A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 19-24, regarding pedestrian safety improvements at the intersection of Day Street and Massachusetts Avenue, and Awaiting Report 19-31, regarding general safety improvements at the intersection of Spring Street and Third Street

Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai Samuel A. Aylesworth Keplin K. U. Allwaters Arthur J. Goldberg Deputy City Solicitor Sean M. McKendry Megan B. Bayer Brian A. Schwartz Vali Buland SIGHINE First Assistant City Solicitor Public Records Access Officer Jennifer Simpson CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 November 13, 2017 Louis A. DePasquale City Manager City of Cambridge City Hall, 795 Massachusetts Avenue Cambridge, Massachusetts 02139 Re: Response to Awaiting Report No. 16-52 of 6/13/16, Calendar No. 3 of 6/13/16 Re: Report on the City's Use of Push-Button Caution Lights at Crosswalks and t Determine any Decrease in Pedestrian Legal Rights Should they be Hit; an Awaiting Report No. 16-66 of 8/1/16, Council Order No. 0-12 of 8/1/16 Re: Report on how Traffic Laws Pertaining to Crosswalks are Currently Enforced Increase Pedestrian Safety Dear Mr. DePasquale: I write to respond to the two above referenced Council Orders, having conferred with Police Commissioner Branville Bard and Director of Traffic, Parking and Transportation Joseph Barr. I. Response to Awaiting Report No. 16-52 of 6/13/16. A. Legal Analysis In Awaiting Report No. 16-52 of 6/13/16, the City Council has asked for a response to the question regarding the "City's Use of Push-Button Caution Lights at Crosswalks and to Determine any Decrease in Pedestrian Legal Rights Should they be Hit". Crosswalk signals that can be activated by pedestrians by use of a "push button" are frequently used to assist pedestrians at busy crosswalks that do not have a police officer assisting with traffic, which are known as "uncontrolled crosswalks." In Massachusetts, the Appeals Court has interpreted G. L. c. 89, § 11 to mean that crosswalks must be honored by a motorist even in the face of a traffic control signal which permits the motorist to proceed. If a pedestrian has entered an uncontrolled crosswalk, whether there is a traffic control signal indicating that the pedestrian may proceed or not, the pedestrian has the right of way on the side of the roadway the pedestrian is travelling on so long as the pedestrian provides the motorist reasonable time to stop. G. L. c. 89, § 11. Page 1 of 4

However, under the law pertaining to negligence in Massachusetts, a pedestrian injured by a motorist who brings an action against said motorist may be determined to be partially responsible by a jury if the pedestrian is found to have acted negligently. A pedestrian may be found to have been contributorily negligent if the pedestrian enters a crosswalk against a traffic control signal. When determining whether the pedestrian was negligent, if the jury determines that the pedestrian's negligence contributed to the cause of the collision or the cause of the pedestrian's injuries, the pedestrian's damages as determined by the jury may be reduced by the percentage of the pedestrian's negligence. If the pedestrian's negligence is determined to be greater than that of the motorist, the pedestrian will be precluded from collecting any damages. See G. L. c. 231, § 85, the Massachusetts comparative negligence statute, which provides for the diminution of a plaintiff's recovery by the percentage of his or her negligence, and the barring of recovering against a defendant if such a defendant's negligence is deemed to be less than the total amount of negligence attributable to the plaintiff. It is unclear whether the installation of push-button caution lights at crosswalks alone would necessarily cause a decrease in a pedestrian's legal rights in the event that the pedestrian is hit by a motorist in a crosswalk, given that there are a number of variables that will be analyzed to determine who caused the collision in whole or in part. B. Yielding Study The Traffic, Parking & Transportation Department ("T&") recently completed a study of yielding behavior at pedestrian crossings with a range of different crosswalk warning devices. The following types of warning devices were studied at the following locations: • Static Signage - Massachusetts Avenue @ Day Street: The basic form of crosswalk warning is static signage, which consists of a yellow crosswalk warning sign facing each vehicular travel direction. This style of crosswalk is the most common form of warning for drivers approaching an uncontrolled crosswalk in Cambridge, and is therefore considered the baseline condition for comparing more advanced forms of crosswalk warning and control. • Flashing Beacon - Massachusetts Avenue @ Garfield Street and Broadway @ Marriott Hotel: Flashing Beacons (FBs) are a form of activated crosswalk warnings that flash when a pedestrian crossing button located at each end of the crosswalk is pressed. These beacons consist of 12" round LED signal indications which flash for an interval that allows a pedestrian to fully cross the street, and which flash at a rate of 60 times per minute. In addition to these beacons, static signage is also present. Rectangular Rapid-Flashing Beacon - Portland Street @ Albany Street: Rectangular Rapid-Flashing Beacons (RRFBs) provide smaller rectangular indications which flash at an irregular pattern between 140 and 240 times per minute. The pattern is similar to the strobe output pattern on an emergency vehicle and has been shown in studies conducted by the Federal Highway Administration (FHWA) to attract significantly more attention due to the fast nature of the flashing. Page 2 of 4

