With warm weather heading our way it’s time to return to our city’s annual debate about use of one of Newton’s most treasured resources: Crystal Lake. The TAB is reporting that a group of protesters plan to demonstrate Sunday in hopes of reversing the city’s ban on swimming outside of the designated swim area at designated hours. Good idea? Bad idea? Vote in our poll and dive into the conversation.
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Aldermen —
At a time when parents are upset with the city because junior doesn’t have enough time to play a recorder, are you really willing to ask yet again this summer for highly trained enforcement officers to sit in an idling car for the purpose of making a few homeowners happy? This is a classic loss leader for enforcement — little benefit, high costs of enforcement, and zero revenue.
Would you as our rule-makers like to make this work? Ok, calculate a revenue point with the average number of daily offenders and true enforcement costs and set the fines 2 times that break even. (Assumes enforcement will have some offender impact.) But let’s be fair to those offenders — let’s make ALL enforcement work, not just swimming hole enforcement. Lets ticket EVERYONE that drives 35mph in a 30 zone. Let’s fine EVERYONE that lets a dog roam down a mostly deserted path without a leash. Do this fairly — rules are rules, right? The purpose of many rules involves safety so let’s go all out with a serious intent!
Of course for myself — I don’t want a police state. I don’t care if someone is taking a small risk swimming alone — same as I don’t care if someone goes mountain climbing.
The more rules you make, the more enforcement costs we have. We have a very slim budget — do the right thing and help keep Newton a financially sound and police friendly place to reside.
[Up next — lawn noise offenders…]
Before making any determination — has the law dept advised the BoA if this body of water is Newton’s property in which it is free to make rules?
I agree with Hoss. It’s beyond ridiculous having a police cruiser idling on Lake Ave. to keep people from swimming. I’m not proposing this as a solution, but you could hire 3 lifeguards for what that costs the city.
Bigger picture… Freedom comes in many forms. I laugh at people who say we live in a “free country,” because we clearly do not, [and I could list a dozen examples off the top of my head to prove that point]. Here’s one example of how citizens cannot even enjoy freedom on a local level. When the government keeps you from taking a swim in the local lake, they are not only infringing on the rights of that individual, they are contributing to a further erosion of freedom on a broader scale.
What do other communities do? I know other states don’t police this at all in this way. Post signs and let folks swim. Make it adult only (or adult supervision) perhaps. But I’ve always just assumed this was a prohibition put in place by the neighbors.
@fignewtonville – yes many other communities in MA do as you describe. In particular, the far more treacherous town ocean beaches in many towns are swim-at-your-own-risk on off hours.
So, let’s say the city decided that we no longer need lifeguards at the beach at Crystal Lake; after all folks should be allowed to do as they please, right? We know if someone died during a period where it would seem reasonable that lifeguards be there, and the family sued, who believes the city wouldn’t be on the hook?
Perhaps some of our readers who are lawyers can opine on what liability the city takes on by extending this to the rest of the lake, if the city were to decide it’s OK for folks to swim wherever and whenever they want? If someone were to die, I’d imagine the case being made that even though the city says you swim at your own risk, a suit would be filed and might well be successful. The city’s lawyers at least need to think about that, no?
BTW – I think it’s a bit odd that the response by Parks & Rec to the request for a “swim at your own risk” policy is to institute new civil penalties.
In the Patch article it says “DeRubeis (Parks & Rec Commissioner) said the committee believes a civil fine ordinance must be worked out before a swim at your own risk policy is considered” – I guess I just don’t get why. It sounds more like a tightening of the rules rather than a loosening.
@Dan – I’m no lawyer but if the liability issues are as dire as you suggest, how are so many other towns able to have a “swim at your own risk” policy at far more dangerous swimming spots.
Here goes…..No.
I don’t think this is a good idea at all.
First of all, the police would not have to be “wasting” time and gas sitting by the lake if the “adults” that are the violators
stopped breaking the law and abided by the rules. What a great example these people set for their children. Break the rules whenever you want and defy the police and that’s okay.
Now, if you don’t like the rules, you can certainly go about trying to change them but simply breaking them because you can does not make it right.
