FILED

Gary Harrison
CLERK, SUPERIOR COURT
10/27/2022 2:37:28 PM
BY: ALAN WALKER /S/
DEPUTY

Case No. C20224362

1 Mark R. Gilling (015078) HON. MICHAEL BUTLER

GILLING LEGAL GROUP, PLLC

2
4808 N. 22nd Street, Suite 200
3 Phoenix, AZ 85016
Telephone: (602) 412-1199
4 Fax: (602) 535-8893
5 E-Mail: MarkGilling@GillingLegalGroup.com

6 J. Arthur Eaves (019748)

SANDERS & PARKS, P.C.
7
3030 North Third Street, Suite 1300
8 Phoenix, AZ 85012-3099
Direct Phone: (602) 532-5730
9 Fax: (602) 230-5032
10 E-Mail: artie.eaves@sandersparks.com
Firm E-mail: Minutes@SandersParks.com
11
Jeffrey G. Wigington (PHV Pending)
12
Ross W. Evans (PHV Pending)
13 WIGINGTON RUMLEY DUNN & BLAIR, L.L.P.
123 North Carrizo
14 Corpus Christi, Texas 78401
15 Telephone: 361-885-7500
Fax: 361-885-0487
16 jwigington@wirgrum.com
revans@wigrum.com
17
Attorneys for Plaintiffs
18
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
19
IN AND FOR THE COUNTY OF PIMA
20
21 ANNA BIERMAN, KEITH Case No.:
BIERMAN, and LIANA BIERMAN,
22
COMPLAINT
Plaintiffs, AND DEMAND FOR JURY TRIAL
23
24 v.
25 BMW OF NORTH AMERICA, L.L.C., a
26 Delaware Corporation; BAYERISCHE
1 MOTOREN WERKE AG, a foreign
2 corporation; JOHN SCHLAEFLI,
EVELYNE TANNEHILL, JOHN AND
3 JANE DOES I-X; and ABC COMPANIES I-
X,
4
5 Defendants.

6
Plaintiffs, for their Complaint against Defendants, allege as follows:
7
I. PARTIES
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1. Plaintiff Anna Bierman was at all times an Arizona resident.
9
2. Plaintiff Keith Bierman was at all times an Arizona resident.
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3. Plaintiff Liana Bierman was at all times an Arizona resident.
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4. Defendant BMW of North America LLC (hereinafter “BMW NA”) is a Delaware
12
corporation doing business in Pima County, Arizona and who caused an event to occur in
13
Arizona in which this Complaint arises.
14
5. Defendant Bayerische Motoren Werke AG (hereinafter “BMW AG”) is a foreign
15 corporation with a principal place of business located in Munich, Germany. BMW AG designs,
16 manufactures, and distributes BMW vehicles, including the subject vehicle, to its wholly owned
17 subsidiary BMW NA for distribution in the United States, including the state of Arizona and is
18 thus subject to personal jurisdiction in this state.
19 6. Defendants BMW of North America LLC and Bayerische Motoren Werke AG are
20 collectively referred to hereafter as “BMW”.

21 7. Defendants John Schlaefli and Evelyne Tannehill (hereinafter “Schlaefli”) are

22 husband and wife, were at all times acting on behalf of their marital community, were at all
times pertinent to this Complaint residents of Pima County, Arizona and who caused an event to
23
occur in this State out of which these claims arise.
24
8. John and Jane Does I-X and ABC Companies I-X are persons, organizations,
25
entities, sole proprietorships, partnerships, limited liability companies, and corporations whose
26

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1 conduct, true names and identities are unknown at this time. Plaintiff requests leave to amend
2 this pleading when that information is discovered.
3 II. JURISDICTION AND VENUE
4
9. Venue is proper in this Court under A.R.S. §12-401 et seq, as Defendants Schlaefli
5
and Tannehill are residents of, and Schlaefli caused an event to occur out which this complaint
6
arises in Pima County, Arizona. Further, Plaintiffs have incurred damages in an amount
7
exceeding the minimum jurisdictional limits of this Court.
8 III. FACTS
9 10. The term “vehicle in question” or “the subject vehicle” refers to the 2015 BMW
10 328i Sedan bearing vehicle identification number WBA3C1C56FK121823.
11 11. The “vehicle in question” was designed, manufactured, marketed and sold by
12 Defendant BMW.
13 12. On February 18, 2022, Anna Bierman was operating the “vehicle in question,”

14 traveling westbound on E Speedway in Tucson when suddenly and without warning John

