Citations in death of Oak Creek bicyclist add to push for vulnerable user law
The driver who crossed the center line and killed a bicyclist in Oak Creek has been cited for two traffic violations, after a Milwaukee County prosecutor declined to pursue criminal charges in the case.
The decision follows similar actions by district attorneys across the state, who have declined to prosecute motorists in crashes that kill bicyclists and pedestrians.
Attorneys have based their decisions on the difficulty of making a case for homicide by negligent use of a vehicle in crashes resulting from illegal actions by motorists. In response, cycling advocates have begun lobbying for a vulnerable user law that would increase the penalties in collisions that kill cyclists, pedestrians and highway workers.
The law would apply directly to the deaths of people like Sam Ferrito.
The 56-year-old was out for an early evening ride on July 17, when Joshua Chomicki, then 18, drove his 2000 Pontiac Sunfire into Ferrito, from behind.
Both Chomicki and Ferrito were traveling southbound in the 11100 block of S. Nicholson Ave.
According to his family, Ferrito was biking against traffic, near the edge of the northbound lane, to protect himself from autos on a stretch of road with a narrow shoulder and limited sight lines.
Police reports show Chomicki crossed the center line, passed into the northbound traffic lane and crashed into Ferrito, near the shoulder on the east edge of the road. Both were just miles from home.
Why Chomicki drifted so far remains a mystery.
“We don’t know. The kid doesn’t know,” said Police Lt. Randall Knitter. “Did he black out or fall asleep?”
In a statement to police, Chomicki reported he blacked out. The next thing he remembered was hearing a loud crash and seeing his windshield breaking.
He had no drugs or alcohol in his system, and was not using a cell phone at the time, according to the police findings.
Milwaukee County Assistant District Attorney Grant Huebner reviewed the police reports and a crash reconstruction prepared by the Wisconsin State Patrol.
“To prove this case, prove criminal negligence, I don’t believe the facts in this case rose to that level,” Huebner said. “Civil negligence, yes, but not criminal negligence.”
State statutes spell out the legal standards of negligent homicide by motor vehicle: that the driver caused the death of the victim; that their actions created a risk of death or great bodily harm; that the risk was unreasonable; and that the driver should have been aware they were creating the unreasonable risk.”
“I couldn’t reach the standard beyond a reasonable doubt,” Huebner said.
Reacting to the justice system’s response to her husband’s death, Marcia Ferrito said she was unsatisfied.
“We are deeply disappointed with the outcome of the investigation and the decision to not press criminal charges,” Ferrito said. “We feel the fines and citations issued are just a slap on the hand.
“He can pay his fines, keep his license and go off on his life. I wish it was that simple for my family. Our lives are changed forever.”
Sam Ferrito, a father of two, was a wedding photographer who also worked a full-time job at Rexnord. He took up biking to improve his fitness and lost 70 pounds.
“My husband was an amazing man and it’s a huge loss for our family,” Marcia Ferrito said.
Similar deaths have resulted in similar disappointments, both emotional and legal, for the families of the victims.
Earlier this year, prosecutors in Waukesha and Outagamie counties declined to issue charges in bicylist deaths.
Michael Gustman, a car dealer from Seymour, was issued a traffic citation for inattentive driving after he crashed into Kris Hanson and her husband, Douglas, riding a tandem bicycle on County Highway EE. Kris Hanson died and Douglas was severely injured.
Gustman told police he did not see the couple riding on the road.
His ticket carries a fine of $187.90. Gustman has pleaded not guilty.
In September, the Waukesha County Sheriff’s Department issued three traffic citations to Kyle Dieringer of Nashotah. Dieringer crashed into Jeff Littmann and Lauren Jensen, two competitive athletes, on a training ride on Wisconsin Ave. on Oct. 1, 2010.
The 25-year-old driver said he was blinded by the low, early-morning sun and did not see the pair of cyclists.
After District Attorney Brad Schimel declined to issue criminal charges, Dieringer was ticketed for driving too fast for conditions, and two counts of illegal passing. His fines would total $614. He also has pleaded not guilty.
In the Ferrito case, Oak Creek police ticketed Chomicki for driving left of the center line and speeding. The citations carry fines of $206.80.
