— A BMW X5 "comfort access" lawsuit has been shut down after U.S. District Court Judge William Orrick granted BMW's motion to dismiss, but he left the door open for the plaintiff to amend the complaint.
BMW describes the comfort access system as follows:
“The vehicle can be accessed without activating the remote control. All you need to do is to have the remote control with you, e.g., in your jacket pocket. The vehicle automatically detects the remote control when it is nearby or in the passenger compartment. Comfort access supports the following functions: Unlocking/locking of the vehicle.”
The owners’ manual provides instructions for operating the comfort access system and instructs: “Functional requirement: To lock the vehicle, the remote control must be located outside of the vehicle.”
The lawsuit was filed by Kieva Myers, the owner of a 2013 BMW X5 who alleges her child and the keys were locked inside the 2013 X5, meaning the window had to be knocked out to free the kid and the keys. Myers says all 2008-2015 BMW X5 SUVs have the alleged defect with the remote locking feature.
Myers says on October 19, 2015, she opened the rear door of her X5, placed her child inside, placed the remote inside the vehicle, shut the rear door and walked around to the driver’s door. When she attempted to open the driver’s door, the door was locked.
Because her child was too young to open the vehicle from inside, Myers was forced to break a window to open the vehicle.
Myers says she filed a complaint with BMW and heard back from Jay Hanson of BMW, who wrote:
“...we must be dealing either with a malfunction of the locking system or an inadvertent activation of the locking system via either the remote transmitter or the Comfort Access System. Again, it is not impossible to lock a key in the vehicle – and to do so is not necessarily indicative of a malfunction. For example, if a door other than the driver’s door is open and the locking button on the transmitter is pressed, the vehicle will lock when the open door is closed. If the user is unaware of having pressed the locking button, then it would certainly appear that it had somehow locked itself.”
The BMW X5 lawsuit points to owner complaints that describe the dangers caused when the door locks activate when they shouldn't. CarComplaints.com has heard the same stories from X5 SUV owners.
"My daughter was put in the backseat in a hot (100F) car and strapped in. My wife placed her purse (keys in it) on the middle console. The door was shut and locked on its own, locking my child in the car. We called BMW assist to remotely unlock the car. This did not work. A neighbor fireman came and broke the window. The car still would not unlock and my wife crawled through the broken window cutting her leg to get my now hot, red and lethargic child out of the car." - 2009 BMW X5 owner / Yucaipa, California
Myers alleges BMW knew of the alleged comfort access defect in 2007 because an internal training document acknowledges that the X5 doors can lock while the key is inside the vehicle.
The plaintiff also claims that despite BMW’s knowledge and awareness of the comfort access defect, it failed to make repairs to resolve the defect, failed to modify manuals so they are accurate and failed to pay for damages suffered by consumers as a result of the comfort access defect.
BMW asserts that Myers failed to state a viable claim and there is no defect with the comfort access system. BMW also says it has never represented that it is impossible for drivers to lock themselves out of a BMW X5 and it has warned drivers of the possibility of lockouts or a malfunction of the comfort access system.
The automaker also says her misreading of the BMW owner’s manual is insufficient to support her claims.
BMW argued the lawsuit should be dismissed because Myers "failed to plead her fraud claims with particularity or adequately alleged a defect." BMW also said she did not establish that "BMW had a duty to disclose, is not in privity with BMW, necessary for her implied warranty claim, and has not alleged that the vehicles were unmerchantable."
With the case dismissed, it's expected Myers will amend her complaint and head back to court.
The BMW X5 comfort access lawsuit was filed in the U.S. District Court for the Northern District of California - Myers v. BMW of North America LLC et al.
The plaintiff is represented by the Law Office of Robert L. Starr.
