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Man struck, killed by plow in Dorchester
By adamg on Sun, 01/24/2016 - 12:20pm
Dot. Ave. blocked off. Photo by Erica G. Webb.
Dot. Ave. is shut between Sudan and Crescent because of a crash sometime before 11:30 a.m. The Herald reports the pedestrian, a man in his 60s, died.
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Comments
Worst case
Der Glob now reports it as a fatality. In typical Globe and BPD style, no name, gender or age of either ped or driver. Also, it reads like cops are treating this as just another unfortunate accident.
"Accident"
As in someone, or a whole set of somebodies, "accidently" didn't bother to clear the sidewalk?
Is that ever considered to be the cause of such a collision?
The body was in he crosswalk
The body was in he crosswalk actually
sidewalk shoveler's inaction
I think sidewalk shoveler's inaction, because they have a duty under the law, is called contributory negligence. Still, plow driver.
They Have No Responsibility to do the City's Job
The ordinances written into city law that amount to a complete and total abdication of the city's responsibility to its public ways are in fact both unconstitutional and unenforceable.
It's not my job as a property owner to shovel the city's property just because I happen to be next to it.
We're going to keep having this conversation after every single snowstorm, until the city finally budgets for and spins up the proper facilities with which to clear all city sidewalks of snow in concert with the roads being cleared, because that is the only way sidewalks will be cleared consistently and reliably.
No matter how high you hike the fines, no matter how much you want to try and shame people into doing the city's job for it, you will never get the sidewalks cleared any other way.
I'm listening.
Do you have any citations that substantiate your legal theory?
As a Matter of Fact, I Do
It's understandable that you wouldn't want to just take my word on this.
Fortunately, you don't have to, as you can take the Indiana Court of Appeals' word on it instead from Lawson v. LAFAYETTE HOME HOSPITAL, INC, 760 NE 2d 1126 (2002), where the supposed duty of abutting property owners to clear their sidewalks was rejected:
And again in Denison Parking, Inc. v. Davis, 861 NE 2d 1276 (2007), where the Indiana Court of Appeals specifically ruled against the practice of creating ordinances meant to shift responsibility away from municipalities and onto abutting property owners:
Indianapolis, much like Boston, Cambridge, and whole hosts of other cities still to this day threatens its property owners with fines and shaming instead of actually clearing its own sidewalks. And much like it is here, nobody gets fined over there either. The difference is that they've gone through the lawsuit process to establish as a matter of fact that these fines are unenforceable, something that has yet to happen here.
Inapposite
We live in Massachusetts, sugar. Move yourself out to Indiana if you wanna follow that law. Otherwise, put on your big-person pants and shovel like a responsible human.
WCVB reported tonight
WCVB reported tonight that a shovel was found on the road not far from the man who was hit by the truck. It's possible he was shoveling out his car (...or crossing the street or walking in the street because the sidewalk was obstructed.)
Unfortunately the Mass.
Unfortunately the Mass. Supreme Judicial Court addrssed this issue in 2010 and found that property owners can be liable for snow and ice.
The city ordinance is therefore both constitutional and enforceable under the Mass. Constitution and state laws. In other words, the city ordinance is legal as it is. If you want to get rid of the ordinance, you'll have to get the city itself to repeal it; the courts won't invalidate it.
I'm not a lawyer but I do
I'm not a lawyer but I do know how read court cases. Just from the citations alone ("Ind.Ct.App.") I can tell this is an Indiana state-level appellate court case, which means it's only binding within the state of Indiana. Yes, the "N.E.2d" means the case was reported in the case law reporter that also reports on Massachusetts, but that doesn't mean the decision is binding on us.
Different states have different statutes, common law, court precedents, and their own constitutions from which they derive decisions. Somewhere along the way Indiana has developed a different concept of negligence and liability than Massachusetts has. On issues that may conflict with federal law or rights protected by the U.S. Constitution, the U.S. Supreme Court or the federal Circuit Court that covers the region of the U.S. that the state is in may step in and override state-level decisions, but unless that happens, each state is free to have completely different case law.
