Today it seems that smart keys are everywhere. If the 2000s represented the decade where smart keys first burst onto the scene, the 2010s represent the decade where they became a standard feature in the vast majority of new automobiles. Today nearly every major auto manufacturer has their own branded version of a smart key for use in a keyless ignition system. Systems that are currently sold and marketed include:
- Toyota Smart Key
- Lexus Smart Access
- Ford Intelligent Access
- Nissan Intelligent Key
- BMW Comfort Access System
- Audi Advanced Key
- GM Passive Entry Passive Start
- Hyundai Proximity Key
- Mercedes Keyless Go
- Volkswagen KESSY (Keyless Entry & Keyless Start)
However despite the convenience of keyless entry systems, many of the smart key systems introduce dangerous safety concerns due to apparent violations of Federal Motor Vehicle Safety Standard 114 (FMVSS 114). FMVSS 114 is concerned with the safety risks presented by vehicle thefts and vehicle rollaways.
Two of the biggest safety problems reported by drivers with a keyless entry system are related to forgetting to turn off the vehicle when they exit it. If the driver forgets to turn off the car and shift it into park, the car is likely to roll away and cause severe injuries or property damage. In other instances, vehicles have been parked in a garage or other encloses space, but have not been shut down. In these instances carbon monoxide has become concentrated leading to severe injuries, neurological damage and death.
These accidents and injuries go beyond simple human foibles including distractibility and forgetfulness. Rather, keyless entry and ignition systems make injuries of this type more common because they ignore decades of standardized and engrained processes required by FMVSS 114. Drivers expect their vehicle to operate in a certain way. When their car, truck or SUV contravenes safety standards and does not perform how the consumer expects, the likelihood of catastrophic injury or wrongful death is increased significantly.
A Brief History of FMVSS 114
FMVSS was first prosed in December 1967 solely as a theft protection standard. The theft protection goal, however, was linked to safety because it was believed that a car thief would drive a vehicle more recklessly and thus was more likely to cause an accident. The first rule required car manufacturers to utilize a large number of key combinations to prevent theft. Furthermore, and more relevant to our interests, the standard also required a car to be equipped with advice to remind drivers that the key had been left behind in the vehicle. This rule was tweaked in 1980 to cover additional vehicles including light trucks.
In 1988, the agency moved to address the problem of vehicles that appeared to be parked, but had not been properly secured and would rollaway leading to severe injuries and deaths. Scenarios noted by the NHTSA included:
- When the key was removed from the ignition accidentally.
- Inadvertent actuation of the gear shift lever in a car or truck equipped with an automatic transmission.
- Children who would move the gear shifter from park to neutral while the car was turned off.
In 1990, a final rule was issued. The new rule set forth a mandatory requirement for vehicles with automatic transmissions with a park position. They must have a key locking system that will not allow the removal of the key unless the transmission was locked in park. Alternatively, compliance could be secured by designing the system so that the removal of the key would shift the car into park. However the rule was clear in that the vehicle key could not be permitted to be removed unless the car was shifted into park.
The next major revision of the standard did not occur until after a, August 2005 notice of proposed rulemaking issued by the NHTSA. The notice informed automakers and the public of the agency’s intent to revise theft protection standards to better reflect advances in keyless technology. The 2005 proposed amendments were not codified into a formal rule until April 2006. The formal rules addressed the language that, due to technological advancements, had become outdated in the standard. One of the changes reflecting this goal was redefining the term “key.” The new definition of the word reflected that a key could include both the physical device and a digital key code. Furthermore the regulation was reorganized into two sections. One section addressed theft protection concerns and the second section addressed vehicle rollaway concerns. The 2006 final rule also contained a provision making an audible warning mandatory to prevent keys from being left behind in the vehicle.
While NHTSA proposed new standards for keyless ignition systems in 2011, the agency has yet to adopt a final rule. Furthermore, in March of 2014, information obtained by Safety Research & Strategies, Inc. revealed that NHTSA was engaged in a compliance investigation concerning more than 30 vehicles equipped with keyless entry systems. The investigation was intended to determine whether these systems violated provisions of FMVSS 114.
Key FOBs are marketed as keys, but not treated as such during compliance testing
The first of the theft protection-focused provisions of SMVSS 114 reads:
S 5.1.1 Each vehicle must have a starting system which, whenever the key is removed from the starting system prevents:
(a) The normal activation of the vehicle’s engine or motor; and
(b) Either steering, or forward self-mobility, of the vehicle, or both.
The text of the law alone seems to supports two inferences regarding the author’s expectations. First, the authors expected each vehicle to be equipped with a starting system that a key can be placed into. Supporting this interpretation of the provision is the definition of a starting system that defines the system as, “the vehicle system used in conjunction with the key to activate the engine or motor.” Second, the authors expect every vehicle to be equipped with a key that will be used “in conjunction” with the starting system. The definition of a key includes physical devices and electronic codes “which, when inserted into the starting system (by physical or electronic means), enables the vehicle operator to activate the engine or motor.” Now, further consider that the first section addressing rollaway protections incorporates by reference the theft-protection provisions of FMVSS 114 while expanding the requirement to prevent the removal of the key unless the vehicle is in the park position.