15 Schlaefli failed to yield the right of way at the intersection, made an improper turn by turning in
front of Ann Bierman and caused a collision. During the collision, the driver’s side airbag in
16
“the subject vehicle” deployed unnecessarily, untimely, and with such extreme force as to cause
17
catastrophic injuries to Anna Bierman. Keith Bierman and Liana Bierman are the parents of
18
Anna Bierman have also suffered injuries as a result of the accident.
19
13. This action is brought against Defendants to recover damages for the injuries to
20
Plaintiffs.
21
IV. CAUSES OF ACTION - BMW
22
BMW’S ROLE WITH THE VEHICLE IN QUESTION
23
14. The “vehicle in question” was originally designed, manufactured, marketed, and
24
sold by Defendant BMW. At the time of the sale of the “vehicle in question,” BMW was in the
25
business of designing, manufacturing, and selling automotive vehicles such as the “vehicle in
26
question.”

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1 15. At all times relevant to this lawsuit, BMW was in the business of manufacturing,
2 selling, and otherwise placing into the stream of commerce, BMW automobiles, including the
3 “vehicle in question,” by transactions that are essentially commercial in character. Said
4 Defendant designed, manufactured, marketed, and sold the “vehicle in question” as part of such
5 business. Accordingly, BMW is legally responsible in strict products liability for any defects in

6 the “vehicle in question,” including its component parts.

7 16. As the “vehicle in question” was designed, manufactured, marketed, sold, and left
the possession of BMW, the driver’s side airbag in the “vehicle in question” was defective and
8
unreasonably dangerous by way of its unnecessary, untimely, and overly aggressive deployment,
9
which defective and unreasonably dangerous condition was a producing and proximate cause of
10
the injuries to Anna Bierman, her physical pain, mental anguish, and damages, and the damages
11
to her parents, Keith Bierman and Liana Bierman.
12
DESIGN DEFECT
13
17. At the time the “vehicle in question” was designed, manufactured, marketed, and
14 sold by Defendant BMW, the same was defective in design and unreasonably dangerous with
15 respect to its airbag restraint system. BMW knew or should have known that vehicles such as
16 the “vehicle in question” were unreasonably dangerous due to their defective airbag restraint
17 system, which deployed unnecessarily, untimely and in an overly aggressive fashion, in
18 foreseeable driving circumstances such as those which occurred in this situation.
19 18. The design of the airbag restraint system was defective and unreasonably

20 dangerous because its harmful characteristics and consequences of its design outweighed the

21 benefits of the design. It was not reasonable for BMW to have put this design on the market
without first changing it. Further, the airbag restraint system was also defective and
22
unreasonably dangerous because it failed to perform as safely as an ordinary consumer would
23
expect when it was used in a reasonably foreseeable manner. The defective design by BMW
24
was a cause of the injuries to Anna Bierman and her parents, Keith Bierman and Liana Bierman.
25
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1 INADEQUATE WARNINGS AND INSTRUCTIONS (INFORMATION DEFECT)
2 19. Both prior to and subsequent to the sale of the vehicle in question, Defendant
3 BMW marketed the vehicle for safe use by the public, despite the defective nature of its airbag
4 system. The airbag restraint system was defective and unreasonably dangerous for use in a
5 reasonably foreseeable manner with inadequate warnings and/or instructions. BMW knew or

6 should have known, in light of the generally recognized and prevailing scientific and technical

7 knowledge available at the time of the airbag restraint system’s distribution, that a foreseeable
use of the product may be unreasonably dangerous but failed to provide adequate warnings of
8
the danger and/or instructions for reasonably safe use. This information defect was a cause of
9
the injuries to Anna Bierman and her parents, Keith Bierman and Liana Bierman.
10
MANUFACTURING DEFECT
11
20. At the time the “vehicle in question” was manufactured and sold by BMW, it
12
contained a condition in its airbag restraint system which BMW did not intend and, as a result, it
13
failed to perform as safely as an ordinary consumer would expect when the product is used in a
14 reasonably foreseeable manner. This manufacturing defect was a cause of the injuries to Anna
15 Bierman and her parents, Keith Bierman and Liana Bierman.
16 STRICT PRODUCT LIABILITY
17 21. The BMW involved in the accident was designed, manufactured marketed and
18 sold by BMW. The vehicle was sold and introduced into the stream of commerce by BMW.
19 BMW is engaged in the business of manufacturing and/or selling cars, and manufactured, sold

20 or otherwise placed into the stream of commerce the BMW 328i involved in this accident.

