Why Wisconsin Needs A Vulnerable User Law

These are the facts: On July 17th, an 18-year-old man lost control of his car while driving on Nicholson Road in Oak Creek, crossed the centerline and killed 56-year-old Sam Ferrito while he was riding his bicycle. The consequences for killing this innocent man are tickets for two moving violations: reckless driving and crossing the centerline.

While nothing can bring back Sam Feritto and no punishment will fairly compensate Mr. Feritto’s family for their loss, the scales of justice seem woefully out of balance in this case.  Current laws just don’t seem to protect vulnerable road users.  Careless drivers who kill innocent people can get off with little more than a fine simply by saying it was an accident.

Reacting to the lack of criminal charges, Marcia Ferrito, Sam’s wife, told Tom Held of JSOnline’s Off the Couch, “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.”

I spoke with Milwaukee Assistant District Attorney Greg Huebner to try to get a better understanding of the reasoning behind his decision not to prosecute the driver in the Oak Creek case for a more serious crime such as homicide by negligent operation of a motor.

“It is a terrible tragedy, and that was my first inclination,” Huebner began, “but I just did not believe I had the evidence to prove the case beyond a reasonable doubt.  And I spent a lot of time with this case. I even ran it past a number of other attorneys and they all agreed with my decision. If he had been going 20 over or something, it would have been a whole different ball game.”

Vehicular Homicide, or more properly homicide by negligent operation of a motor vehicle as defined by Wisconsin state statute, is a felony, and is predicated on proving the driver was “criminally negligent.”  Criminal negligence is a much higher standard and very difficult to prove. Sadly, the most common example of simple negligence I could find was “ordinary negligence occurs when a person fails to exercise ordinary care, such as if a person is driving a car and changing the radio station at the same time.” Criminal negligence means reasonable people would believe that a the actions that caused the crime create a substantial and unreasonable risk of death or great bodily harm to another.

I asked Huebner if his decision was because he thought juries have a bias toward drivers and are predisposed to view cases like this as terrible “accidents” that couldn’t be avoided. He was quick to say that had nothing to do with his decision.

“I don’t take a jury’s predisposition or bias into account when I consider a case.  I take a complete look at all the evidence to see if I think I can prove to myself that a person is guilty.  In this case I would have had to prove that the driver exhibited conduct that is likely to cause death.”

In the death of Sam Ferrito, the driver was not found to have been under the influence of alcohol or any illegal substance and his cell phone records did not show he was using his phone.  ADA Huebner told me the driver claims to have “blacked out” for unknown reasons and to have no recollection of the crash. Like it or not, even if the driver who killed Mr. Feritto did “black out” or fall asleep, it would be very difficult to prove beyond any doubt that a person who gets behind the wheel of a car when he or she is tired does so with the understanding that driving while sleepy is likely to result in someone’s death.

If a prosecutor can’t prove criminal negligence, existing statutory law has does not offer any alternatively serious charges any stronger than moving violations.  It is the Bike Fed’s view that existing law is far too lenient on careless drivers who through their own negligence cause the death of someone not encased in a steel cage.  It is the view of the Bike Fed that when you drive a motor vehicle around people walking and riding bicycles, you should exercise a higher degree of caution because failure to do so can result in great bodily harm to an innocent person.

We can do more to keep little guys like this safe.

We at the Bike Fed believe that in certain instances, a driver of a motor vehicle who causes the death of a person on a bicycle or on foot through an act of simple negligence should be charged with a felony.  Driving down a street next to a school?  Slow down, keep both hands on the steering wheel and wait to roll up the window or take a bite of your burger until you are out of the school zone.  Driving down a street that connects to a bike path?  Slow down, keep both hands on the wheel and wait until you can safely pass the bicycles with three feet to spare.  If you kill someone because you failed to take due care, you should go to jail, not just get a ticket.

The Bike Fed is currently working with members of the Wisconsin Legislature to draft a Vulnerable User law that provides a level of punishment that better fits the crime than a fine and a traffic ticket.  We believe that we need a law that better protects the vulnerable users of the road and puts the scales of justice a bit more in balance.  Driving offers great freedom, but should come with equal levels of responsibility.  In our busy drive-thru culture, piloting a motor vehicle has become something people do almost without thinking. That needs to change.

Stay tuned here for more details as we draft the language of the legislation.  The vulnerable user law will be our legislative push at the 2012 Wisconsin Bike Summit, Feb. 21 in Madison.  Please plan on attending and help us with this important issue.

