February 4, 2011
Someone should have seen this one coming.
In November, a New York woman filed a lawsuit against Toyota, claiming that its keyless entry system resulted in the death of one man and her own debilitating injuries. How did it happen? Carbon monoxide poisoning from her Lexus, inadvertently left running in the garage under her home. Mary Rivera, of Queens, New York alleged that her so-called Smart Key, an electronic fob system, allowed her to exit the vehicle without it being turned off. The engine was so quiet Rivera didn’t notice that the motor was still running.
Just another one of those crazy lawsuits where some consumer does something really dumb and tries to blame the hapless manufacturer, right? More fodder for all those conservative blatherskites who love to dump on trial lawyers, right?
Actually, no. This preventable tragedy is the inevitable consequence of bad design and a NHTSA’s interpretation of the rules.
Rules, Rules, Rules
The original 1970 regulation was established to prevent thieves from making off with cars and creating carnage on the public roads as they sped away. In 1988, the agency proposed amending the rule to address the problem of rollaway vehicles, noting that it had received complaints of accidents and injuries associated with steering wheel lock-up when a key is inadvertently removed, and in instances of inadvertent gear shifting (usually by children) in automatic transmission vehicles. The 1990 Final Rule required vehicles with automatic transmissions that have a Park position to have a key-locking system that prevented removal of the key unless the transmission is locked in Park.
In the early 1990s, however, the agency began to field inquiries from manufacturers asking how Federal Motor Vehicle Safety Standard 114 would affect the development of keyless/electronic ignition systems. In letter after letter, the agency signed off on various vehicles’ compliance based on theory that the “key” in these systems was the electronic code.
And you know how we said someone ought to have seen the problem coming? Someone did! It was Jacqueline Glassman, former NHTSA uber-counsel. In a 2002 interpretation letter to an un-named auto manufacturer, Ms. Glassman observed:
“…if the ‘Smart Key’ device remained in the car. e.g. in the pocket of a jacket laying on the seat, a person would need only turn the ignition switch knob to start the engine. It appears to us that, with systems of this kind, there would be, in the absence of some kind of a warning, a greater likelihood of drivers inadvertently leaving a ‘Smart Key’ device in the car than with a traditional key. This is because the driver must physically touch a traditional key, unlike the “Smart Key” device, as part of turning off the engine. You and/or the vehicle manufacturer may wish to consider whether there are any practicable means of reducing the possibility of drivers inadvertently leaving their ‘Smart Key’ devices in the car.”
In August 2005, NHTSA decided to address these new systems in a rulemaking. In the proposal, NHTSA acknowledged that the regulatory language had become outdated and incompatible with electronic key locking and ignition systems. The agency proposed, in part, to simplify the regulatory language, redefine the word “key” to better reflect electronic codes and other locking devices and remove provisions that unnecessarily restricted design. In fact, in 2006, the definition of Key became very simple. The new rule states:
“Key means a physical device or an electronic code which, when inserted into the starting system (by physical or electronic means), enables the vehicle operator to activate the engine or motor.”
In other words, the key is what starts the vehicle.
Under that definition, the fob – which is the physical manifestation of electronically-based ignition/locking systems – constitutes the key, because without it, you can not start the vehicle.
The code may be the digital realization of indents on a metal key, but it is housed in that fob. And, to extend the comparison, you cannot start a vehicle with a metal key by the indents alone, you need the entire device to make the key work. The fob delivers the code that is specific to a particular vehicle. You can not use your fob to open or operate any vehicle other than your own. You can not start the vehicle by whispering the computer code into the ignition slot. You must deliver it via the fob. It is, therefore, the vehicle key.
In many real world instances, vehicles with electronically based systems have, in essence, two keys. One is the physical fob, which delivers the electronic code to the vehicle. You must use this key to start the vehicle. (And thus, by regulation, is the actual key.) Once the fob delivers the code to the vehicle, its role as the “key” ends. To “remove” the second “key” (the electronic code), you must put the vehicle in park, turn off the engine and open the driver’s door, or a similar sequence involving killing the engine and putting the vehicle in park. The fob, which must be used to start the vehicle, has no role in turning off the vehicle.
(The agency sees nothing wrong with this, and maintains that these systems are compliant. We respectfully disagree.)
Introducing Convenience and Safety Hazards
Back in 2002, after NHTSA’s Chief Counsel pointed out that keyless entry systems, as developed by several manufacturers, could lead to consumer confusion, manufacturers rushed to run a bunch of human factors studies and fix their ignition systems to avoid this problem, right?
Actually, no. Despite the significant change keyless entry systems produced in a longstanding, routine interaction between occupants and vehicles, auto makers did not address the problem. Last month, the Society of Automotive Engineers finally published a keyless ignition standard, J2948, years too late. (Its purpose, according to SAE: “helping to minimize user instigated errors.” These are actually manufacturer-instigated design errors, as well as violations of the regulation.)