21 22. BMW sold the vehicle in a condition that was defective, unfit and unreasonably
dangerous for its intended and foreseeable use at the time it left BMW including but not limited
22
to problems with the airbag system. The vehicle was further defective in design, and defective
23
due to inadequate warnings or instructions concerning its use. BMW is strictly liable to
24
Plaintiffs in tort.
25
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1 23. At the time of the accident, the subject vehicle was being used for its intended
2 purpose in a manner foreseeable to BMW. Plaintiffs were relying on the skill and judgment of
3 BMW to ensure that the vehicle would be suitable for the purposes for which it was being used.
4 24. It was economically, technologically, and practically feasible at the time the
5 vehicle was designed, manufactured, marketed, sold and/or placed into the stream of commerce

6 to provide proper warnings of the vehicle’s airbag system.

7 25. It was economically, technologically, and practicably feasible at the time the
vehicle was designed, manufactured, marketed, sold, and/or placed into the stream of commerce
8
to ensure that the vehicle’s airbag system would not deploy in an unreasonably dangerous
9
manner under foreseeable driving conditions.
10
26. As a direct and proximate result of the defective and unreasonably dangerous
11
condition of the vehicle’s airbag system, the airbag system deploying caused catastrophic
12
injuries to Anna Bierman. As a direct and proximate result of the defective and unreasonably
13
dangerous vehicle, the parent-child relationship between Plaintiff Anna Bierman and her parents
14 Kieth and Liana Bierman has been damaged and they have sustained substantial injury as a
15 result of the catastrophic injury to their daughter.
16 NEGLIGENCE
17
27. BMW was negligent in the design, manufacture, marketing and sale of the
18
“vehicle in question,” which negligence was a proximate cause of the events made the basis of
19 this suit. Such negligence includes, but is not limited to, the following acts of omission and
20 commission:
21 A. Designing and selling the vehicle with a defective restraint system;
B. Designing and selling the vehicle with an airbag system that deploys unnecessarily in
22
foreseeable driving circumstances;
23 C. Designing and selling the vehicle with an airbag system that deploys untimely in
foreseeable driving circumstances;
24 D. Designing and selling the vehicle with an airbag system that deploys with such force as to
25 cause catastrophic injury to occupants in foreseeable driving circumstances;
E. Failing to properly and adequately test the vehicle’s airbag system for appropriate, timely
26 and proper deployment;

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1 F. Failing to properly and adequately test the vehicle’s airbag system and failing to act with
2 reasonable care to protect users of the vehicle after gaining actual knowledge of
numerous injuries to occupants of vehicles such as “the subject vehicle” as a result of
3 airbag deployment;
G. Failing to provide adequate warnings concerning the unreasonably dangerous
4
propensities of the airbag system;
5 H. Failing to promptly recall the vehicle or take other appropriate remedial action; and
I. Knowing that the vehicle was unreasonably dangerous and was not as warranted and
6 represented by BMW.
7
28. Defendant BMW committed acts of omission and commission, which collectively
8
and severally, constituted negligence, which negligence was a proximate cause of the injuries to
9 Anna Bierman and her parents, Keith Bierman and Liana Bierman.
10 BMW MISCONDUCT JUSTIFYING PUNITIVE DAMAGES
11
29. Defendant BMW acted to serve its own interests, having reason to know, and
12
consciously disregarding a substantial risk that its conduct might significantly injure the rights
13
of others; and Defendant BMW consciously pursued a course of conduct knowing that it created
14 a substantial risk of significant harm to others.
15 BREACH OF WARRANTY
16
30. BMW warranted the vehicle to be free of defects at the time of delivery, which
17
warranties are express warranties within the meaning of A.R.S. § 47-2313. BMW breached
18
these express warranties by offering for sale, and selling as safe, a vehicle that is, by design and
19 manufacture, defective in that it is unreasonably dangerous and likely to cause serious injury or
20 death to the public and consumers like Plaintiffs. As a direct and proximate result of BMWs
21 breach of these express warranties, Plaintiffs suffered the injuries and damages described herein.
22 BREACH OF IMPLIED WARRANTIES
23
31. BMW is a merchant pursuant to A.R.S. § 47-2314. BMW impliedly warranted
24 that the vehicle they designed, manufactured, marketed and sold would pass without objection in
25 the trade and was fit for its ordinary use, or not otherwise injurious to consumers, and
26 adequately designed, manufactured, marketed, and labeled. Because of the undisclosed,

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1 unreasonably dangerous propensity of the vehicle’s airbag system to deploy in an unreasonably
2 dangerous manner, the vehicle would not pass without objection in the trade, was unsafe,
3 unmerchantable, and unfit for its ordinary use when sold, and was not properly designed,
4 manufactured, marketed, or labeled, and threatened to injure or kill consumers like Plaintiffs.
5 As a result of the defective and unreasonably dangerous condition of the vehicle in question,