I do live in Newton but I do not live near the Crystal Lake. I do know that that this body of water is too small to sustain the kind of use it will get if the flood gates are opened and swimming is allowed anywhere people want.
The neighborhood can not accommodate the parking issues that will certainly arise. It’s bad enough now when people come to swim in the legal area of the lake. So the police that are wasting their time and gas patrolling the lake will now be spending it responding to the inevitable rise in parking complaints, writing tickets and towing cars.
There are no bathroom or changing facilities in any area other than the bathhouse. One of the many complaints I heard over the last few years was people in various stages of undress as they changed clothes before or after swimming. Naked adults on the shoreline is not appropriate and neither are naked children (think David Ettlinger).
Then lets discuss the bathroom issue. If there isn’t one, we all know what people will do both in and out of the water.
Dogs….off leash and peeing and defecating at will. Delightful.
Trash. Can you just see the picnic areas sprouting up on every available piece of ground? If you can’t, take a ride to Concord and walk around Walden Pond in the summer. You’ll see what I mean.
And then there is the liability issue. There will be NO way of controlling who comes to the lake to use it, either during the day or at night. When someone drowns, and rest assured someone will, who will be responsible?
Crystal Lake is a lovely little water hole that is not big enough or located in an area that can sustain the kind of use it will get. It will be ruined, quickly. And that will be the biggest tragedy.
Every spring and summer, the aldermen are deluged with emails about either strengthening enforcement of the laws or eliminating them altogether in favor of a swim-at-your-own-risk policy at Crystal Lake.
The Parks & Recreation Commission, and not the Board of Aldermen, sets the rules at Crystal Lake. The BOA has nothing to say about it. And while I have been drowning in emails this week begging us not to support civil enforcement penalties, there is nothing even related to that which is docketed with the BOA.
Finally, the law department has cast its bread upon the waters and assured us that so long as the City does not charge a fee, it is not exposed to liability for allowing people to swim at their own risk at Crystal Lake. You can find more information here.
Thanks Ted. Adults swim at their own risk. TheWholeTruth is overestimating the increase in use just by allowing it to be Swim at Own Risk.
Keep the lifeguards so there is supervised times that kids can swim.
I few responders should consider whether it makes sense to close all Newton supported athletic fields and facilities. Imagine that we invite children and adults to engage in very risky activities that can and have resulted in serious injury and death. In fact we make it a requirement of passing through school to take these risks!
If an open field tackle doesn’t subject taxpayers to costly risk — then why would a swim-at-risk do so?
Personally, I think we should do it, but perhaps first as an experiment, and after a review of legal liability. If it turns out that there are significant problems – trash, unaccompanied children, large numbers of out-of-town folks, and such – then we turn it off and go back to current practice.
TWT — A lot of what you mentioned are not the act of swimming. Nudity, parking, pets, etc., have their own rules.
Ted Hess-Mahan — Sorry I addressed your board. Point well received.
I can’t really imagine folks from other communities traveling to the lake. Yes it will increase crowds to some degree. But there are far nicer swimming holes. And the ocean is not that far away.
I agree with the folks who say lets try it as an experiment during daylight hours.
@fignewtonville:
Couldn’t disagree more. There may be nicer swimming holes but not on the Green Line. In fact when I lived in Brookline I had a friend in Newton buy a season pass for me (they were only available to residents) and I took the T to the Highlands almost every night after work for a swim.
Yes, I guess I was breaking the rules then but as a parent, I wouldn’t think of freelance swimming in the Lake now. And I can’t understand how parents swim with their kids in plan view of the no swimming allowed signs now. What kind of lesson is that teaching them?
@Kim
Time will tell how much of an overstatement, if any, I made.
@Hoss
You are correct. But the things I mentioned are collateral damage.
Sorry but I just disagree that this is a good idea.
@Whole Truth– Swimming in Crystal Lake aside, because everyone is entitled to their own opinion about that…
I have to take issue with your criticism of rule breaking in general. Have you forgotten that you live in a country founded by rule breakers, who dumped a bit of tea into Boston Harbor?
