Cyclist’s Death has Bike Activists Pushing for Higher Penalties

Now some news from the left coast. Last Thursday afternoon, a bicyclist collided with garbage truck in Charlestown, Mass. driven by Ricky Prezioso, 41 who stated he did not see the bicyclist. The garbage truck driver was charged with leaving the scene of the collision that resulted in the death of a 30 year-old bicyclist from Chelsea (Read More.) We did a Google search and saw that David Slepkow handles bike wrecks, as a bicycle accident attorney, and his website provided us some good details on the scheme. He seems to agree with the bike activists on this one.

Duluth, GA, USA - August 2, 2014:  A male cyclist wearing a Go Pro helmet cam races down a Duluth street as he competes in the Georgia Cup Criterium event.
Duluth, GA, USA – August 2, 2014: A male cyclist wearing a Go Pro helmet cam races down a Duluth street as he competes in the Georgia Cup Criterium event.

Bicycle activists ramped up their calls for a harsher punishment for drivers involved in fatal bicycle crashes. This crash was similar to two other fatal collisions within the past three years. Friday in court, defense attorney William Cintolo said the garbage truck did not hit the bicyclist, the bike hit the truck. Activists calling for stricter punishments for drivers say it may result in drivers being more watchful for bicyclists and pedestrians.

Critics have said that making laws harsher for drivers would result in bicyclists being free from being responsible riders or following the rules of the road. Most of us riders think that is an absurd proposition. In California, for example, riders and drivers have the same rights, duties and obligations as anyone else using the roads, according to bicycle lawyer Michael Ehline. And the Executive director of the Massachusetts Bicycle Coalition, David Watson said the driver’s duty is not to see bicyclists and pedestrians, but for actively them to look for them when driving. That sounds fair to me. Watson said that if the “I did not see them” defense was adequate, and then no driver’s would ever be convicted in this type of crash. Ehline says that not actively looking out for others, including smaller vehicles, is carelessness, or even recklessness in California.

That sounds fair to me. Watson said that if the “I did not see them” defense was adequate, and then no driver’s would ever be convicted in this type of crash. Ehline says that not actively looking out for others, including smaller vehicles, is carelessness, or even recklessness in California.

According to the police report in the Charlestown accident, authorities seem to believe that it was a right hand turn type of collision. One where the bicyclist is traveling straight, riding along the right side of the vehicle and in this case a truck, which turns into the bicyclists path. So the trucker here, could clearly argue that it was impossible to see the rider, even if he was on the lookout. In California, a pure comparative negligence state, the trucker would still be responsible, assuming it had been possible to see the rider. There could also be liability with the city or whomever else owned or operated the truck, assuming there were “prior similar incidents” said Ehline.

“This is because it could indicate a duty for the operator to install cameras or additional mirrors to break up the blind spot and cover the invisible area. Also, the vehicle manufacturer could also be under a duty to make visible a blind spot, assuming it knows it is manufacturing a vehicle that makes frequent stops in neighborhoods” said attorney Ehline.

Two other crashes of this nature occurred, with one in December 2011 killing Phyo N. Kyaw, 23 at an intersection in Cambridge. The second deadly crash occurred in Allston in December 2012 killing University of Boston student 23 year-old Christopher Weigl. Suffolk District Attorney Daniel F. Conley’s spokesman Jake Wark stated the investigation is still open in the Weigl collision, but is approaching completion. He said the Weigl family has filed a lawsuit against the truck driver and trucking company involved in the fatal crash. I hope the attorney hits a home run for the family. Accidents like this typically do not occur unless someone was neglectful.

Attorney Valerie A. Yarashus representing the Weigl family said the family was distraught to hear another crash of this nature occurred like the one that involved their son. Yarashus said that these are preventable accidents. Under the state law it states that no person it details that “no person operating a vehicle overtaking and passing a cyclist traveling in the same direction shall not make a right turn at an intersection or driveway, without the turn being made is at a safe distance from the bicyclist.” (Source.)

In this case, both a wrongful death lawsuit, and a criminal case are at play. This means issues like res judicata and collateral estoppel may come into play. Also, the master will typically cover costs of defense of personal injury lawsuits, whereas criminal defense costs are typically borne by the actual defendant. This is because liability insurance cannot normally cover crimes or intentional acts as a matter of public policy. But see also Bankers Blanket Bond, BBB Crime Insurance Commercial Crime Insurance, which does provide coverage for corporations accused of certain crimes. (View Source.)

In the latest incident Perzioso a resident of Swampscott was charged with a felony of causing a death and charged with leaving the scene. He was released on $5,000 bail and prosecutors requested Judge Lawrence McCormick suspend Perzioso’s driver’s license, which he declined to do, in spite of prosecutors objections. If convicted of the charges the truck driver could face up to ten years in prison for the fatal collision. For now he can drive, even though he fled the scene. More than likely the trucker will argue he did not knowingly leave the scene, so it is not like he is capable of fleeing justice.

