Gross Negligence

Posted by John B. Kelly

Did the city do anything wrong regarding the resurfacing of Edgerly Road? After all, as some passersby inquired, the city was going to put ramps down eventually, wasn't it? Shouldn't that be enough for us?

And when I repeatedly told DPW Inspector Peter Sterritt that temporary ramps had to have been installed on Friday (four days earlier), when the road was first scraped of its top 3 inches, he kept responding "we are here to do it now!" When this wasn't enough for me, he shrugged in that "what-can-I-tell-you?" sort of way. His message was that leaving ramps unpatched was standard operating procedure, and that there just was no way around it-- and nothing that we, disabled residents of The Fenway, could do about it. But he was wrong.

What the city did regarding Edgerly Road, and has been doing throughout the city for years, is committing "gross negligence" by violating Massachusetts state law. Let's take a look.

The Massachusetts state Architectural Access Board is part of the Division of Public Safety, and has the power to issue regulations that become part of the state building code. These regulations basically follow those of the Americans with Disabilities Act (ADAAG) and are contained in 521 CMR (Code of Massachusetts Regulations).

Section 2.2 of these regulations states

It is the intent of 521 CMR to provide persons with disabilities full, free and safe use of all buildings [including "public sidewalks and ways"] and facilities so that all such persons may have the educational, living and recreational opportunities necessary to be as self-sufficient as possible and to assume full responsibilities as citizens.

That sure sounds nice.

Violations of these regulations "shall constitute gross negligence" [2.3] severe enough to warrant disciplinary action against professionals registered with the state, up to and including decertification.

The city is in "gross negligence" (while displaying obvious callous disregard) of section 3.10 which requires that

Temporary buildings or facilities, including but not limited to reviewing stands, temporary classrooms, bleacher areas, exhibit areas, temporary banking facilities, temporary health screening services, or temporary pedestrian passageways around a construction site, shall comply with 521 CMR.

"Shall comply" does not mean four days later, as in our recent case with Edgerly Road, it means immediately.

When DPW Commissioner Joseph Casazza told Chris Lovett of Neighborhood Network News that he was responding to our complaints by sending out the inspector and the patching crew, he was depending upon our general ignorance of the law. He has the arrogance to put out this statement as if he is a responsive city official pushing a contractor to comply, rather than the grossly negligent opportunist he appears to be.

I label him an opportunist because, when the opportunity allows, the city does not require maintenance of access, which in this case entails temporary ramps providing a minimum 36" passageway. He did it last year on Peterborough Street, and then -- even after a lot of complaining from residents trapped in their houses -- allowed the same thing to happen on Hemenway Street one week later.


The Northeastern walkway at Hemenway Street, across from Forsyth Street. August 2004