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Citations in death of Oak Creek bicyclist add to push for vulnerable user law

Posted by Tom Held on Dec. 21, 2011

cyclists, fatalities

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.