If you want to find case law that actually applies to MA residents, you need to find cases decided by the Massachusetts Supreme Judicial Court, the Federal First Circuit Court (the federal appeals court that has jurisdiction over the New England states plus Puerto Rico), or the U.S. Supreme Court.
I agree with you that it shouldn't be the law, but it is. Citing out-of-jurisdiction case law doesn't help and just opens you up to dismissive mockery like some of the other replies. If you want the law changed, you'll have to convince the city to take responsibility for snowplowing sidewalks, like many other cities in the area do, using their own sidewalk-sized bulldozers rather than relying on a patchwork of hundreds of thousands of residents with shovels.
what?
To sum all that up: you are too lazy to shovel your sidewalk.
Be an adult and shovel your sidewalk, don't make it a constitutional issue because you know your "rights"
I lived in the suburbs growing up where the fire hydrant was nowhere near my driveway, guess what I did every snowstorm? Shovel the hydrant for the sake of everyone else's safety and because it's the right thing to do. Just like you should be doing with your sidewalk instead of posting here.
Worry more about people (and in this case dead people) and less about how offended you are that your letter of the law rights got violated.
Au contraire, I would never dream of not shoveling "my" sidewalk
...but the problem here is that the sidewalk in front of my home isn't "my" sidewalk, its the city's sidewalk.
The problem is that in this one specific and narrow instance, and at absolutely no other time (see also: the arguments over restaurants occupying sidewalk space with outdoor seating and why that's considered wrong) is the sidewalk considered to be "mine."
Furthermore, I'm far more concerned about the violation to my rights that happens every single time I'm prevented from traversing the public rights of way because of gigantic snow piles left on the corner (by municipal plows), because of sidewalks that are cleared badly or ineffectually and occasionally "cleared" in such a way that makes it more difficult to traverse (most often apparent anywhere midblock crossings are common), because the attitude towards this problem is indeed all too often devolved to 'you are too lazy to shovel your sidewalk' and not 'how can we ensure that this sidewalk actually gets cleared?'
Fines don't work. Shaming doesn't work. We know these things don't work because articles like this one just keep on happening, and we know these things don't work because in cities like DC where transportation advocates run sidewalk-clearing "halls of shame" the halls are often full of flagrant repeat offenders.
The only parties that should be shamed here are the government agencies and the politicians that have allowed this to become the 'standard.'
Yeah, OK
Let me guess: You also don't pay income tax on the grounds that you find it unconstitutional?
I hate to break it to you but the highest court in MA disagrees with you. You're welcome to fight it if you want but understand that the courts also have the power to send you to jail or garnish your wages for non-compliance with their rulings if you refuse to pay fines.
Logan is has reopened if you want to book the next flight to Oregon and join your friends at the bird sanctuary while protesting the government's rule of law.
too many anons post just to be contrarian
Too many anons post just to be contrarian and troll folks who come to universal hub for news and intelligent conversation.
Failed to include the links to case law in the previous comment
That's my error. Here they are:
https://scholar.google.com/scholar_case?case=5891003694892799686&q=india...
https://scholar.google.com/scholar_case?case=13065756901735296711&q=indi...
Huh
Wrong state, buddy. We're talking about Massachusetts here.
Definitely True
But the "You can't MAKE me shovel" is the sort of defense a lot of serious people in the area like to use. It seems more wishful then anything else -- perhaps people hope that if they say it enough it might come true?
It's an absurd argument anyway. Want to pay $1000 more in property tax a year? I do think it would be better for towns to just shovel for residents who don't see the need... and send them a bill for $100/sidewalk/storm.
Far From Being an "Absurd Argument"
The actual impact to your property tax is likely to be on the order of $100 a year, not $1000.
Once the municipality actually (re)assumes responsibility for its property, economies of scale kick in and justify the acquisition of heavy equipment and labor to staff an actual snow-clearing unit - meaning that the sidewalk gets cleared far better far faster than when Johnny Landlord hires some disaffected college kid to take care of it. (This is also the reason why we can't just go with your suggestion to shovel properties and then send a bill, which I would otherwise be more than happy to pay.)