Table 1 shows the results of these studies, which are generally consistent with the results of similar studies conducted by the Federal Highway Administration. These larger study efforts showed an increase in yielding from a baseline of 10% to 20% prior to installation, as compared to 80% to 90% after installation of RRFBs. The results of the FHWA studies are available online: https://www.fhwa.dot.gov/publications/research/safety/pedbike/10043/index.cfm. Table 1: Percentage and Number of Drivers Yielding to Pedestrians Location % Yield Yield No Yield 37% 32 19 Mass at Day Static) 43 13 77% Mass at Garfield (FB) 89% 4 Broadway at Marriott Hotel (FB) 2 26 93% Portland at Albany (RRFB) Based on the results of both local and national studies, the Traffic, Parking, and Transportation Department intends to proceed with the installation of RRFBs at additional locations where driver yielding is considered problematic, particularly on multi-lane and/or higher speed streets. Funding for expanding the number of RRFBs is available through a recent Participatory Budgeting project, as well as through the Department's regular capital funds for traffic signal maintenance and upgrades. These new warning devices must also be paired with other efforts underway to achieve our Vision Zero commitments, including education for drivers, cyclists, and pedestrians regarding proper yielding behavior, speed management, traffic calming, and enforcement. Il. Response to Awaiting Report No. 16-66 of 8/1/16. In Awaiting Report No. 16-66 of 8/1/16, the City Council has requested responses to the questions "how Traffic Laws Pertaining to Crosswalks are Currently Enforced throughout the City" and "whether there can be Stricter laws to Ultimately Increase Pedestrian Safety". The Traffic, Parking, & Transportation Department's enabling legislation, St. 1961, c. 455, gives the Director of TP&T the authority to ".. adopt, alter or repeal rules and regulations, not inconsistent with general law as modified by this act, relative to vehicular and pedestrian traffic in the streets of the city and to the movement, stopping, standing, or parking of vehicles on, and their exclusion from, all or any streets, and subject to the provisions of section nine of chapter eighty-nine of the General Laws." See St. 1961, c. 455, § 3(a) as amended. Publication is required prior to such adoption, alteration or repeal of a rule or regulation not less than once in each of the three successive weeks prior to adoption, alteration or repeal of a rule or regulation. Thus, St. 1961, c. 455 as amended, provides authority for the Director of TP&T to promulgate regulations that increase pedestrian safety on streets in the City. Although there are other statutes which allow the traffic directors of cities and towns in Massachusetts to promulgate regulations with respect to vehicular traffic and pedestrian safety, such as c. 90, § 18 which allows for the promulgating by cities and towns of special Page 3 of 4

regulations as to the speed of motor vehicles and the prohibiting of the use of certain ways by vehicles, and c. 90, § 18A which allows for the adoption of rules regulating the use by pedestrians of ways, both of those laws require approval of the state Department of Transportation prior to enacting a proposed regulation, and in the case of speed regulations, both the state Department of Transportation and the Registrar of Motor Vehicles must approve any such proposed regulations. There is no such state approval required pursuant to St. 1961, c. 455 as amended for any regulations the Director of TP&T may promulgate in order to increase pedestrian safety. The Police Department reports that in training new recruits, they emphasize the importance of crosswalk and speed enforcement and the impact that lower speed has on survivability rates for motor vehicle crashes involving pedestrians. The Police Department will be applying for a STEP ("Sustained Traffic Enforcement Program") Grant and is also awaiting a response for a Highway Safety Division Enforcement Grant that it has applied for; both grants are administered by the Commonwealth of Massachusetts Executive Office of Public Safety & Security. If the Police Department is awarded these grants, they will allow the Police Department to dedicate more enforcement time to promoting pedestrian safety. Please let me know if you have any questions regarding the two above-referenced matters. Very truly yours, Nancy E. Glowa City Solicitor Page 4 of 4