Drones: A New Legal Frontier (Part 2: Legal Concerns)

If you missed it, you can find Part 1: FAA Regulations here.

On the TV show Modern Family, a drone spied on a sunbathing Gloria (invasion of privacy), Phil used his “professional aerial photography tool” or drone to find Luke and his friends (trespassing), and Jay crashed his model airplane into Phil while attempting to “thread the needle” (personal injury).  Modern Family comically illustrates some of the many potential legal issues drones present.  Before you or your company invests in a drone, you should consider three legal issues that are likely to be on the legal horizon for drone use:  tort liability, insurance, and products liability. 

Tort Liability

Potential tort actions involving drones may arise from claims of invasion of privacy, personal injury, and property rights and damage.

Invasion of Privacy

Drones’ high-resolution picture and video capturing abilities may lead to invasion of privacy claims.

Personal Injury

As with many new technologies, drones may injure people, and the injured will want to hold someone legally responsible. Courts will have to determine what test and accompanying standard an injured person must prove to establish liability.

• Courts may rely on a negligence standard requiring the injured person to prove the four elements of negligence (an existing duty, a breach of that duty, an injury as a direct result of that breach, and resulting damages). This approach would help discover what caused the drone’s failure, but could cause costly, lengthy litigation.
• Courts may instead turn to res ipsa loquitur, a strict liability standard which presumes the drone’s owner is legally responsible for an injury caused by his drone, regardless of the owner’s role in the injury (i.e., if you are injured by something falling from the sky, its owner is liable regardless of the circumstances). This option would provide an efficient path for victims but an uncertain liability risk for drone owners.
• Another possibility is that courts may create a new or hybrid liability standard.

Property Rights and Damage

Property law, including nuisance and trespass law, may have an impact on drone use.

• A nuisance is an unlawful interference with the enjoyment and use of another’s property. For example, the National Parks System banned drone use in parks because drones created a nuisance to wildlife and potential danger to park visitors.
• Courts may use trespass law to establish who owns the airspace over property and how high that ownership right continues. A 1963 U.S. Supreme Court case held that an aircraft flying over private property is not trespassing so long as it is above the “minimum safe altitude” (which, according to the Court, could range from 500 to 1,000 feet depending on the circumstances), but that standard may likely have to be interpreted differently for drone use—the FAA’s proposed rules cap the maximum flying altitude for drones at 500 feet.

Insurance

Damage and injury caused by “aircraft” are commonly excluded from standard general liability policies, and a drone is likely to be considered an aircraft under your policy.  Coverage options should be discussed with your carrier as this is a rapidly evolving area of insurance.

Another insurance consideration is the impact of your company’s drone use on workers’ compensation premiums.  Drone operators may be considered aviation employees which may carry significantly more expensive premiums.

Products Liability

To minimize products liability risks, drone manufacturers must remain cognizant of the new legal framework for drones.  Like the above tort liability and insurance categories, products liability exposure and risk is unknown because drones open a new market.  However, drone manufacturers may soon become susceptible to causes of action like strict products liability, breach of warranty, and unfair and deceptive trade practices.

As your company heads toward drone technology, let Gutwein Law guide you through the changing rules and regulations and how they affect your business.