Here's the text of my guest column in the Watertown Tab, Friday, October 22
Not passing shoveling ordinance protects bad neighbors
By Glen Mohr
Friday, October 22, 2004
When is common sense not common sense? When it's simply a label behind which to hide agenda-driven politics the way one local political action group is doing. So at the risk of sounding like sour grapes, I'd like to provide some real common sense about the residential snow-shoveling ordinance. And if Mr. DiMascio can stop his chest-beating victory celebration for long enough to read this, perhaps there can still be a substantive debate.
Mr. DiMascio wrote: “Among other problems, this ordinance is a trial lawyer's dream. Any language that requires private persons to clear public sidewalks could shift additional liability onto homeowners. Anyone injured could bolster his or her case by claiming a homeowner violated a town ordinance. Further, the attorneys we've spoken with agree; the odds of a private citizens being successfully sued are arguably increased by such a measure.”
The issue with liability and snow is that if you leave it alone, it's considered an act of God, and if someone slips on your untouched walk, you are not liable. In Massachusetts, the courts have held that although a property owner owes a duty of reasonable care to anyone lawfully on the premises, “this duty is not violated by a failure to remove a natural accumulation of snow or ice.” As soon as you clear the snow, however, then you are responsible for the condition of the walk and you can be held liable.
It is possible that a town ordinance could help a negligence case against a homeowner who chooses not to clear his or her walk. But there's a contradiction here that doesn't make sense – certainly not common sense. At the same time that he cries about additional liability, Mr. DiMascio's position (and that of the Town Council and this paper) is that people should clear their walks voluntarily and the town should encourage them to do so. Whether you shovel because an ordinance says you have to or whether you do it voluntarily, you could still be held liable for an injury.
The only way you would not be liable is if there's no ordinance and you don't shovel.
Not having an ordinance only protects those people who choose not to clear their walks – who choose not to be considerate neighbors. Why do these people deserve the town's protection? Why do Mr. DiMascio and most of the Town Council think we can have it both ways?
Mr. DiMascio also wrote: “This could have an immediate financial impact on every resident. Property owners would be forced to purchase the appropriate insurance. Assuming such coverage were available, the premiums will increase. Those costs would eventually be passed on to tenants.”
In fact, we homeowners all have insurance that covers us if we are held liable for an injury sustained on the sidewalks around our house. It's called homeowners insurance. This “appropriate insurance” is widely available. Insurance companies base their premiums on what they pay out in claims. To cause an increase in premiums, there would need to be a substantial increase in claims. This means a substantial increase in lawsuits in which the homeowner is judged liable. Again, a snow-shoveling ordinance might arguably (Mr. DiMascio's qualifier) change things only for the people who aren't shoveling and then only if they got sued. Will there really be such an increase in successful suits against those people so as to cause all of our premiums to increase? Common sense says no. But I am not just relying on common sense. I spoke with multiple insurance company underwriting managers about this, and they all said that it would be highly unlikely that there could be an increase in premiums resulting from such an ordinance.
Just a few words about Councilor John Portz. As chairman of the Ordinance Committee, he was charged with doing the research on whether this ordinance made sense. And he did it, which is much more than can be said for the previous Ordinance Subcommittee members who relied on their “common sense” when they refused to pass it on to the full council. John Portz contacted other municipalities that have snow-clearing ordinances, he talked to lawyers and insurance companies. He did the work that we elected him to do and he voted for what he thought was in the best interest of our community. And what did he get in return? A lack of support from his fellow councilors and name-calling from a so-called protector of the public interest. What a shame.
It's a real travesty that one outspoken citizen was able to cow our Town Council into making the wrong decision.
Glen Mohr lives on Commonwealth Road.
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