This brings us to a key point. When keyless entry systems are marketed, the key fob is nearly always represented as the key – as the consumer would expect due to years of ingrained and nearly ritualistic behavior involving the use of a key to start and stop a vehicle. But, when it comes to FMVSS compliance testing, suddenly the key is an electronic code and engrained consumer behavior. One consumer complaint raises a number of concerns regarding the keyless ignition system found in a 2013 Nissan Altima. Office of Defects Investigations (ODI) Vehicle Owner Questionnaire (VOQ) 10553008 states:
..I rented a car last week … my first experience with keyless ignitions. I only had the car for one day and was not used to this system. Late at night I parked car, pushed the ignition to “off” started to get out of the car, when car started driving forward because I had forgotten to put it in park. I was knocked down in the middle of the street, it was pitch black outside, I had no idea what was happening, until I saw the car driving away. I managed to chase the car and jump back inside before it hit anything… Not having any warning/safety measure to let people know that the car is not in park, coupled with a whisper quiet engine, is a totally dangerous combination, and clearly deadly from many on line accounts I have read…
Here, the importance of human behavior factors is extremely clear. Decades of ingrained habitual behaviors due to standardization of how keys work in vehicles cannot be discounted. Today, people do not expect or even fathom that they could remove a key from a still running vehicle, because such actions have been impossible since the establishment of FMVSS 114. When today’s whisper quiet engines are consider in contrast to the roaring gas guzzlers of the 1960s and 1970s, it is just one more behavioral factor that prevented mistakes that has been discounted and forgotten about by the industry.
However, the distinction an automaker would make here is small but telling. They would likely state that the standard has not been violated because the key remained in the vehicle the entire time. Except when they say key, they don’t mean the key fob. Rather, they mean the electronic unlock code never left the starting system before the vehicle shifted out of park. This brings us to our problem, in the past the usage of the key was designed to leverage behavior and physical factors so that it was much more difficult to forget to put the vehicle in park or to forget to turn off the car or truck. Today, making a mistake of this type is a momentary distraction causing you to walk out of the car with it still running and the keyless starter still in your pocket.
What does FMVSS require? Have there been recalls due to a violation of FMVSS114?
In essence, FMVSS requires automobile manufacturers to design and build their vehicles to address certain common safety risks. FMVSS design guidelines include requirements that:
- Prevent the activation of the vehicle engine or motor when the key is removed from the starting systems.
- Prevent both steering and forward mobility of the vehicle while the key is not inserted into the starting system.
- Allows for the key or key code combinations in excess of 1,000 combinations.
- The activation of an audible warning tone when the key is inserted into the starting system and the driver’s side door is left open.
- Prevent the removal of the key from the starting system except when the vehicle is in park or will become parked through the removal of the key.
- The gear shifter cannot be moved out of the park position unless the key is inserted into the starting system
While many parts of FMVSS 114 can be argued, since 1992, the requirement for all vehicles with automatic transmissions & a park position to come equipped with a key locking system has been clear. But, despite this clear requirement, violations of the standard have occurred.
In 2008 the Dodge Challenger was equipped with both a keyless entry & ignition option along with an automatic transmission with a park position. In recall number 08V458000 initiated on September 10, 2008 Chrysler admitted that its ignition system, as it was designed, did not comply with provisions of FMVSS. As the “Keyless Go” option was originally designed and implemented, a driver could press the start/stop button on the key fob and turn off the vehicle while the car was not parked. By pressing the button, the electronic key code could be removed while the vehicle was in operation. The recall reprogrammed the key fob to prevent the vehicle from being shut down by the key fob unless the driver had already moved the shift lever into the park position. While this solution was, apparently, acceptable at the time, by 2011 NHTSA had indicated that a solution like this one would be less than ideal because the driver may want to use the key fob to shut down the vehicle in the event of an emergency.
Starting Systems Must Prevent Vehicle Shutdowns Unless the Vehicle is in Park
If you thought that the problems regarding keyless ignitions have been worked out since the 2008 Dodge recall, think again. Ford recently announced a recall of its 2015 Lincoln MKC because drivers have been confused by the vehicle’s novel control scheme and have erroneously turned off their vehicle while operating it. The Lincoln MKC is equipped with a push-button ignition and a dash-mounted gear-shift quadrant that harkens back to Chrysler’s push-button designs from the 1950s and 1960s.
The 2015 MKC’s gear controls are no longer located in their familiar location between the driver and passenger seats, rather they have been relocated to either side of the entertainment console. The gear shift controls are arranged vertically in the relatively traditional Park-Reverse-Neutral-Drive- Sport/Low Gear configuration. However, the ignition switch was placed directly below the gear controls. Drivers and vehicle owners have reported problems with the vehicle coming to a sudden, unexpected and halting stop when the ignition button is pressed during normal operation. Ford has stated that it plans to fix the problem by moving the location of the ignition button.