If we waited for those in power to change things, things would never change. Civil disobedience is as an essential ingredient of democracy. If Rosa Parks had done things your way, African Americans would still be riding in the back of the bus. Without rule breakers alcohol would still be illegal, and the national speed limit would still be 55 miles per hour. And while these things have very little to do with swimming in Crystal Lake, I thought I’d just give you a reminder about the vital role that civil disobedience plays in our society.
@Mike
Thanks for the history reminder but I think it’s a little over the top. IMHO.
I’m all for positive change as long as people go about it the right way. And I understand that there are times when breaking the rules might be the only way. But this is not one of this times. Not yet anyway.
Going thru the process to try and affect change is where this needs to start. Having a demonstration to voice your opinion is a perfectly good way to do that. Going before the appropriate boards or commissions is also a good avenue.
Hopping fences and thumbing your nose at the Police is not how this should go.
Life guards and “swim at your own risk” are totally inconsistent. Either you have life guards on duty or you require individuals to assume the risk of harm if they choose to swim in an unguarded area In theory the city could hire more life guards, but it would be a whole lot more than just 3 or 4 to cover the area. Speaking as the parent of one of those life guards I do know that they have to be (1) lake certified which requires a degree of training more than necessary for swimming pools and (2) you always have multiple life guards on shift with some on guard while others have a safety break. This is really one of those situations where if you are going to undertake to protect people by supplying life guards then you either do it well or not at all.
Lisap — If the two areas — “guarded” and “unguarded” — were one mile away on the same lake would you still have this all or none opinion? In other words, are you concerned the public at times might be confused as to whether a lifeguard was present?
@Whole Truth– I’m not advocating anyone disregard the police, especially the NPD who I have a lot of respect for. So if an officer tells someone to get out of the lake, they should absolutely follow that instruction. But the police didn’t make this rule, and they can’t enforce it 24-7. You can see from Alderman Hess-Mahan’s posting above, the no swimming policy comes from the Parks and Recreation Commission. I have no problem with people swimming against the tide to challenge the Parks and Rec. Commission. I think that’s probably the most effective way to get this rule changed.
I am not a lawyer, don’t even play one on tv…but to say that putting up a sign that says “swim at your own risk” takes away all the cities liability seems rather silly. Why dont we do that all year round and save money on lifeguards? I can’t even believe the city would say such a thing and I can’t believe lawyers would agree and not question it (even if it isn’t there field of expertise). I have learned over the years (living in a plaintiff attorneys household) that nothing is judgement proof. People can’t tell me that if the city does something that causes a drowning, then because there’s a sign up saying that people can swim at their own risk then the city isn’t liable. There are situations whereby the city is liable sign or not. What about in the case of dyslexic swimmers, or two swimmers who get into a fight and one drowns, etc. I just don’t believe it…at all.
There’s where you would be wrong Tom. Mass. Gen. Laws Chapter 21, Section 17C(a) provides in relevant part:
“Any person having an interest in land including the structures, buildings, and equipment attached to the land, including without limitation, railroad and utility corridors, easements and rights of way, wetlands, rivers, streams, ponds, lakes, and other bodies of water, who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor, or who leases such land for said purposes to the commonwealth or any political subdivision thereof or to any nonprofit corporation, trust or association, shall not be liable for personal injuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of wilful, wanton, or reckless conduct by such person. Such permission shall not confer upon any member of the public using said land, including without limitation a minor, the status of an invitee or licensee to whom any duty would be owed by said person.”
Thanks Ted, what would happen if the city created or knew of a dangerous situation that they should have taken care of but neglected to do so and someone drowns due to the situation. Sign or no sign I would think the city is liable. You may be right, but I still have my doubts.
Sorry, if I sounded angry last post, I wasn’t…just the way I write.
Ted, I bet if I researched it I could come up with something that opposes MGLA chapter 21 Sec 17C.
Last comment, Ted, my understanding is that Crystal Lake charges a membership fee. Doesn’t a membership fee constitute a “charge or fee” on the land, making MGLA ch 21 sec 17C pointless?
Tom, the statute is pretty clear that absent wilful, wanton or reckless conduct, the city would not be liable. Negligence would not expose the city to liability.
The city charges a fee to enter Crystal Lake during July and August and only in the designated area. By definition, swim-at-your-own-risk in other than the designated area for supervised swimming is not covered by the fee and, as the name suggests, places the risk entirely with the swimmer.
