Commonwealth of Massachusetts
Civil Action No. 1998-2397B
Metropolitan District Commission and Executive Office Of Environmental Affairs,
Now comes the plaintiff and moves this Honorable Court enter an order, in the form of a preliminary injunction, enjoining the defendant Metropolitan District Commission [MDC] from leaving piles of peat moss, dirt and other materials that create hazardous obstructions in the travel way of the Southwest Corridor Bicycle path and all other bicycle paths maintained by the MDC.
As reason, plaintiff states that this case involves severe injuries he suffered as a result of the negligence of the defendant MDC, which left piles of mulch in the middle of the bike path roadway lane of travel [see attached photographs], with utter disregard for the safety of the path's intended users, bicyclists like the plaintiff. This was despite notice from prior accidents caused by the obstructions placed in the travel lane by the defendant.
Even after the plaintiff’s accident brought media attention to the safety problems created by the defendant, the defendant still continued to demonstrate a reckless and callous utter disregard for the safety of the bicyclists who are the bicycle path's intended users, by continuing to park vehicles in the middle of the bicycle path travel lane, to pile mulch, topsoil and other obstructions in the middle of the bicycle path roadway travel lane and to place other hazards in the middle of the roadway lane of travel of the bicycle path. Plaintiff has made repeated requests that the defendant MDC cease placing obstructions in the travel lane of the bicycle path, to no avail.
This is hardly an unreasonable request. Certainly the state highway department would never leave tools, park vehicles or leave obstructions in the middle of the travel lane of a state highway. Nor would the Massachusetts Turnpike Authority allow its road crews or landscapers to park their vehicles or leave obstructions blocking the entire travel lane of the turnpike. Yet despite receiving federal transportation money to maintain the bicycle path, the defendant MDC seems incapable or unwilling of treating the bicycle path as the transportation facility it is obligated to maintain.
In determining whether to issue injunctive relief, the Court Amust balance the moving party's chance of success on the merits and its risk of irreparable harm against any similar risk of irreparable harm to the opposing party. The touchstone of the analysis is the risk of such harm in light of the party’s chance of success on the merits. [cite omitted] ... In balancing the anticipated harm to the plaintiffs against the injury to the defendants, O’Sullivan v. Secretary of Human Services, 21 N.E.2d 997, 402 Mass. 190 (Mass. 1988)
"What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. Packaging Industries Group, Inc. v. Cheney, 380 Mass. at 616-617, 405 N.E.2d 106. Since the goal is to minimize the risk of harm, if the moving party can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibility of success on the merits warrants issuing the injunction. Packaging Industries Group, Inc. v. Cheney, 380 Mass. at 616-617, 405 N.E.2d 106, at 114, citing Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977), and cases cited@ therein. It is proper to consider the affect upon the public good n considering whether to issue an injunction. Petricca Construction Company v. Commonwealth., 640 N.E.2d 780, at 785, 37 Mass.App.Ct. 392 (Mass.App.Ct. 1994), citing Edwards v. Boston, 408 Mass. 643, 646-647,562 N.E.2d 834 (1990). Indeed it is appropriate to do so in this case.
There is irreparable harm caused to the plaintiff and every other bicyclist who uses or would use the Southwest Corridor Bikepath at risk of physical injury. No amount of money damages can compensate for the deprivation of a transportation facility that is rendered unsafe because there is the everpresent possibility that an unforeseen obstacle will be in the roadway around the next bend or behind the next curve.
This discourages, even prevents, bicyclists from using the bicycle path, as indicated by the affidavits filed herewith. This also creates additional traffic congestion for motorists, along Columbus Avenue, Washington Street and other streets that bicyclists may use as an alternative to riding an at-risk facility.
Again, the state highway department would never allow its maintenance crews or landscapers to place piles of dirt or mulch across the center of a state highway travel lane or to park their trucks in the middle of the roadway lane of travel. The risk to motorists would not be considered tolerable. Likewise, the Massachusetts Turnpike Authority would never permit work crews to block the middle of the turnpike roadway.
A bicycle path, constructed with Federal transportation money is a transportation roadway no different than a state road or the turnpike. The defendant MDC has the same responsibility and duty of care for the roadway to maintain it in a safe manner, free from hazards and dangerous obstructions. There is virtually no cost to the defendant to correct the harm: all that needs to be done is to pile things on the side of the roadway and not in the middle of the roadway, and for the defendant's workers to park their vehicles on the side of the roadway, not in the middle of the roadway.
On the other hand, the hazard to bicyclists, the potential harm, and the disruption of transportation systems is great, especially relative to the costs of curing the dangerous condition. As indicated by the affidavits submitted herewith, not only has the conduct of the defendant disrupted the normal use of the bicycle path by bicyclists, the defendants conduct has been and continues to disrupt automobile traffic on such major parallel arteries as Columbus Avenue.
It is almost ridiculous and certainly unfortunate that the plaintiff, as a bicyclist who has every right to expect that he can a public transportation facility, must seek injunctive relief to be able to do so safely. Certainly, neither the Massachusetts Turnpike Authority nor the Massachusetts Highway Department would never block the middle of the roadway lane of travel with piles of mulch, topsoil or grass clippings and would never leave repair vehicles in the middle of roadway lane of travel. Certainly neither the commuting public, nor this Court nor any other Court would countenance such a reckless disregard for motorists. Bicyclists deserve equal respect and accommodation.
Accordingly, an injunction should issue forthwith enjoining the defendant Metropolitan District Commission from blocking or obstructing the roadway or lane of travel of the Southwest Corridor Bicycle Path or any other bicycle path it maintains, and further directing the defendant to maintain the bicycle paths under its jurisdiction in a condition safe for bicyclists.
Plaintiff by counsel
Andrew M. Fischer / JASON & FISCHER
47 Winter Street, 4th Fl., Boston, MA 02108