The case against a former UTA bus driver accused of running over and killing 82-year-old businessman Richard Wirick, who was known around Salt Lake City as "Mr. Downtown," will continue as planned after a judge ruled Friday the city has the right to prosecute drivers for simply not paying attention.
It was the long-awaited resolution to a question posed by Salt Lake City Justice Court Judge L.G. Cutler, who in February ruled that a jury could not convict someone of negligent operation of a motor vehicle unless criminal negligence was proven — which is contrary to how the city ordinance is written.
Criminal negligence means the defendant would have had to knowingly commit an act of negligence — take impairing substances before driving, seeing a person in the crosswalk but proceeding anyway, among other willfully reckless acts, according to state law.
But the city's ordinance, which Cheryl Anne Kidd was charged with violating in the case of Wirick's death about two years ago, only calls for simple negligence — looking away or not paying attention.
Third District Judge Katie Bernards-Goodman ruled Friday that the city was within its rights to create and enforce such a law, which Assistant City Prosecutor Scott Fisher argued "filled a gap" in the state's traffic code, which addresses acts of criminal negligence that result in a person's injury or death, but not simple negligence.
"The city intentionally chose simple negligence; if they meant criminal negligence, they would have said criminal negligence," Fisher said. "This serves a specific purpose for the city."
The case will be sent back to Salt Lake City's Justice Court, where it will likely be set for trial.
Kidd was set to appear for a jury trial in February when Cutler declared the city's case invalid.
There has never been any evidence presented in the case to indicate Kidd had been driving under the influence of drugs or alcohol. According to police, she did not see Wirick before it was too late.
"The term negligence is supposed to describe the conduct of a driver," Cutler said. "It's a strict liability — of criminal negligence, of a conscious decision — otherwise negligence has no meaning."
But Salt Lake City prosecutors insisted the city ordinance that Kidd was charged with violating does not require such a high bar of negligence.
On Friday, Judge Bernards-Goodman agreed.
"The city chose simple negligence — that's what it says," she ruled. "It is not contradictory and doesn't conflict with state law."
Kidd faces two charges: misdemeanor negligent operation of a motor vehicle causing personal injury, which carries a maximum sentence of up to six months in jail; and not yielding the right of way at a crosswalk, an infraction for which she cannot be incarcerated.
According to charging documents, Wirick was crossing 400 South at 200 East on Feb. 21, 2012, when the traffic signal changed.
A Utah Transit Authority bus, driven by Kidd, went through the intersection, hitting Wirick in the far right westbound lane of 400 South and trapping him under the bus.
Wirick died later that day.
Kidd, 50, has pleaded not guilty to all charges.
The UTA terminated Kidd on March 15, 2012.
Wirick owned the Oxford Shop shoe store, at 65 W. 100 South, for nearly six decades.
mlang@sltrib.com
Twitter: @Marissa_Jae