That is not to say someone could not sue. Ten years ago, the city was sued by a student who was injured in cheerleading practice alleging negligence, and negligent hiring and supervision of the coach. It went all the way to the Supreme Judicial Court, which upheld the school’s consent and release form signed by the student and her father to permit her participation in cheerleading activities.
In reaching its decision, the court noted that the student and her father had ample time to read and understand the release before signing it, that cheerleading activities were not deemed to be compelled nor essential, and that releases were favored as a matter of law in Massachusetts. It stated that to hold releases unenforceable in such circumstances would expose public schools, which offer many extracurricular sports opportunities, to financial costs and risks that would inevitably lead to reductions in those programs.
What all that means is that it would come down to the facts of the case. As long as the city does not create a hazardous condition and put up signs giving notice that no lifeguard is on duty and that it was “swim-at-your-own-risk,” and does not charge a fee, it should benefit from the protection of the statute. I have other concerns about allowing increased, unsupervised use of Crystal Lake, mostly environmental, but I am satisfied that the city would not necessarily be exposing itself to liability by permitting swim-at-your-own-risk.
@Mike,
I am clear on who has the power to change these rules if they see fit.
If you are not in favor of disregarding the police then you will not be in the off limit areas of the lake in the first place.
The police don’t make any of these rules or laws but they have to deal with people who break them. Whether its swimming in the lake or not shoveling their sidewalks, or taking in their trash barrels on time, or cutting grass before or after hours…its the police that get these complaints and have to deal with them.
Again, by all means if you don’t like the rules, work to change them. But until they are changed, be an adult and play by them.
Ted — You seem to have conflicting sentences here: “the statute is pretty clear that absent wilful, wanton or reckless conduct, the city would not be liable. Negligence would not expose the city to liability.”
Doesn’t the first sentence (in part) define negligence?
@Hoss, My concern is with the misperception that the city would only need to hire two or three more lifeguards to provide proper coverage for the coves. When you provide lifeguards you have to consider not simply whether you have enough personnel to rescue a swimmer but also enough backup to ensure that the guard doesn’t become a drowning victim as well.
Like Ted I too have environmental concerns about increased swimmer load at the lake. It’s my understanding that Crystal Lake is a “kettle pond”, in other words it’s essentially a giant puddle. It does not have any water springs or streams feeding into it ensuring a constant supply of fresh water. Given that it is surrounded by lovely homes with well manicured lawns, there is chemical run off from herbicides, pesticides and fertilizers applied by adjacent property owners which may impact the water quality and vegetation growth. Anyone who has ever dealt with swimming pool maintenance knows that there is a maximum swimmer load beyond which your pool chemicals and filtration system cannot maintain water quality. I do not know what that maximum swimmer load is for Crystal Lake, but without some natural or mechanical mechanism to maintain water quality I would think that it is a reasonable question to ask.
Lisap — I now understand — I thought you were giving a legal concern. (The lake must have a spring. Kettle means it has no land-level stream feeding it. The other possibility would be it’s at a depth where the water table is essentially exposed. The size of this kettle and the clarity of it suggests were are natural thermal currents. But none of this dismisses what you said other than it’s not a static puddle. If it were, it would be green, rather pungent and not swimable)
Here’s my “limiting principle,” as Anthony Kennedy would put it. Since the load on the lake and neihborhood is the big concern, permit swim-at-your-own-risk only when demand will be limited — say, when air temperature is less than 60 degrees. I believe the water quality problem gets more acute with higher temperatures, so a temperature cutoff might help with that.
@Hoss, Without getting into a detailed discussion of tort theory, simple negligence means that there was a failure to exercise due care or, in plain language, you weren’t careful when you should have been. Acting in a manner that is wilful, wanton or reckless means essentially that you knew that there was a significant risk of harm and you disregarded that risk. A good example of this would be the criminal charges brought against two individuals for their actions in the days following a drowning at an MDC pool in New Bedford. The employees weren’t charged for causing the drowning death, but for continuing to ignore the horrible conditions in the swimming pool and continuing to keep it open to the public for two days after the victim went missing.