As Boston Police continue their investigation Wark said that Perzioso could be facing more charges, but he could not say what charges. According to police the collision occurred at approximately 1:00 p.m. as the rear loading dump truck was turning right from Cambridge Street onto Spice Street. Police said the area the incident occurred. Witnesses that were interviewed by police said the bicyclist crashed into the truck on the right passenger side at the time the truck was making a right turn onto Spice Street.

Cambridge Street reportedly has a bicycle lane, with the paint worn off in some areas and has numerous potholes. Perzioso stated to police that he believed he hit a pothole, and did not know that he had struck the bicyclist. He said a few hundred feet from where the incident occurred he did his last garbage pickup. But that admission that he felt anything could be his “undoing”, said attorney Michael Ehline.

“The fact he felt anything at all and did not stop, could tip a jury off that he did, or know that he had just hit a rider.” said Ehline. “How is it that he could have made a correlation as to where rider was killed and the pothole, unless we had a guilty mind?” Ehline thinks that police are trained to get information like this without tipping off the accused. So depending on the context in which the confession was made, the “driver may have some explaining to do” said Ehline. Of course Ehline did say his arguments and theories are based upon California law, and he could not comment on the law of a sister state. We are waiting for David Slepkow to comment on that. He is a member of the Circle of Legal Trust, as is Ehline, so we really want to hear from him and will update this evergreen story once we get his spin.

The bicyclist was found approximately 10 feet from his bicycle that was damaged and pronounced dead at the scene. Blood stains were found by police on the truck and they collected the GPS information from the vehicle. Attorney Cintolo, representing Perzioso said that his client was not responsible for the “accident” and stated there is a blind spot on any vehicle that can prevent the driver from seeing any vehicle, bicycle or pedestrian in that spot. The lawyer went on to say there is no evidence of negligent operation by his client.

Prior Similar Incidents?

Under California law, prior similar incidents can be used in civil cases to show a pattern, practice or history of engaging in the same conduct at issue, as well as to show feasibility of repair and notice. According to reports from the Registry of Motor Vehicles, Perzioso was ticketed in 2009 for speeding in Chelsea and he was involved in an accident in 2013 in Malden. So speeding is probably not a PSI, under CA law according Ehline. But if the trash truck company had been on notice, and there were prior hit and runs, etc, this certainly would have put the company on notice that the defendant driver was a potential threat to citizens on the roads.

Watson who is calling for more stringent punishment for drivers involved in fatal bicycle or pedestrians and vehicle collision. He believes this would make driver’s be more cautious and watch for bikers and walkers. The Massachusetts Bicycle Coalition and WalkBoston is advocating for legislation referred to as the Act To Protect Vulnerable Road Users.

Proposed Legislation

This Act if passed will give judges the ability to rule that drivers involved in these types of fatal crashes to pay double fines over the current fine structure, perform 100 hours of community service and attend traffic safety classes. Currently there are approximately eight other states that have passed laws that are similar to this legislation. Along with the legislation advocates are arguing for a law that would require trucks to have protective side guards, which would prevent bicycles from sliding underneath the truck, if there is a collision. Ehline says that laws like this are not proactive and are simply designed to appeal to “low information” voters so a politician can he or she “did something.” “We already have negligence laws and criminal laws in place. We need to focus on making vehicles with blind spots safer, and education of drivers and cyclists.”

The legislation in Massachusetts has sat on Beacon Hill since 2011, Watson said. He said he is optimistic the legislation will grow supporters and that Thursday some bicycle and pedestrian activists met with a number of legislators at the State House. Watson said this was a previous scheduled meeting and he heard about the bicycle crash minutes before a meeting with House Speaker Robert A. DeLeo. What does David Slepkow say?

Watson seems to at least partly agree with Ehline, and he said the legislation is not a way to absolve bicyclists or pedestrians from acting responsible for safety. It said it is due to the fact that vehicles are larger and have more weight, which makes them a danger to these citizens and the driver should have a greater responsibility for safety. But Ehline said this also misses the point. If there is a blind spot, we “have the technology” to rid ourselves of it with “video cameras and sensors.”

The bill was sponsored by Democratic Senator William N. Brownsberger from Belmont, according to the Joint Transportation Committee. Senator Brownsberger said that bicycle safety is something that is an issue, but there is no immediate answer and that passing the bill that increases the penalties will not change anything now. He said while it is a step in the right direction, it is not everything that can be done. Ehline says that is like taking away guns from law abiding citizens to reduce crime. It is a great “emotion based response but does not solve anything”.

Republican Representative Steven Howitt said he believes there is a need for better protection for bicyclists and pedestrians, but does not feel that a law of this nature would be fair to motorists. Howitt said that he has seen bicyclists run stop signs and pedestrians jaywalking and he stated how would this hold them responsible for violating traffic laws. Ehline says that while both parties need to act reasonably, more laws are never the answer.

We “already have laws on the books” in most states, and increasing fines and penalties only help the “political elite and prison industrial complex raise more revenues”. In this article, we have tried to present both sides of the story. If you have anything to add, or wish to contribute, e-mail us and we may add your opinions to this story with legs.

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