Deaths like Ferrito’s have motivated the effort to provide increased penalties for motorists guilty of deadly traffic offenses - something between the 10 years in prison tied to a felony homicide by negligent operation of a vehicle and the $100 or $200 traffic ticket.
“To be clear, the intent of this law is not to exact greater punishment on the drivers who kill a pedestrian or bicyclist, but rather to raise the level of expectation for people to take necessary care when they are driving,” said Dave Schlabowske, communications director of the Bicycle Federation of Wisconsin.
“Driving a car has become almost an afterthought today rather than a right that comes with great responsibility,” he said. “People with busy lives forget the terrible consequences that lapses in concentration behind the wheel can have.
“The Bike Fed believes a vulnerable user law would help to increase the need for people to focus on their driving and take extra care, perhaps even slow down, when they are on streets with people walking and riding bicycles.”
The Bike Fed is working with state Sen. Dale Shultz (R-Richland Center) to introduce a vulnerable user law when the Legislature returns to business in January. The lobbying effort will be a focal point of the Bike Summit in Madison on Feb. 21.
49 Comments for "Citations in death of Oak Creek bicyclist add to push for vulnerable user law"
wdtrap Dec 21, 2011 6:39 AM
Chucksa Dec 21, 2011 6:57 AM
dkrueger1975 Dec 21, 2011 7:32 AM
SmallBizOwner Dec 21, 2011 8:11 AM
shawnee Dec 21, 2011 8:12 AM
SmallBizOwner Dec 21, 2011 8:14 AM
usagc Dec 21, 2011 8:26 AM
Chomicki, also going southbound, crossed the center line and much of the northbound traffic lane.
As the story noted, Ferrito biked against traffic on that particular stretch of road, which he used to connect two segments of the Oak Leaf Bike Trail.
Tom Held Dec 21, 2011 8:43 AM
Erm... driving a car is not a right. It is a privilege. Using a road is a right, but using a dangerous vehicle on it depends on how competent the driver is.
IanBrettCooper Dec 21, 2011 8:46 AM
Riding against traffic does not protect cyclists. In fact all the studies done on bicycle accidents suggest that it makes them more vulnerable to crashes. Riding on the shoulder is also dangerous. The safest place for a cyclist to be is in the center of the lane, where motorists can see him/her.
IanBrettCooper Dec 21, 2011 8:51 AM
1) I think if a trail option is available the cyclist should have to use the trail and not be allowed on the road.
2) I believe that in order to be allowed to ride your bike on roads, safety classes and a bike driver's license should be required. I have observed to many unsafe practices by cyclists in our area.
3) I do not believe a cyclist should be allowed to block traffic in a 35 mile per hour zone by riding in the center of the lane at 12 miles per hour. On many occasions I have been part of a long line of cars riding behind the cyclist at 10 miles an hour. When I am riding on a road-- if there are cars behind me I pull over and stop to let them pass. I do not make 5-6 cars follow me at 10 miles per hour just because I have the "right of way".
4) When I am biking I understand that I am the vulnerable rider and do not put the responsibility of my safety on the shoulder of a person driving an automobile. It is no different when I drive my 56 VW Beetle and I understand that I am vulnerable to a truck.
With that being said, I do not condone reckless or drunk driving and believe that under those circumstances the activity should be criminal.
I do however, realize that accidents happen. We have all been in the situation where we did not see something because of the sun, or have swerved momentarily and that is not criminal--- it is an accident. If I swerve at 25 miles per hour and a strike another car there is minimal damage. I believe that if I choose to bike on public roads I accept responsibility that I have put myself in a vulnerable position and would NOT expect a driver who I had an accident with should be charged criminally.
owlwisdom Dec 21, 2011 9:40 AM
That being said . . . Motorcyclist complain that they aren't seen on the road. Bicyclist have NO requirements for visibility on the roads short of a flashlight at night. The DOT need to set visibility requirements for bikes to match that of other motorized two wheeled vehicles.
Until that happens . . . Bicyclist have to assume some of the responsibility for being vulnerable.
Chucksa Dec 21, 2011 9:42 AM
MKEJake Dec 21, 2011 9:45 AM