A single bobcat (and a single bobcat operator, hired out of the existing seasonal (summer) labor pool for these winter jobs as well) well-equipped for the job of snow clearing can, on average, clear roughly 1 acre of snow with less than 4 inches of accumulation, or slightly more than (round it down to) 40000 square feet. Taking the 5 foot minimum used as a guideline for how much sidewalk ought to be cleared, we find that 8000 linear feet of sidewalk could be cleared per hour by a single bobcat and bobcat operator. Let's multiply that by a reasonable 8-hour window after snow stops falling to come up with 64000 linear feet, or about 12+1/8 miles, of sidewalk that could be cleared by a single bobcat in a single shift. Figure on having three eight hour shifts.
Purchase sixteen bobcats at roughly $7500 each, and figure $15000 a year will go into maintenance of all of them. ($135000 total) Retrain summer labor to operate them, figure $20000 per head per year. ($960000 total) Figure operations costs (fuel, disposal, etc) will match purchase costs just to make the math a little easier.
For $1.095 million, then, we can have the municipality clear the snow from 582 miles of sidewalk. Let's divide that cost by the area covered and arrive at a new figure - $0.36/ft. Multiply that by, oh, because I'm feeling really crazy, 10 storms per year, you get $3.60/ft as the cost of municipal snow removal.
How much sidewalk do you abut? I'm willing to bet it's far, far, FAR less than the 277 feet of sidewalk frontage you'd need to be deemed responsible for to get to your $1000 property tax hike.
i agree
And someone's calling for the city to plow sidewalks when we already don't we do a particularly good job of snow removal on neighborhood streets, because we permit winter street parking.
Snow plows plow one swath down the middle and push snow into parked cars. Then folks dig their cars out, which we are required to do by law, creating big piles where cars park or big piles between the curb and the sidewalk or big piles on front lawns, if there is one.
My little home town plowed the sidewalk but not always before by dad go to it.
Urban millennials' attitudes about transportation are quite different than baby boomers. They want transit unless they need a zip car or rental for a weekend trip.
I bet in 20 years we do what Montreal does for snow removal.
Two questions
1. Did your little home town have as many miles of sidewalk as Boston?
2. When they plowed the sidewalk, where did they put the snow?
The Highest Court in MA doesn't disagree with me at all
Papadopoulos v. Target Corp specifically deals with private property, namely, parking lots (which are not public rights of way.)
Its ruling is entirely irrelevant to the sidewalk shoveling ordinances, and you'll note that several times throughout Papadopoulos specifically mentions property ownership.
It's generally understood that abutting property owners in fact do not own the public sidewalk.
think on this when refusing to shovel the sidewalk ....
....in front of your house.
we can talk all night about what is legally required...
but more importantly,
What is the right thing to do as part of a civil society?
(clue: answer shouldn't be that hard)
Wrong, anon!
Property owners, whether they own commercial or residential properties, do have a responsibility to shovel, clear and salt down the swatch of sidewalk alongside their property. The person who was irresponsible enough not to shovel his/her sidewalk, thus contributing to this horrible death will be lucky if s/he doesn't get involved in a major, expensive civil lawsuit for negligence and wrongful death.
Have you re this thread yet
Okay, Anonymous and Swirly were merely peddling in conjecture, but we now (I.e. before you posted your thing) this death has nothing to do with an unshoveled sidewalk. Nothing! Nada! Zilch!
Don't get me wrong. Unshoveled sidewalks piss me off perhaps more than the average person, but let's not assign blame to the wrong people here.
Um, okay
Luckily, we have 2 UHub posters as eyewitnesses to this accident.
no i wasn't there.
I was arguing that if the deceased was walking in the road because the sidewalk was obstructed, and if property owners have a legal obligation to clear the sidewalk, then that's called contributory negligence.