About Dave Schlabowske, Deputy Director

Dave was the first full-time staff member hired to open the Bike Fed's Milwaukee office 15 years ago. A former professional photographer and life-long Milwaukee resident, Dave likes wool, long rides, sour beer, and a good polar vortex once in a while.

12 thoughts on “Why Wisconsin Needs A Vulnerable User Law

  1. I am saddened for the friends and family of Sam Ferrito and scared for the cyclists, pedestrians and other motorists that share the road with inattentive drivers. It has awaken my awareness of the responsibility I take when getting behind the wheel and the risk I take when out biking on the road.

  2. I really don’t see how criminalizing simple negligence achieves anything. This law you are proposing doesn’t protect anyone. It punishes.

    There are civil remedies available to the family of the biker. They are no solace to a grieving family but, it’s something. This kid didn’t “get off”. He is going to live with this accident for the rest of his life. And it most certainly was an accident from the facts presented. You propose putting him in prison too?

    Bikers put themselves in harms way every time they go on the road. That is a risk. A risk I also take. We count on drivers exercising reasonable care. Heck, drivers count on other drivers exercising reasonable care.

    The consequences of not exercising reasonable care are not always the same of course, as this article illustrates. But do we really expect this law to change momentarily careless drivers behavior? Generally people do exercise reasonable care while driving. We all fail in that regard time and again, but should that failure be criminal?

    Sending people to jail for simple negligence is grossly excessive. What better way to illustrate it than your example of simple negligence. Your proposed law makes criminals out of people “changing the radio station”. How often do you change the radio station in your car?

    Nice photo.

    • I believe that if you get into your car so tired that you fall asleep while driving, that should rise to the level of criminal negligence. We need to change the “mens rea” when people get behind the wheel so they better appreciate the danger they pose when driving and the inherent responsibility that comes with driving. Further, our statutory laws are a reflection of our social values. If we have a law that makes it illegal to kill someone in certain situations through simple negligence, that law serves to remind our citizens that they need to be careful when driving and especially carefull around people walking, biking, police officers stopped on call, etc. If I decide to change the radio station on a neighborhood street with kids playing outside and I kill a kid in a crosswalk, then yes, I believe I should go to jail for simple negligence.

  3. This type of law is not merely punishment for the negligent driver who kills an innocent cyclist. It also would serve as a deterrent to other drivers.

    If it causes even one driver to be more careful, it would save lives. That would make it a priceless tool for the protection of innocent lives, and prevent needless grief to many families.

    My condolences to Mr Ferrito’s family & friends.

  4. Cases like this highlight how difficult it can be to find an appropriate punishment for a crime. Would it be reasonable to send this person to prison for what he did? I think not.

    So what do we do? Unfortunately, I think that the response here does reveal society’s pro-automobile bias. It shows that we view vehicular deaths as inevitable.

    What we should do is treat automobiles as exactly what they are: heavy, dangerous machines whose use is a privilege and not a right. The driver here should lose his license — forever. Society arguably has a strong incentive to prevent the deaths of innocent people, while it has no real need to keep this man behind the wheel of a car.

    Who cares whether it was “simple” negligence or “criminal” negligence? He killed somebody with a car. He shouldn’t get to drive ever again.

    In the long run this punishment would also have the added benefit of slowly increasing the demand for alternative modes of transportation (including cycling) while making roads safer for everyone.

  5. To Brent, your response illustrates the overwhelmingly punitive aspect of the proposed law, “If it causes even one driver to be more careful, it would save lives.” From a stat I pulled from the Journal-Sentinel on August 8th, 11 cyclists on average die each year in Wisconsin, more presumably are injured. These numbers are low, but may rise as more people ride bikes on the roads. The stats suggest it is still a safe alternative to driving though there are risks. The stats also suggest that an overwhelming majority of drivers are safe around bike riders. I doubt any of them practice perfect driving habits all of the time. To err is human. As I asked before, should we send people to jail who have a moment of error or should we keep that punishment reserved for those who act truly unreasonably?

    To Kyle, unfortunately, there is a reason we have different forms of negligence with different standards of proof and punishment. I care as does the entire judicial system. As to the idea that vehicular deaths are inevitable, they are. I don’t think it is a pro-automobile bias that makes me believe that. We cannot eliminate accidental deaths by statute. Your idea of an alternative punishment being a permanent revocation of his license is novel and I agree with a punishment that doesn’t include jail time but is stronger than current law.

