Trial Magazine

Drones—also known as unmanned aircraft systems (UAS)—now outnumber piloted aircraft in the United States and are expected to reach 7 million in number within the next three years.¹ In January 2016, the Federal Aviation Administration (FAA) announced that more than 300,000 people had registered their drones in compliance with its new drone registration rule, and drone registrations now exceed the piloted aircraft registrations in the agency’s database.²

The popularity of drones has led to increased focus on their potential problems, including personal injury risks, defectively designed products, and privacy concerns. And a recent challenge to the drone registration rule undermines the regulatory progress made so far. Until the FAA finds a way to regulate drones adequately, or Congress authorizes local governments to do so, we will likely see a real compromise in safety and privacy.³ It is up to plaintiff attorneys to hold drone manufacturers and operators responsible for injuring people and invading their privacy.

Regulatory State of Play

The FAA’s drone registration rule took effect on Dec. 21, 2015.⁴ The rule mandated that all drones in the United States weighing .55 pounds or more be registered and affixed with a registration number by Feb. 19, 2016.⁵ Failure to register (or to assist your minor child’s drone registration) carried fines of up to $27,500 and a maximum three years of jail time.⁶ Different rules apply to commercial operators, who must obtain remote airman pilot certificates, conduct preflight checks, and fly in specified airspace.⁷

But in May 2017, the D.C. Circuit vacated a large part of the registration rule as it applies to recreational users.⁸ Finding that §336(a) of the 2012 FAA Modernization and Reform Act expressly states that the agency “may not promulgate any rule or regulation regarding a model aircraft,” the court defined “model aircraft” as an unmanned aircraft used for recreational purposes only.⁹ This means that the FAA cannot regulate hobby drones as long as the following conditions are met: The drone is only flown for fun, weighs 55 pounds or less, is operated five miles away from an airport, gives way to manned aircraft, and is flown in accordance with “safety guidelines.”¹⁰ In response, the FAA’s drone registration page changed to reflect two choices: either “Fly for Fun under the Special Rule for Model Aircraft” or “Fly for Work/Business.”¹¹ UAS owners who select the “fly for fun” option are told that registration is not required but that they may do so to help recover lost equipment.

After the D.C. Circuit’s ruling, the Air Line Pilots Association issued a statement that the decision’s consequences are “a threat to the safety of our national airspace.”¹² With a surge in pilots reporting drone sightings in flight, as well as near misses with drones, pilots have something to complain about.¹³ According to the Flight Safety Foundation, approximately 47 percent of commercial jet airplane incidents occur during the approach and landing phases of flight and account for approximately 40 percent of onboard airplane fatalities worldwide.¹⁴ Many drone sightings have been noted during these phases of flight.¹⁵

Operating drones around airplanes, helicopters, and airports is dangerous and illegal. But the FAA receives about 100 reports each month of drone operators breaking these rules.

Operating drones around airplanes, helicopters, and airports is dangerous and illegal—so is operating in ­flight-restricted areas such as the airspace surrounding Washington, D.C., operating a drone around a stadium within one hour before and after certain sports events, and  operating near a wildfire.¹⁶ But the FAA receives about 100 reports each month of drone operators breaking these rules.¹⁷ Drones reported around airplanes, helicopters, and airports are usually too small to be detected by radar and do not carry transponders that would broadcast their locations. And whether they are marked with serial numbers depends on whether their owners registered them. The drones often just disappear, and there are no consequences.

Personal Injuries 

Even with regulatory efforts stalled, incidents of drones seriously injuring people have resulted in criminal prosecutions and civil litigation. For example, in June 2015, a group of people gathered to march in the Seattle Gay Pride Parade. Suddenly, a drone careened off the Safeco Plaza building and hit a 25-year-old woman, knocking her unconscious.¹⁸ A man emerged from the crowd, holding a remote control, to claim his drone. The drone operator was convicted of reckless endangerment, sentenced to 30 days in jail, and ordered to pay a $500 fine and to enroll in a drone safety course.¹⁹

There have been many other reports of drones inadvertently injuring people. For instance, multiple injuries occurred when a drone recording an event crashed into spectators at Virginia Motorsports Park.²⁰ Tragically, a drone decapitated a teen in a Brooklyn park in 2013; other deaths caused by drones have been reported in Texas and Switzerland.²¹ Personal injuries from drones typically arise from operator negligence and defective design of the drone itself. While civil litigation is in the early stages, here are some points to keep in mind when building a case.

