted a jet. So we can certainly imagine the difficulty facing this plaintiff after only 35 nights sleeping in a bunk bed. According to the opinion, “At about noon on October 11, 1999, plaintiff was asleep on the bed when his pager went off. (5) . . . Plaintiff did not hear the pager at first, but his roommate, who also had been sleeping, woke up and yelled to plaintiff to �turn . . . off’ the pager. (6) Plaintiff testified that �when he yelled over to me to wake up, or, you know, get up, I was startled, and I — the next thing I knew, I was — I fell off the bed, I was on the floor.’ “ (7) That’s certainly the way it always happens to me. One minute I’m trying to connect the red battery cable to the black post, and the next thing I know, I’m on the floor. But despite what that quote might suggest about him, our plaintiff was capable of learning from his mistake. According to the opinion, “Plaintiff resumed sleeping in the loft bed, (8) but subsequently positioned himself �all the way against the wall,’ as far as possible from the open edge of the bed, because he �didn’t want to fall off the bed again.’ “ But the damage had been done. $179,001 worth. Tragically, “There were no warning labels on the bed, and it had never �cross[ed his] mind’ or �occurred to’ plaintiff that he could fall or that the bed was dangerous in any way. He testified that had he seen a warning, he would have been �aware of the hazard that was present’ and slept closer to the wall, as he had done after the accident.” Honest. Says so right in the opinion. And he had an expert, George Widas, (9) who testified that industry standards in the bed-making industry require that the manufacturer affix a warning “that says make sure that you protect yourself from this fall hazard.” According to Widas, the warning label should have had “black letters on an orange background” and included a warning that both identified the hazard and explained how to avoid it. (10) So the label should have said — in Day-Glo green letters on a phosphorescent-pink background — “THIS IS A BED. USE ONLY WHILE AWAKE.” Or perhaps “IF YOUR IQ IS NOT THIS TALL, YOU CANNOT RIDE ON THIS BED.” Or how about an arrow pointing downward, with the legend “FALLING IN THIS DIRECTION COULD BE HAZARDOUS TO YOUR HEALTH. FALL ONLY UPWARD OR TO THE SIDE.” The poor CEO of the bed company, who probably felt like he’d wandered into a Kafka novel, testified that federal regulations governing warnings on such beds expressly “exempted colleges and universities and military.” (11) Nonetheless, the jury, confronted with only a cause of action for failure to warn (12) and presumably more familiar with the intellectual capacities of college students in the state than I am, found that such students could not be expected to figure out the whole bed-floor-down-owee thing and awarded the plaintiff “three trash bags fulla twenties and four tokens for the turnpike.” (13) ON APPEAL To their everlasting credit, the appellate panel did not just say, “What, are you crazy?” They spent 20 pages explaining the case and delineating the legal basis for their reversal of their trial court colleague. (14) After an extremely patient and erudite explication of New Jersey law, they concluded, “The risks are so obvious here that we fail to see . . . what a warning could have advised in addition to the obvious.” Judgment reversed. And you will be happy to hear that it will not take a warning label with black letters on an orange background to keep me out of Burlington County for the rest of my life. Which, when you think about it, is really too bad. I mean, how many places can there be where I would have a chance to be the smartest guy in the county?
1 No woman would be stupid enough to fall out of bed. 2 And your mom never recited “No more monkeys jumping on the bed” to you. 3 This is a bunk bed with no lower bunk; usually there is a desk or dresser under it. If you think that complicates the case, you should move to New Jersey, which is apparently chock-full of humans who find that concept complicated. 4 Mathews v. University Loft Co., Superior Court of New Jersey, Appellate Division, Docket No. A-1536-04T3.5 Oct. 11, 1999, was a Monday; I can only assume all of Stockton State’s remedial-learning classes are offered in the afternoon. 6 The ellipsis is in the original. This being New Jersey, I am quite sure the portion of the quote deleted by the court did not include the old Anglo-Saxon word for intercourse but was, rather, a polite request to “turn that wonderfully convenient modern communications device . . . please . . . off.” 7 Obviously, plaintiff was majoring in communication arts. 8 Because, after all, it was only noon. 9 Names are only changed to protect the innocent. To my mind, Widas forfeited that protection when he testified — he actually said this — that the danger of falling out of a loft bed is not open and obvious. 10 I’m sorry, but beds are designed to be used primarily in the dark. Are black letters on an orange background really going to do the job? I think we need Day-Glo here. 11 In other words, the federal government thought there was no need for a warning if you were smart enough to go to college or march. 12 Other causes of action had been summary judgmented out. Wouldn’t you love to know how you could decide other causes of action were trash, but this one about not warning about falling out of bed, this one should go to the jury? 13 New Jersey verdicts are phrased somewhat differently from ours. It works out to $179,001. 14 Who, by the way, was a woman, so maybe Footnote 1 is erroneous.


William W. Bedsworth is an associate justice at the 4th District Court of Appeal in Santa Ana, Calif. This article previously appeared in The Recorder , an ALM publication in San Francisco.

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