    • Sam, We will share the specific language of the legislation with everyone here when we finish drafting it, but it is not done yet. Until then, I would ask that people limit their comments to a discussion of the ideas proposed, not the actual law, since there isn’t one. I think the distinction is an important one. We are drafting this legislation very thoughtfully with a full understanding of our overcrowded jails.

      As for stats, countries with stronger laws regarding the responsibilities associated with driving around vulnerable users of the road, have better safety records and higher numbers of people who bike and walk. While other factors influence those stats, the Bike Fed is trying to put all the same pieces together here so we can enjoy the same levels of safety and comfort on the road when we ride a bike. We believe this law is one of those pieces in a bicycle friendly society.

      I am interested in why you don’t feel jail time, our standard punishment for all serious transgressions of socially accepted behavior, is appropriate for killing someone with a motor vehicle. If we agree that it is possible to kill someone with a car through negligence, then we should emphasize the responsibility of driving with a law and appropriate punishment.

      FYI, this discussion has prompted the idea of a future post to further explain the Bike Fed’s reasoning behind promoting this law. Perhaps we will be far enough along with the legislation to share more details, which would make this discussion and comment more valuable.

      • I don’t think an accident is a “serious transgression of socially acceptable behavior” where there is no: reckless driving, criminal negligence or minor traffic violation. That last bit should close some of the most troubling instances of vehicular deaths (as well as your emotionally manipulative example involving kids in crosswalks) that result in no more than minor traffic tickets. These are instances of careless driving that should be more severely punished considering the vulnerable nature of cyclists, pedestrians and anyone not driving a car. This seems to me to be the crux of the issue.

        Punishment for standard driving behavior that don’t amount to these things that result in a death of a pedestrian or cyclist is excessive. My reasons for this stance should be readily apparent from any number of scenarios where a reasonable driver, who isn’t violating a traffic law, may accidentally hit a cyclist and take their life. These are unavoidable accidents.

        Back to the crux of the issue, jail time for minor traffic violations or careless driving is excessive. I don’t believe I am alone in thinking so. In fact, most states that have enacted vulnerable user laws don’t include jail time as a punishment. You are advocating the extreme position. You’re right that our laws should reflect our social values, extremism shouldn’t be one of them.

        I look forward to this playing out, I hope you don’t take my concerns as anything but a measured support for your proposal.

  6. I question the ADA’s decision (that he claims was influenced by other attorneys) not to even commence criminal proceedings. Did the ADA make a decision based on reasons other than not enough “evidence to prove the case beyond a reasonable doubt”? There are times decisions should be made by juries rather than ADA’s. I do not object to Bike Fed’s vulnerable user law attempt, but we also already have laws that court proceedings can make decisions on. Not only ADA’s.

  7. You want harsher penalties for motor vehicles causing bicycle death and injury. Fine. But do motorists then get a pass when the bike they hit is some arrogant spandexed clipped-in a**hole who cannot or rather will not to obey rules of the road? Blowing through stop signs and lights like the jerk on the double high custom frame on the east side of Milwaukee because he is seated 5 feet off the ground? The ones who race down sidewalks slaloming through pedestrians then dart into the street via the crosswalks to circumvent traffic rules? The one who ride in packs obstructing motor traffic?

    In a world of incivility, bicyclists are some of the most self centered, inconsiderate, reckelss people on the roads, on a par with cell phone users.

    Clean up your own house first.

    • Kevin,

      Yes, people driving motor vehicles do get a pass when they hit some arrogant spandexed clipped-in a**hole, a jerk on a tall bike and even jaywalkers if that person is violating the laws, even if they kill that person, even after the VU law passes. Our proposed legislation will not change that. The problem this legislation is trying to address is that people driving motor vehicles currently get a pass if they kill a perfectly innocent someone on a bike or walking who is obeying the laws. Kill kid in a crosswalk, get a ticket for failure to yield to a pedestrian. Kill a bicyclists legally going through an intersection, get a ticket for failure to yield under current laws. Our legislation also increases penalties for a person riding a bicycle who might kill a person another bicyclist or a pedestrian. That has never happened in our state to my knowledge, but it is part of the proposed law.