Hoss – thanks for that info on the water table – that does makes a lot of sense now.
@Hoss, negligence is the failure to exercise a standard of care that a reasonably prudent person would have exercised in the same or similar situation. Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. The quality or state of being negligent; lack of due diligence or care; omission of duty; habitual neglect; heedlessness. In short, negligence is the same as carelessness.
Wilful, wanton or reckless conduct means a reckless disregard for the consequences of one’s behavior. It is more than mere negligence or gross negligence; it is equivalent in its results to an act of willful misconduct. It is a conscious and intentional wrongful act or omission of a known obligation with reckless indifference to potential harmful consequences.
@Greg, I think you might be on the wrong thread.
Lisap & Ted — Testing my understanding – if someone died in the presence of a lifeguard who did not have a life-ring and the reason for not having the proper equipment was:
a) she forgot it, no excuses;
b) she was high on meth that day, clearly couldn’t focus on things;
c) she didn’t like the people at the pool and reasoned they weren’t worth saving anyway.
I’m pretty sure a) is what you’re calling negligence. What is b) and c)?
(Off topic sorry — very curious though) Last post here
Actually, you can swim at Crystal Lake. Go down to bath house, pay to swim, and the money goes toward the maintenance of the lake and keeping it from becoming an algae-ridden public bathroom. In return, we get a clean lake and you get a safe swimming experience.
It also helps avoid unnecessary tragedy. Didn’t Public Safety spend a fortune recently trying to find a swimmer someone thought had gone missing at Crystal Lake?
Also, it’s easy to kill an ecosystem; it’s very difficult to restore it.
Bill– What do you think has more effect on the ecosystem… Swimmers or storm water runoff from the roads and homes that surround the lake? And you mention the City spending a “fortune” searching for a swimmer… That’s a drop in the bucket compared the 600 man hours NPD spent last year enforcing this ban. The lake is public property. Owned by the people of newton. The people have a right to access this resource.
Is it really a “drop in a bucket” to send fire trucks, divers, police etc. to search a lake? I doubt it.
Mike: I have no problem with people swimming in the pond. Just go to the bath house and help pay for the lake to remain the beautiful, safe, well-maintained pond that it is, and don’t free-load on those who do. It does not remain aesthetic out of chance. And once that lake gets stressed, and it would not take much to do that, nobody is going to want to swim in it. Not even the two swans that have been there the last couple of weeks. The swans will be grossed out. Let’s not gross out the swans.
Seriously: There is no upside to changing the swimming rules there. It’s just asking for trouble.
What Bill said. (Although it would be great if the city could find a way to extend the swim season til Labor Day)
@Bill – you might not like the idea, quite reasonably, for various reasons but there is definitely an upside. A number of our citizens would be able to use their pond at the time of their choosing (i.e today, or before/after the lifeguarded beach closing/opening time).
I don’t have a dog in this fight since I don’t swim in the pond and I don’t live in the Crystal Lake neighborhood. I also don’t have any illusions about swim-at-your-own-risk being enacted. That being said, I don’t think that its an unreasonable desire for an adult to choose to go for a swim when they want in the publicly owned lake, so long as they’re not bothering people – something that happens all over MA without the dire consequences that the opponents seem so worried about.
@Bill Brandel – I couldn’t agree with you more. However, there is another option: the city could simply make all swimming at Crystal Lake “swim at your own risk”. Eliminate the life guards, cancel the swimming lessons and close the bath house. Let the residents of Newton go swimming off the soon to be very dirty beach or at the coves. That would certainly free up the police who currently babysit the coves. On the down side, it would mean that the police and fire would be kept quite busy covering the many calls which would otherwise have been handled by the life guards.
@Greg – there is an alternative – the Gath Pool remains open until Labor Day.
Has sensitive international issue of waste treatment hit Newton? Where is this “public bathroom’?
Jerry: We all own the high schools, but that doesn’t mean we can go use it any time that we want. It’s a resource to be managed.
LisaP: Or, we could just let residents wrench open fire hydrants in their neighborhoods. It could really liven up those dull block parties.
@Bill. I’ll keep that in mind for the next Dickerman Road get together.