6 Defendant BMW, in selling the vehicle in question in such condition, breached implied

7 warranties of merchantability and fitness because the airbag restraint system in question was not
fit for the ordinary purpose for which it was typically used. This breach of implied warranties
8
was a cause of the injuries to Anna Bierman and her parents, Keith Bierman and Liana Bierman.
9
V. CAUSES OF ACTION AGAINST SCHLAEFLI
10
NEGLIGENCE
11
12 32. Defendant Schlaefli committed acts of omission and commission, which
collectively and severally, constituted negligence, which negligence was a proximate cause of
13
the collision made the basis of this suit, of the injuries to Anna Bierman, her physical pain,
14
mental anguish, and damages, and the injuries to her parents, Keith Bierman and Liana Bierman.
15
33. At all times relevant to the acts alleged in this Complaint, John Schlaefli was
16
married to Evelyne Tannehill. At the time that he committed the negligence alleged in this
17
Complaint and caused the accident which injured Plaintiffs, John Schlaefli was acting for and on
18
behalf of the marital community.
19 STATUTORY NEGLIGENCE (NEGLIGENCE PER SE)
20 34. Defendant Schlaefli committed acts of omission and commission, which
21 collectively and severally, constituted statutory negligence (Negligence Per Se) which
22 negligence was a proximate cause of the collision when John Schlaefli failed to yield the right of
23 way at the intersection, made an improper turn by turning in front of Ann Bierman and caused
24 the collision.

25
26

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1 VI. DAMAGES
2
35. Nearly all of the elements of damages for personal injury are unliquidated and,
3
therefore, not subject to precise computation. Plaintiffs seek to recover damages in amounts that
4
the jury finds the evidence supports and that the jury finds to be appropriate under all of the
5 circumstances.
6 36. WHEREFORE, Plaintiffs pray for a judgment against Defendants in an amount
7 determined by a jury to be sufficient to compensate Plaintiffs for the damages they have suffered
8 and will suffer in the future as a result of Defendants’ negligence, including but not limited to:
9 1. The nature, extent and duration of the injury;
2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already
10 experienced, and reasonably probable to be experienced in the future as a result of the
11 injury;
3. General damages to compensate Plaintiff Anna Bierman for the catastrophic injuries
12 and emotional and physical pain she has suffered and will continue to suffer;
4. Special damages to Plaintiff Anna Bierman for medical and other health care expenses
13
that Plaintiff has incurred and will continue to incur in the future;
14 5. Loss of past earnings, loss of future income, and diminished earning capacity to
Plaintiff Anna Bierman;
15 6. Damages to Plaintiff Anna Bierman for the loss of enjoyment of life and a loss of the
16 ability to participate in life’s activities to the quality and extent she normally enjoyed
before her injuries;
17 7. The value of past and future gratuitous services provided by Anna’s family and friends
to the extent that such gratuitous services were made necessary by the Defendants’
18
tortious conduct which led to Anna’s injury;
19 8. Damages to Keith Bierman and Liana Bierman for loss of love, care, affection,
companionship, and other pleasures of the parent-child relationship.
20 9. For other general and special damages available under law;
21 10. For punitive damages against Defendant BMW to punish it and deter it from engaging
in like conduct in the future;
22 11. For Plaintiffs’ cost of suit;
12. For Plaintiffs’ reasonable attorneys’ fees as allowed by law; and
23
13. For such other and further relief as the Court deems just and proper.
24
VII. JURY DEMAND
25
26 Plaintiffs demand trial by jury of the matters alleged herein.

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1 RESPECTFULLY SUBMITTED this 27th day of October 2022.
2
GILLING LEGAL GROUP, PLLC
3
4 By: /s/ Mark R. Gilling
Mark R. Gilling/Bar No. 015078
5 4808 N. 22ND Street, Suite 200
6 Phoenix, AZ 850116
Phone: (602) 412-1199
7 Fax: (602) 535-8893
markgilling@gillinglegalgroup.com
8
9 J. Arthur Eaves (019748)
SANDERS & PARKS, P.C.
10 3030 North Third Street, Suite 1300
11 Phoenix, AZ 85012-3099
Direct Phone: (602) 532-5730
12 Fax: (602) 230-5032
E-Mail: artie.eaves@sandersparks.com
13
Firm E-mail: Minutes@SandersParks.com
14
AND
15
16 Jeffrey G. Wigington – PHV Pending
Ross W. Evans – PHV Pending
17 WIGINGTON RUMLEY DUNN & BLAIR, L.L.P.
123 North Carrizo Street
18
Corpus Christi, Texas 78401
19 Phone: (361) 885-7500
Fax: (361) 885-0487
20 jwigington@wigrum.com
21 revans@wigrum.com

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