Should your child’s university or college take steps to make sure his or her bunk bed is safe? Either by lowering the upper bed or, if that cannot be done, by providing railings to keep the child from rolling out of the lofted bed? This not a trick question. It may seem like common sense to you. The simple answer should be an easy “yes.” Right? But as Coach Lee Corso says on “College GameDay,” “Not so fast!”
College students’ being injured by falling out of their bunk beds is, apparently, a fairly common and significant problem. You may remember the story of Clark Jacobs, a Georgia Tech student who fell out of his lofted bed in his fraternity house. He fell 7 feet from his bed to the hard floor of his room. He was diagnosed with a fractured skull and a brain bleed which then led to a stroke. Five years later and hundreds of hours of therapy, including in-patient rehabilitation at Shepherd’s Spinal Center, Clark graduated from Georgia Tech this summer.
The life-changing episode motivated Clark’s parents so much to try to make dorm rooms safe for students they started the non-profit Rails Against The Danger, whose mission is to educate the public about the danger of lofted beds in dorm rooms and to let students they have the right to demand the university make the bed safe by lowering it or providing safety bed rails. It is estimated there are approximately 71,000 cases of loft bed/bunk bed-related injuries annually among children and young adults up to 21 years of age. Let that sink in. Some of these falls result in the death of the student. For example, at Miami University in Ohio, a 20 year old student died from a 6 foot fall from his bed in his fraternity. For a risk with potential outcomes so catastrophic, it is truly difficult to understand why universities just don’t simply provide bedrails and ladders with every bunk bed. As Clark Jacobs’s mother points out: “It is ridiculous to take a chance when the danger is so easily avoided. Many campus bunk beds don’t even have ladders, requiring the students to climb up the bed frame to get into bed,” she said.
And who is in a better position to know that? A college freshman who is 18 years old and never slept in a lofted bunk bed before? Or the university or college that has housed literally thousands of such students and who has provided bunk beds for their dorms that are inherently unsafe? Even if the university or college hasn’t had one of these injuries on their own campus before, doesn’t their duty to keep up to date and informed about dorm safety require them to know about this danger and be prepared to do something about it?
Apparently, not in Georgia. I was a bit perplexed and surprised to read the Georgia Court of Appeal’s August 17, 2020 opinion in Valdosta State Univ. v. Davis, A20A1036, 2020 WL 4745074 (Ga. Ct. App. Aug. 17, 2020) in which the Court held that Ms. Davis’s “lofted bed constituted an “open and obvious” condition, and therefore, she was barred from recovery as a matter of law.” Ms. Davis, a freshman at Valdosta State University initially wanted to lower her bed to the same height as that of her roommate’s bed, so she submitted an online request to VSU’s housing department to that effect. But this request was never fulfilled. As a result, to access her bed, Davis would step on her desk and then climb into her bed because there was no ladder in the room. One night, after going out to a Halloween party and drinking a couple of beers, Ms. Davis went to sleep in her lofted bed that never got the requested bedrails. What happened next is totally predictable and foreseeable. She fell out of the bed. She sustained severe injuries in the fall, resulting in surgery and a stay in the intensive care unit.
The Court of Appeals analyzed these facts as if it were a typical case of a business invitee entering a business to do some shopping. Like a shopper at a Kroger or Publix who falls on a mashed grape on the floor because the grocery store didn’t clean the floors adequately. In that type of case, an analysis is performed to determine whether the store owner had superior knowledge of the condition, i.e., more knowledge about the condition than the shopper had. This must take into account a store owner’s statutory duty to keep the premises safe, which, in this context, has come to mean regular, frequent floor sweepings. The Court of Appeals held that Ms. Davis, an 18 year old freshman, assumed the risk of the dangerous bed, despite the fact that her request for a bedrail was ignored by the University and despite the uncontroverted knowledge by University officials of the need for bedrails for lofted beds to eliminate the danger of a student falling out of bed. As a lawyer, I am baffled. As a parent, I am outraged.
This opinion is a hard one for me to digest and accept. I don’t think you can legitimately compare the knowledge that Valdosta State had about the inherent danger of lofted student bunk beds without rails to the knowledge that this 18 year old freshman might have had and say they were equal or that the University didn’t know more about the situation than a freshman in college. To say that an 18 year old freshman student is on the same footing as a university is pure fiction. This horrible risk is not something that a student who may have never slept in a lofted bed before would normally even think of until after she arrives at school. Yet the school has obviously been thinking of it for some time before the student’s arrival, hence the request form for adding rails to a lofted bed. It is also difficult to swallow that a parent can send their child to a university, where, most likely, a freshman student is required to live in the University’s dorms, furnished with the University’s furniture, and then have the University claim the student “assumed the risk” about any hazard inside that dormitory. Parents have a right to expect their child is safe in their own dorm room. Universities should owe a duty to each student to make sure those rooms, which the University requires them to live in, are safe. But that is not happening on our college campuses. And let me ask you this: why would the Georgia Board of Regents even fight this lawsuit rather than immediately calling for all dorm room beds to be made safe and resolving Ms. Davis’s claim as an act of contrition? What has the Board of Regents done in response to this horrible incident to make their dorm rooms safe and to prevent this from happening again? Apparently nothing, because they argued in this case Ms. Davis assumed the risk by living in their unsafe dorm rooms.
I checked the docket for the Georgia Supreme Court and I am glad to see the plaintiff has already filed a Petition for Certiorari for review of the Georgia Court of Appeals’ opinion in Davis. This is one I’ll certainly be keeping an eye on.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 31 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Ms. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Ms. Clark is the Co-Host of the Podcast “See You In Court.”
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.