@Bill– I noticed you didn’t answer my question. The fact is that swimmers present far less of an environmental hazard than storm water runoff. So let’s keep the water quality issue in proper perspective. And while I certainly support your argument for a user’s fee, the city would still be better served financially by eliminating the enforcement costs. 600 man hours of police time last year! That’s what The Tab reported. An incredible wast of resources if you ask me.
@Lisap– Why is it either/or? Why can’t we leave the swimming program alone and still allow swim at your own risk in other parts of the lake?
@Mike – Because people are disinclined to pay for something when they can get it for free. Swimming lessons at Crystal Lake represent only a small portion of the revenue generated by seasonal and daily passes (about $15,000 for 2011). Clearly the swimming lessons do not generate sufficient revenue to maintain the public beach, bath house, life guards and lessons.
It is, however, free to park in the Crystal Lake lot, once again proving that in Newton we don’t want to subsidize publicly valuable activities like outdoor recreation, but we’re only too happy to subsidize driving.
What’s that? Did I hear someone say, “But, Sean, if you charge for parking in the lot, nobody will park in it, they’ll all park on the street”?
A. Somebody will pay a premium, even a small one, for the convenience. We ought to capture that.
B. Charge to park on the street in the summer.
Lisap– I don’t disagree with your premise, but it doesn’t hold water as an argument to ban swimming. Even if nobody paid and none of the $15K was raised, the city would still come out financially ahead from the savings in enforcement costs. Under any circumstances, I would still expect the city to leave the swim program in place.
Bob: It’s just a back-up plan in case people tire of the Conga Line. I think we’re good for now.
Mike: No, I didn’t answer your question because nobody is talking about banning cars from driving by Crystal Lake.
I don’t know if most know this, but something like four people have drowned in that pond. It happens. The lifeguards, college kids mostly, require specialized fresh water training. You can lose sight of someone in a few feet of water. What happens if someone gets in trouble outside of the roped area? Are these lifeguards supposed to go try and save them and put themselves at unnecessary risk because someone won’t enter through the bath house? Or just watch?
I was there one day when someone thought they saw a person go under and not come up. Three fire trucks, an ambulance, squad cars, divers, boats, Parks & Rec people, personnel support were there for hours looking for a body. Now you want to increase the chances of that? If anything, the police will spend more time — not less — patrolling the lake with this proposed change. It’s not like they’re going to shrug off the risk.
We have a nice thing going, here. Let’s keep it that way.
Bill– You’ve gone from a water quality issue, which is not really an issue at all–
To a monetary issue, which doesn’t hold up when you eliminate enforcement costs–
To a safety issue, which I’ll address now…
Yes, people have drowned in Crystal Lake and in other natural bodies of water in Newton. People have died in a number of our parks and on our [now] publicly owned golf course. And I have no objection to reasonable rules that support safety and respect the neighbors. My suggestions would be no nighttime swimming and children must be accompanied by an adult.
@Mike – Do we know for sure that Newton has had to expend additional money for “enforcement” (in quotes because I haven’t actually noticed any real enforcement – simply police presence)? Yes there are cruisers parked near the coves at times, but I also know that they leave when called to respond to an incident. Unless the city has had to hire additional officers or add shifts to cover the times when an officer is sitting at the lake, I’m not sure that you can really claim that there is any savings by eliminating that enforcement. I similarly often see several police cars at a time sitting in the parking lot on Crescent Street. Their mere presence alone is a deterrent to speeding, as the presence of police at the lake is supposed to be a deterrent to illegal swimming, but that does not necessarily equate into specific enforcement costs.
@Bill, When the next person is reported missing at one of the coves, I can assure you that the lifeguards will once again do what they have been trained to do and try to render aide and rescue. These young people take this work very seriously and though they might not be legally required to go out and search, I don’t think you’ll find a single one who doesn’t think it their moral duty to try to find and rescue a drowning swimmer whether they went off the beach or a cove. It’s true that there have not been very many actual drownings. I think a more informative number would be the number of rescues and assists the guards perform each week which unfortunately I don’t know.
Lisap– The Tab reported a police source attributing 600 man hours to enforcement.
@Mike – Actually the source of the info was Ald. Danberg according to the report, so the info is still dubious imho.