Instead, manufacturers continued to come up with myriad individual keyless ignition systems. This task became disconnected from that well-established sequence of human behavior. Manufacturers offered a minimum of convenience and no small measure of safety hazard – besides carbon monoxide poisoning, keyless systems re-introduced the problem of rollaways. Under FMVSS 114, a driver cannot remove a vehicle key without the engine off and the vehicle’s automatic transmission in the Park position – or become automatically locked in the Park position. With many keyless entry systems, this protection has vanished. While some warn the drivers that the key has been removed and the transmission is not in Park, the warnings have varied effectiveness, leading to complaints to NHTSA like this one involving a 2009 Nissan Altima:
“A traffic officer and investigated an incident where a vehicle owner was run over by his vehicle. The vehicle does not have a physical key to operate the vehicle. There is an electronic \’key\’ and a push button start/shut off switch. The driver parked the vehicle in a driveway with a steep grade. The vehicle was left in \’drive\’ with the engine off. The driver exited and started to walk away from the vehicle. The vehicle started to roll backwards, down the driveway. The driver ran to the vehicle to try to stop it and was run over by the vehicle. It is possible to park the vehicle, shut the engine off and exit the vehicle with the transmission any gear selection and exit the vehicle. This is the second incident with this same model vehicle, but different years, that the engine was shut off, the transmission was left in drive and the vehicle ran over the driver. In both instances the vehicle was owned by the driver for a short time.”
Chrysler has been a notable exception. In September 2008, Chrysler recalled 6,636 MY 2008-2009 Dodge Challenger vehicles equipped with automatic transmissions and “Keyless Go” option, because they failed to conform to FMVSS 114. According to Chrysler’s non-compliance and defect report, a driver could depress the stop/start button and turn off the engine when the vehicle was not in park, take the fob and exit the vehicle. Chrysler recognized this sequence of events as a clear violation of the standard, which “specifies vehicle performance requirements intended to reduce the incidence of crashes resulting from theft and accidental rollaway of motor vehicles.”
But leaving a vehicle running in a closed garage and filling your home with carbon monoxide has got to be fluke, right?
Actually, no. In August 2010, Chastity Glisson, the 29-year-old owner of 2006 Lexus, died of carbon monoxide poisoning, and seriously injured her boyfriend, after she inadvertently left her 2006 Lexus running in the garage attached to her Boca Raton townhouse. Last year, the relative of a 2007 Lexus owner complained to NHTSA that his father had a near-miss under these very same circumstances:
“On or about September 11, 2009, my father returned home from dinner to his residence in Somers, New York, parked his vehicle in his attached garage, and not realizing that the ignition of the Lexus was still running, he left his key fob in the car, exited the vehicle, closed his electronic garage door, entered his house and eventually went to sleep for the evening.
He was awoken at about 2:15am by the sound of the carbon monoxide alarm located in the foyer inside his house, adjacent to the door leading into the garage. When he entered the garage, he discovered that the car’s engine was still running, the garage was filled with noxious smoke, and the vehicle extremely hot to touch both inside and out. He opened the garage door to clear out the fumes and shut down the engine using the key fob which was inside the car.
My father tells me that he has experienced similar, albeit less potentially fatal problems with the Lexus keyless ignition and the failure of the vehicle to cause an alarm to sound when exiting the vehicle when the engine was still running. On several occasions, he has parked and exited the vehicle with the key fob in his possession, only to find that he is unable to lock the doors because the engine was left running. Apparently, the inability to lock the doors of the car with the key fob when the engine remains running is the only safeguard in this situation, and one that provides no safety when, as is the case with the Somers incident, the fob remains inside the car parked in a locked garage. My father has come to discover that this is a common problem among Lexus owners equipped with keyless ignition systems.”
“There’s two different issues: rollaway and leaving the car running,” says New York attorney Noah Kushlefsky, who represents Rivera and two other cases involving fatal carbon monoxide poisonings. “The remedy on the car running is: a design that will shut down the engine after a certain amount of time, or when no occupant is present. The warnings they have are not sufficient. On the rollaway side, it’s a little more complicated. We know that cars with electronic shifters, such as the Prius, default into park when the engine is shut off. Manufacturers can do that, or the other alternative is: don’t have keyless entry systems. They are offered as conveniences, but they don’t serve much of a function.”
The Invisible Key
Why do consumers think the fob is the key? Because manufacturers refer to the devices in their owner’s manuals as keys and because it’s how they start the car.
Throughout the 2009 Nissan Murano owner’s manual, the fob is called the “Intelligent Key,” and the manual does not distinguish or separate the code from the fob. Toyota calls its fob a Smart Key, and owners’ manuals bear an illustration of the fob under the heading: “The following keys are provided with the vehicle.” In its Genesis owner’s manual, Hyundai shows a picture of its fob, also dubbed a Smart Key and says: “With a smart key, you can lock or unlock a door and even start the engine without inserting the key. The functions of the buttons on a smart key are similar to the remote keyless entry.”
So, the fob acts like a key.
Automakers consistently call these fobs, keys.
Consumers think the fob is the key.
But when its time to certify compliance with FMVSS 114, the fob is no longer the key.
Apparently, industry and NHTSA have entered into a secret agreement that the key is an invisible code. Too bad nobody told the people shelling out thousands of dollars for those keyless entry vehicles.
If a fob, or some other electronic device, starts the vehicle, the fob must have a role in turning off the vehicle and ensuring that it is locked in park, as required by the regulation. The current arrangement defies the letter and spirit the regulation.
It certainly defies common sense.
“Every day people are making the same mistake, but they do it in a circumstance that doesn’t cause any injury,” Kushlefsky says. “You have to have a confluence of factors for the risk to come to fruition.”