However, there is a strong likelihood that both the original design and the proposed fix violate the vehicle rollaway protections contained within FMVSS 114. Section 5.2.1 require:
Except as specified in S5.2.3, the starting system required by S5.1 must prevent key removal when tested according to the procedures in S6, unless the transmission or gear selection control is locked in “park” or becomes locked in “park” as a direct result of key removal.
Here, it would appear the key, in the form of an electronic code, can be removed from the vehicle when it is not in the park position. This would appear to put the 2015 Lincoln MKC in violation of FMVSS 114. Furthermore, if the fix is truly limited to merely relocating the button, it would appear that the fix fails to fully address the safety concern and completely fails to address this requirement of FMVSS 114.
FMVSS 114 Requires a warning sound when keys are left in the ignition and the driver’s door is ajar
Ford’s difficulties with FMVSS 114 and novel ignition systems is perhaps not surprising. According to NHTSA, the entire investigation into smart key compliance was predicated on a recall announced by Ford regarding FMVSS 114 compliance problems in its 2013 Ford Focus. FMVSS 114 Section 5.1.3 requires that absent an exception, a vehicle must emit:
An audible warning … whenever the key is in the starting system and the door located closest to the driver’s designated seating position is opened
In March of 2013, NHTSA’s Office of Vehicle Safety and Compliance (OVSC) contacted Ford regarding the performance of the 2013 Ford Focus Electric’s Intelligent Access (IA) key during routine FMVSS 114 compliance testing.
While Ford did not admit that its systems were non-compliant it did issue a recall to correct the issue. Ford’s reasoning for the recall was stated by the company as, “While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford’s consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a ‘key in ignition’ door chime to address the agency’s question with respect to requirements of FMVSS 114 Section 5.1.3 (Theft Protection).”
Preventing vehicle Rollaways is Possible, But Human Factors Must be considered
Consider the process of starting or stopping a vehicle’s engine. You bring the vehicle to a halt, move the gear shift into park, you remove the key and then exit the vehicle. If you miss any of the steps, the vehicle will not permit you to move onto the next step. Furthermore, the buzzing sound that alerts when a driver attempts to exit the vehicle without the keys, is a universally recognized reminder. In short, when the NHTSA promulgated FMVSS 114 and its amendments, human factors were considered. In fact, NHTSA rejected auto manufacturers assertions that such an alert was unnecessary and that a mass education campaign would better protect consumer safety. However, the agency recognized that mass education would take time during which many more preventable injuries and deaths would occur. Furthermore, the agency recognized that there will always be people who are forgetful. Here, NHTSA recognized that the immediate beneficial impact of the alert noise would have significant utility in comparison to an education program.
The same cannot be said for smart keys and their digital unlock codes. While it is true that regardless of whether the key is physical or digital, it cannot be removed from a car without shifting into park. However, the physical key provides an effect that deters leaving a vehicle when it is one to roll away while the digital key does not. NHTSA has promised to address this problem, but even their proposed solution does not adequately consider human factors or human behaviors.
NHTSA has claimed that it is looking into addressing these concerns. In its December 2011 Notice of Proposed Rulemaking, the agency promoted audible warnings based on those developed for FMVSS 403. However, it is not clear that the agency has adequately developed this proposal. The information provided by NHTSA contained no human factors that would reveal whether the new warning system would be sufficient to protect against the new hazards introduced by smart keys. While audible warnings certainly play a role in protecting against rollaway and carbon monoxide injuries, they are not a comprehensive solution nor do they satisfy the requirements of FMVSS 114 alone. A thoroughly considered safety system should:
- Prevent vehicle shutdown unless the vehicle has been shifted into park or have the vehicle automatically shift into park when a shutdown command is sent.
- Develop standardized starting and shutdown methods and procedures.
- Involve the key fob in the process because the device is marketed as a key and consumers expect the device that started the vehicle to play a role in turning it off.
- Proximity detection features that can determine when the driver is walking away from a running vehicle with the key fob and shut down the vehicle. If the driver wants to leave the vehicle running for passengers or a pet, the key fob must be left behind similar to how a key must be, traditionally, left in the ignition.
In particular, the fourth suggestion is essential because the agency should not be writing rules that contravene its theft protection and safety goals merely for the convenience of the driver. Writing the rules to make it easier to leave a vehicle with the electronic key still in it makes little sense in light of NHTSA’s goals, but it is completely rational from the perspective of a car maker.
Injured By a Keyless Ignition Vehicle?
If you or a loved one has been seriously injured by a vehicle equipped with remote ignition, contact an experienced personal injury and defective products attorney. Regardless of whether your injury was due to a vehicle rollaway or carbon monoxide build-up, the lawyers of The Reiff Law Firm have been trusted by injured Pennsylvanians for more than 3 decades. To schedule a free consultation call (215) 709-6940 today.
