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"
2. Licensing in our society is provided for activities which carry a high risk of injury to *other* people, which is why we also do not require licenses for walking in this country. Sadly, many of the same excuses for poor driving (sunlight in my eyes, swerve across the middle) would have killed a pedestrian on the side of the road just as much as a cyclist.
3. I agree with you (and most regular cyclists) do not hold up a "long line of cars" regularly, but I will suggest to you that this "problem" is overblown only in the fact that people are more likely to remember these very occasional instances more than they remember the much more common scenario of being held up by slower cars or tailgated by faster ones.
Not seeing something in the sun is fine when you're driving slow enough so as not to out-drive what you can see. Swerving is appropriate when a deer literally runs right in front of your car. Neither would be prosecuted. But blindly driving right at (or above) the speed limit when cresting a hill or blind corner is the type of inept driving that we tolerate way too much in this society (driver's license notwithstanding).
When I do anything in public, I still have this old-fashioned belief in competence and respect from the others around me, and sufficient legal system to promote this as necessary.
madcoca Dec 21, 2011 10:06 AM
2 of the examples above are minimal fines, with a preponderance of evidence of a slap on the wrist of "inattentive driving", yet the drivers are pleading not guilty. In at least Gustman's case, it was a flat country road with clear line of sight, but he's pleading not guilty to a $187 fine. I can begin to understand a driving mistake, as I have made them myself, but essentially to show no remorse or responsibility shows how far away we are from people taking driving seriously.
madcoca Dec 21, 2011 10:19 AM
whatsthatnow Dec 21, 2011 10:20 AM
whatsthatnow Dec 21, 2011 10:24 AM
2) A bicyclist can certainly cause harm to others. By practicing unsafe bike riding they can cause car accidents in which the driver, pedestrians and other cyclists are injured.
3) Unfortunately on Hwy DR bikes holding up traffic are a frequent event on weekends in the summer. It is not something that has happened rarely in our area.
owlwisdom Dec 21, 2011 10:57 AM
Southpaw7 Dec 21, 2011 11:07 AM
No traffic engineering study performed in the last 40 years has found bike trails and bike lanes to be significantly safer than proper vehicular cycling technique. In fact, a majority found that sidewalks, bike lanes, and adjacent bike paths increase the danger to cyclists, especially at intersections. Other designs endanger cyclists by guiding them through "door zones", requiring left turns from the right shoulder of the road, or encouraging motorists to overtake at unsafe distances.
If you see a cyclist in the middle of a traffic lane, the cyclist is telling you the lane is too narrow to share safely. Overtaking in a too-narrow lane is dangerous and illegal, even if the cyclist appears to be encouraging this by hugging the curb, rather than preventing it by riding down the center of the lane. Taking the lane is a vehicular cycling technique which is taught by every reputable cyclist certification program in the United States, including the League of American Bicyclists, Street Smarts, Cyclecraft, and Street Savvy. It's not only legal, it's also the safest way to ride a bicycle that is currently known.
The courts have long-since established through repeated rulings that roadway users are not responsible for the negligence of others. That essentially means motorists, cyclists, and pedestrians cannot be blamed for their own deaths (as you are suggesting) simply because they were present in the roadway when a negligent motorist killed them.
The usual result of proper vehicular cycling technique is that a cyclist reaches his or her destination safely. The all-too-common result of putting motorist convenience first is that someone dies because an impatient driver wanted to reach the next red traffic light a few seconds sooner.
GallupsMirror Dec 21, 2011 11:43 AM
Motorists are responsible for danger they present to others, not the pedestrians, cyclists, and other motorists they endanger. See my response to owlwisdom for more details.
Sources:
http://www.dot.wisconsin.gov/safety/vehicle/bicycle/rules.htm
347.489 Lamps and other equipment on bicycles, motor bicycles, and electric personal assistive mobility devices.
GallupsMirror Dec 21, 2011 12:10 PM
And cyclists / pedestrians are also responsible for the safety they present to themselves and others when they don't follow the rules of the road. Bikes are considered vehicles by wi law and cyclists should act like vehicles following traffic laws and they should be treated like vehicles by motorists.
Where does this type of law stop? How about a semi tractors? So am i not a vulnerable user if a semi piles into my compact car
Southpaw7 Dec 21, 2011 12:38 PM
More effort should be placed in education at the drivers Ed level and enforcement when violations occur that don't result in crashes, and that means holding cyclists accountable through enforcement as well.
Southpaw7 Dec 21, 2011 12:44 PM
Drivers must provide a safety zone for stopped law enforcement, emergency and maintenance vehicles
To help safeguard law enforcement officers, emergency responders, road maintenance workers, and others who work on the side of highways, Wisconsin has a "Move Over Law."
The law requires drivers to shift lanes or slow down in order to provide a "safety zone" for a squad car, ambulance, fire truck, tow truck or highway maintenance vehicle that is stopped on the side of a road with its warning lights flashing.
Drivers have two options for creating a safety zone:
If the road has more than one directional lane, like the Interstate, and you can switch lanes safely, you must move over to vacate the lane closest to the law enforcement or other vehicle with its lights flashing.
If the road has a single directional lane or you can't safely move over, you must reduce your speed.
Failure of motorists to move over is one of the reasons that motor vehicle crashes kill more law enforcement officers on duty than any other cause.
kkromm Dec 21, 2011 12:49 PM
Drivers must provide a safety zone for stopped law enforcement, emergency and maintenance vehicles
To help safeguard law enforcement officers, emergency responders, road maintenance workers, and others who work on the side of highways, Wisconsin has a "Move Over Law."
The law requires drivers to shift lanes or slow down in order to provide a "safety zone" for a squad car, ambulance, fire truck, tow truck or highway maintenance vehicle that is stopped on the side of a road with its warning lights flashing.
Drivers have two options for creating a safety zone:
If the road has more than one directional lane, like the Interstate, and you can switch lanes safely, you must move over to vacate the lane closest to the law enforcement or other vehicle with its lights flashing.
If the road has a single directional lane or you can't safely move over, you must reduce your speed.
Failure of motorists to move over is one of the reasons that motor vehicle crashes kill more law enforcement officers on duty than any other cause.
kkromm Dec 21, 2011 12:50 PM
Rational1 Dec 21, 2011 12:50 PM
ElaineB Dec 21, 2011 1:04 PM