      Are some people who ride bicycles inconsiderate? Absolutely, but the facts (not anecdotal observations) show that people on bicycles do not break laws any more frequently than people in motor vehicles. They just break different laws. In fact, WisDOT studies and City of Milwaukee studies show that the majority of crashes between motor vehicles and adults on bicycles are the fault of the motorist violating the law by a small margin. City of Milwaukee bicycle counts at mid block locations show the vast majority of people on bikes riding legally in the street. People who ride on the sidewalk or against the flow of traffic do so because they are afraid of riding in the street. Fewer people ride on the sidewalk or the wrong way when you give them convenient safe places to ride (trails and bike lanes). The City bike counts a tsignalized intersections showed a significant percentage, but still a minority, of people on bicycles ran red lights. So the fact is that the majority of people on bicycles are generally law abiding.

      Further, as the person who used to manage the neighborhood traffic safety program for the City of Milwaukee, I had hundreds of meetings with people because they had complaints about motor vehicles speeding, failing to stop for stop signs, and failing to yield to pedestrians. For those complaints, the city traffic engineer assigned engineering interns to do speed studies and crosswalk studies in every neighborhood across Milwaukee. The City also used unobtrusive radar units (not speed boards) that count every vehicle and measure the speed of every vehicle. In the vast majority (but not all) of those studies, on average, 65% of motor vehicles drove above the speed limit in a bell curve with most driving 5 or so mph above, but some driving as much as 25mph above the posted limit and between 77% and 100% of motor vehicles failed to yield to pedestrians in a crosswalk, even when a police officer was present. So the fact is that the majority of people driving motor vehicles are not law abiding.

      Finally, it is no more illegal for people on bicycles to ride in groups than it is for people in cars to ride in groups. SUVs and trucks obscure the vision of someone in a smaller vehicle, but it is not illegal. People on bicycles are required to ride no more than two abreast unless they are passing a slower moving group. As long as they are obeying that law, they are not obstructing traffic, they are traffic. Many group rides certainly violate the laws and the Bike Fed is opposed to that, but try to drive the speed limit in the left lane on I94 between Milwaukee and Madison (that is the law after all) and let me know how much civility you see in the other drivers and how many thumbs up you get for obeying the law.

      For that matter, try to drive the speed limit in the right lane and count how many cars you pass vs. how many cars pass you. I have done that and typically stop counting when I get to 250 cars near Johnson Creek. Is everyone who passes me an arrogant steel-clad a**hole who will not obey the rules of the road? No, they are just following our societies current driving norms in which it is expected that motorists will break the law to get where they want to go faster if they can get away with it. Most people driving motor vehicles know they can drive 7mph above the speed limit and ignore pedestrians trying to cross the street rather than stop so they break those laws to get where they are going faster. Current culture for people who ride bicycles is similar. Many people who ride bikes, but studies show not the majority as it is with cars, run red lights because they know they can get away with it and it gets them where they are going faster.

      Those are the facts from traffic studies and crash studies done by unbiased traffic engineers, not anecdotal observations.

      As to cleaning up our own house, if you look at our programs, the Bike Fed teaches tens of thousands of children and adults how to ride legally and safely every year. The Bike Fed’s Share and Be Aware encouragement campaign works to get all road users to obey all laws and our messages reach millions. Those messages include getting pedestrians to wait for walk signals and bicyclists to stop for red lights and stop signs.

      Perhaps you yourself ride a bicycle, the majority of people in Wisconsin do. When you are on your bike, do you feel like you get respect from people in motor vehicles, even though you obey the laws and are civil to other road users? Do you always feel safe and comfortable on the road? I would bet the answers are no to both questions. If you don’t ride a bicycle, perhaps your children or nieces or nephews do. Would you advise those kids that they are safe to ride their bicycles on any street in Milwaukee as long as they obey the laws? I would guess you would not give that advice.

      The Bicycle Federation is working to make it safe, convenient and pleasant for anyone, from 8 to 80 to get on a bike and ride if they want to. We are working to get more bicyclists to ride, to understand and obey the law, to increase safety, to improve health, to save people some money, and to help salvage what is left of our environment. We believe that by putting more butts on bikes we can put smiles on more faces, even yours.

  8. Well said Dave, the only thing missing is the dropping of the mic as you turn to leave the room. Seriously though, I really appreciate your reply to Kevin’s comments by encouraging a civil discussion based on facts rather than anecdotal observations. I would add, and I have observed, motorists that park downtown frequently leave their vehicles and proceed to walk against signals and cross in the middle of the intersection so that they can get to their office quickly.

    More definitely needs to be done to protect vulnerable users of the road and the continued expansion of the cycling infrastructure.

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