SwirlyGrrl asked the question:
Fair enough
I read it as seconding her viewpoint, which was basically assigning blame without the facts. Ironically, there is someone who does the same thing when cars come into contact with people, bikes, and the like, and he usually is just as knowledgeable.
Of course, now the word is that the guy was in a crosswalk, but you all seemed to have fun discussing the responsibilities of property owners, so whatever.
about signing blame
Waquiot, that is exactly the issue we were exploring-- the question of whether the causes of accidents in cases of manslaughter ever include contributory negligence. Tonight WCVB reported some new information: There was a shovel on the street near where the man was struck and killed.
I got ticketed once for not shoveling. We had a dusting of about 1/2". I'm diligent about shoveling so I was pissed. That day I went to work in the morning and returned home to a ticket.
Don't get me wrong
I'd be with you 100% if this was the issue with this accident today, just like when the other guy talks about how pedestrians should to be more visible at night. And again, I think my comment was more towards Swirly, who has thankfully gotten it from other posters.
I know "accident" is now a forbidden thing when it comes to incidents like this, but whatever the case I would prefer to know the facts before saying that this or that is to blame.
accident
Accident implies no fault. I think rather than talking about assigning blame, we'd do well to talk about cause.
Not negligence if you have no duty
And the city can't offload its duty to the abutting property owner through an ordinance. The duty is city to everyone for the sidewalk, building owner to city for shoveling (or else fine). This does not then translate to abutting property owner to everyone potentially injured on the sidewalk. In terms of moral code and neighborliness, sure, but legal obligations and financial liability, nope.
http://masscases.com/cases/app/19/19massappct359.html
"if"
And if your mother had wheels instead of legs, she'd be a bicycle.
Way to create a stupid irrelevant derail. Why don't you, and all others in this stupid thread, just give it a rest until a few facts are established?
Also, depending on the actual
Also, depending on the actual time of the accident, it may not be possible to lay at some property owner's feet for inaction. The city ordinance actually refers to clearing snow within three hours after snow stops or, if it stopped overnight, within three hours of sunrise.
Also, one of the properties abutting that intersection is a city playground.
Well the body was in the crosswalk
But don't let that stop you from creating an uninformed rant suggesting the cause was failure of some (many?) to shovel their sidewalks without having a clue if that was a cause or not. Can you ever just post something like - "sad news, thoughts with the deceased and the driver who caused the accident"?
Solutions require inquiry
Murmuring reflexive and ritualistic phrases doesn't prevent future sad newses from happening.
If we don't talk about the causal factors of collisions, we can't possibly address the contributing problems and reduce the amount of "sad news and condolences" to be muttered. It really is that simple.
Also, as Anonymous noted above, I asked a general question about investigations and liability, not a specific one about this incident (which was not possible, absent info). But, hey - don't let awareness of your projections interfere with a good rant about what other people must be ranting about, but clearly aren't.
Still closed at 2:20pm.
Cant imagine the news from this will be anything but bad.
Somebody reporting
The Herald has an update. A male in his sixties, a dump truck almost certainly plowing. The driver stayed and is cooperating. Looks like it might go down to sun glare from the way the cop was talking.
?
Man shoveling-out his car killed by snow plow driving to close to man shoveling-out his car?
Sad.
Thoughts and prayers to the victims family and friends.
How would Vision Zero have prevented this?
They think they can get traffic deaths down to zero, so what do people think their answer is to snow storms?
Dangerous Intersection
Globe reports no stop sign or traffic light at intersection ; quotes numerous resident reports of past hits and near-misses at the crosswalk, usually involving trucks.
I get around town,
and it has come to my attention the 'up-scale' neighborhoods, including foo-foo Back Bay, along with neighborhoods top heavy with 'millennials' (read: college age and recent grads), hipsters and yupsters are the worse when it comes to un-shoveled sidewalks. Maybe it's just hard to shovel snow wearing fancy ass eurotrash shoes and skinny girl pants. Maybe the city does need to start issuing hefty fines. The situation on places like Newbury St., Charles St. are particularly egregious.
That sucks
Dying in the cold.