BMW Liable in 2018 Fatal Rollaway Incident

A state court jury has awarded $9.7 million in damages to the family of Jose Chicas, a New Mexico man who died under the wheels of a rollaway 2015 BMW X5 nearly five years ago. The December 14 verdict came after an 11-day trial, in which the jury recognized that BMW was aware of the rollaway hazard and had designed a countermeasure in the X5 to prevent a driver from inadvertently putting the transmission into neutral, available just two model years earlier, but discarded it by the 2014 model year. Jeffrey Embry, of the Dallas firm Hossley & Embry, represented the Chicas family.

Rollaways – defined as unintended vehicle movement with no vehicle operator present – kill approximately 140 individuals each year and injure about 2,000 more annually. The causes range from mechanical or electronic malfunctions to simple human error. Increasingly, automakers are addressing the problem by automatically applying the Electric Parking Brake (EPB) or automatically shifting to Park on vehicles with electronic shift selectors or a combination of both in the event the driver exits and the gear selector is not Park. As vehicle systems increasingly move from discrete mechanical designs to integrated mechatronics, automakers have the systems in place that allow for feasible rollaway prevention features that can supplant less effective strategies like audible and visual alerts.   

But the public’s understanding of the nexus between product safety design and human factors is often lacking and mired in assigning the blame for product injuries and deaths solely to consumers who make mistakes – even though all humans make them. So, the jury’s decision is a significant advancement toward a general acknowledgement that automakers understand and expect drivers to make errors sometimes, that some errors can produce catastrophic outcomes, and that thoughtful design can prevent them.

The 2015 X5 is equipped with a monostable electronic gear selector, which BMW introduced in 2007. This type of shifter does not physically remain in the gear position selected, but rather returns to the center after the driver selection is made. In addition, the monostable gear selector doesn’t include Park in the shift selection sequence, instead Park is achieved via a button on the top of the gear selector lever. Pushing the gear selector lever forward with the service brake depressed places the transmission in Neutral, followed by Reverse.

2015 BMW X5: Monostable Gear Selector

BMW engineers anticipated that drivers, accustomed to traditional PRNDL gear selector arrangements, would occasionally exit the vehicle with the gear selector not in Park, so BMW implemented an automatic-park feature that would move the transmission into Park if the driver exited the vehicle without doing so. But if the driver wanted to intentionally leave the vehicle with the transmission in Neutral – to run the vehicle through a car wash, for example – the system also required that the key fob be inserted into a slot right next to the Start/Stop ignition button. This would disable the auto-park function, and affirm that the driver intended that gear position.

In the 2014 model year, BMW changed the design of its “car wash” mode. The slot was eliminated, and now, the automatic park function only engaged if the driver left the transmission in Drive or Reverse. The driver could exit with the vehicle in Neutral and the vehicle response would be a message on the dash and an interior audible alert. There was no exterior alarm, such as a horn honk.

On February 7, 2018, Jose Chicas, an employee at Ivy Paint & Body in Albuquerque, was securing vehicles into a fenced parking lot for the evening. Chicas had handled nearly 30 cars that day – including an X5 of the previous generation, with the monostable gear selector and an ignition slot design. As captured by security cameras, after moving the 2015 X5, Chicas appears to have attempted to put it into Park by pushing its Monostable gear selector forward, turned off the engine, exited the vehicle, with the fob in his pocket. As captured by security cameras, the vehicle began to roll rearward towards Chicas, who initially had his back to the vehicle as he was walking toward another vehicle, is seen turning around with his hands outstretched in an attempt to stop it but was knocked down and dragged under its wheels.

The Chicas case demonstrates how the combination of insufficient vehicle cues and human error — whether due to distraction, inattention, unfamiliar controls, or other factors — can lead to a rollaway that causes deaths and injuries.  Automakers know that most drivers don’t deliberately get out of an unsecured vehicle or attempt to exit a moving vehicle. Automakers also know that a vehicle not in Park may remain stationary for a period of time, due to topography, or engine status, for example.

Most importantly, automakers know that an unsecured vehicle is a safety hazard, which is why they program in visual and audible alerts if the driver attempts to exit with the transmission not in Park. These alerts are triggered by software taking information from the sensors that determine the vehicle status: vehicle speed the position of the gear selector, whether the engine is running, if the service and/or parking brake are applied, the driver’s seatbelt is buckled, , and the driver’s door is opened. In other words, vehicles are designed to know if a rollaway hazard is present, even if the driver isn’t aware of the danger. But, the industry has largely clung to the failed strategy of activating indistinguishable buzzers or chimes and visual texts that are not in the driver’s view as they exit, even after years of cumulative rollaway incidents that resulted in death and injuries. Rather than using that same hazard determination to activate the available hardware to prevent rollaway, such as an automatically applied EPB or an automatic-shift-to-Park on vehicles with E-shifters, automakers blame the driver.

Not-so-new views on human factors and causality models, such as Systems-Theoretic Accident Model and Processes /Systems-Theoretic Process Analysis (STAMP/STPA) consider the design of systems and the environment they are used in – and that operator error is a symptom, not the cause of an incident. For more than a decade automakers have begun to explore ways to incorporate STAMP/STPA into their design processes. As the number non-broken part rollaway incidents grow, they demonstrate the slowness of the industry to use these type of analyses to guide the implementation of better mitigation and preventive features.

“We tried this case as: BMW had the safety system in the prior generation X5 and they deleted it beginning with the 2014 X5 without any evidence that they did any engineering to justify deleting the safety measure,” Embry says. “In automotive engineering, you have to show your work and we talked about how they do that regularly and about Failure Mode and Effects Analyses, and that the jury will not see, because it doesn’t exist, any evidence that BMW properly engineered this vehicle before they decided to delete this important safety feature..”

Going into the trial, Embry was less than optimistic – Chicas bore some responsibility for the rollaway by failing to place the transmission in Park, and BMW had produced only limited documents in discovery. There were no settlement discussions; BMW’s counsel told Embry that his client wasn’t interested in settling for any amount of money.  

But, two weeks prior to the trial before First Judicial District Court Judge Matthew J. Wilson, Embry decided to simplify things for the jury by focusing on the removal of the safety feature in the X5’s original car wash mode. Embry emphasized that vehicles, like every other consumer product, are designed to address foreseeable human error.

“Human beings make errors, and we had in deposition testimony that BMW knew that people on occasion would mis-shift the shifter and the reason they had auto-park from Drive or Reverse was because they recognized that people could forget to press Park,” Embry said. “So why is it any different in Neutral?”

Embry also made the case that the 2015 X5’s visual alert and interior chime that activated when the vehicle was left in Neutral upon driver exit were insufficient, and did not even meet industry-set guidelines. In 2011, SAE issued voluntary design recommendation J-2948 Keyless Ignition Control Design, which calls for an exterior audible or visual alert if the driver exits with the fob while the vehicle is in accessory mode. That’s because drivers exiting a vehicle will not hear or see warnings that are only occurring inside the vehicle. (Chicas exited the X5 with the fob in his pocket, and since the transmission was in Neutral, the vehicle’s electrical system remained enabled, typically called Accessory. BMW calls it the “radio ready” state.)

“We argued that relying on a warning was not sufficient, and that BMW knew that warnings didn’t work. Human errors will only occur once in a while, but that’s exactly how human error is. This is a safety system you want to have in your car, because some day when you are distracted and your mind is not focused, whether you are the owner or if, like Mr. Chicas, you’ve never even driven one of these cars, you want to have that safety system,” Embry says.

The Santa Fe jury, an eclectic mix of individuals that included a stockbroker and a retired accident investigator for United Airlines, appeared to understand these arguments, he said. New Mexico rules allow the jury to ask questions.

“During some of the testimony, they were asking if there was an engineering document. Another question was: Did BMW conduct an FMEA before they deleted the safety feature?” Embry recalled.

Each day of the trial, BMW’s legal team, led by Bowman & Brooke’s Executive Managing Partner Thomas P. Branigan, as well as counsel from Germany, made a grand entrance, sweeping into three reserved parking spaces in front of the courthouse in black X5 vehicles with tinted windows. They brought in a fancy exemplar of the shifter and entire center console surrounding it, which could be rotated to face the jury. And yet, they seemed to be caught off-guard by the simplicity of the Plaintiffs’ argument, having prepared to defend the vehicle against a more sweeping attack on shift-by-wire systems, keyless ignition systems, NHTSA’s failure since 2011 to complete an amendment to FMVSS 114 Theft Prevention and Rollaway Protection, and the nuances of warning systems. BMW’s experts never even addressed X5’s earlier, safer, car wash mode design, Embry said.

BMW’s exemplar was impressive, compared to the component shifter Embry used at trial, but it ended up helping the Plaintiffs.

“Surrounding the shifter were 19 separate buttons. When I had an opportunity to cross-examine their expert, we counted up the buttons, and there were a couple that he didn’t know what they did,” Embry said.

The jury found that BMW was negligent and that the 2015 X5 presented an unreasonable risk of injury, which was the cause of Mr. Chicas’ death. It did not award punitive damages, and it split the fault, assigning 57.7 percent to the Plaintiff and 42.5 percent to BMW. This reduced the jury award to $4.2 million, but 10 percent pre-judgement interest added $1.5 million to the total. New Mexico also assesses 15 percent post-judgement interest, which amounts to $1,900 a day.

As soon as the jury was excused, BMW’s legal team abruptly left the courtroom.

“Normally, win lose or draw, lawyers shake hands and tell each other, you did a good job for your client,” Embry says. “There was none of that here.  I’ve never seen people bolt from a courthouse quicker.”

A month later, however, BMW was back – at least digitally — to file motions for a new trial and to set aside the individual awards for Jose Chicas’ sons, who were young adults and lived with their father at the time of the incident. BMW argued that the awards were excessive and improper because they did not meet the legal threshold for loss of consortium.

Will this verdict reverberate in the chambers of industry general counsels? The verdict, and the arguments that led to it, shows that absent broken parts, juries can understand that companies have a responsibility to protect drivers who make split second decisions operating complex systems that their engineers have spent years developing. Blaming the driver for a foreseeable error doesn’t wash in court, just like it doesn’t wash when good systems design processes are followed.