Negligence. You can establish a negligence case against a drone operator by demonstrating unsafe or reckless operation. Safety standards found in the Drone Pilots Association Code of Conduct, the Academy of Model Aeronautics National Model Aircraft Safety Code, or even the FAA’s mobile app B4UFLY are a good starting point.²²

Members of the Academy of Model Aeronautics are insured for recreational drone use.²³ Commercial drone insurance is sold by major aviation insurers such as USAIG, Global ­Aerospace, and XL Catlin. Global Aerospace even has a drone insurance app that provides liability coverage by the hour for commercial or recreational users.²⁴ Many homeowners policies do not cover liability for recreational drone use, just property loss for the cost of the drone itself.

Products liability. When considering a products liability suit against a drone manufacturer, consider whether the drone was safe as designed—many state laws provide for strict liability for unsafe design.²⁵ Did the drone come with propeller guards? Did the drone pilot remove the propeller guards (to enhance performance, for instance)? Unguarded blades are extremely dangerous—for example, an early drone personal injury case making its way through Colorado state court involves a father who suffered a full ­thickness corneal laceration when the unguarded blade on his son’s new drone made contact with his eye.²⁶

Other safety features to look for are software options such as startup health checks (for example, to check power supply and weather conditions) that prohibit takeoff if the drone is not capable of safe flight; in-flight collision avoidance systems; return on lost link that allows the drone to retrace its planned route back to takeoff if communication with the operator is lost; ­no-fly-zone geofencing systems that detect off-limits airspace and prevent drones from taking off near it or entering it; in-flight minimum safe altitude warnings; and even parachute releases to terminate a flight.

Another consideration is marketing: Manufacturers’ representations sometimes seem extreme. They may claim that a drone is safe for indoor and outdoor use, offers the best control or is the most ­user-friendly, or—my favorite—is “the world’s safest drone.” There is a lot of fodder in the advertising, which can be used to make a claim of negligent misrepresentation when an end user has relied on false or misleading representations. Some jurisdictions allow for strict liability when a manufacturer makes a public statement about the safety of a product—known as tortious misrepresentation.²⁷ Such advertising also may constitute a breach of warranty or failure to warn.

Finally, if the drone was equipped with a camera, it may have been filming during the incident and recorded valuable evidence. Find the footage: It may be stored in the device’s cache, as well as on the SD card of the camera or phone being used with the drone. You can download this video to a computer using a USB cord or a memory card reader. If you do not have access to the drone, immediately send a preservation of evidence letter to the owner or operator asking that the video and associated data be preserved.

What’s Next?

Drones are just the beginning. For example, people-carrying drones, some of which are known as VTOL (Vertical Take Off and Landing), are aircraft capable of taking off and landing without runways, using small launch pads instead.²⁸ They run on battery power for short-range and ­low-altitude operations. Some VTOL aircraft are fully autonomous drones while others can be piloted.²⁹

Uber has plans to harness VTOL taxis in densely populated and heavily trafficked areas.³⁰ The city of Dubai is already testing VTOL taxi operations with German firm Volocopter’s unmanned people-carrying drone, which can fly for up to 30 minutes.³¹

NASA has described VTOL as the dawn of a new era in aviation.³² But the law is having difficulty keeping pace with current drone technology, let alone with what’s on the horizon. Plaintiff attorneys must ensure that consumers’ voices are heard and that manufacturers and operators act safely as drones and other technology fill our skies.

Alisa Brodkowitz is a partner at Friedman Rubin in Seattle. She can be reached at alisa@friedmanrubin.com.

Notes

1. Fed. Aviation Admin., 2017 FAA Aerospace Forecast, www.faa.gov/data_research/aviation/aerospace_forecasts/. For example, the FAA announced a settlement with Skypan International, Inc., of $200,000 for 65 unauthorized drone photography flights over two years in congested airspace (the original proposed fine was $1.9 million). Press Release, FAA and Skypan International, Inc., Reach Agreement on Unmanned Aircraft Enforcement Cases (Jan. 17, 2017), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21374.Randall O. Sorrels & Michelle A. Ciolek, When Disaster Strikes, Trial 34 (April 2018).

2. Press Release, Fed. Aviation Admin.,  FAA Registered Nearly 300,000 Unmanned Aircraft Owners (Jan. 22, 2016), www.faa.gov/news/press_releases/news_story.cfm?newsId=19914; Fed. Aviation Admin., You & UAS, FAA Safety Briefing, at 10 (May/June 2017), www.faa.gov/news/safety_briefing/2017/media/mayjun2017.pdf.

3. On May 25, 2017, several senators introduced a bill, The Drone Federalism Act, to allow local governments to create ­drone-specific rules for their communities. The FAA claims authority to regulate airspace from the ground up. 49 U.S.C. §40103. 

4. Press Release, Fed. Aviation Admin., FAA Announces Small UAS Registration Rule (Dec. 14, 2015), www.faa.gov/news/press_ releases/news_story.cfm?newsId=19856. A comprehensive compilation of the rules from 14 C.F.R. pt. 107 applicable to drones is available in Fed. Aviation Admin., Small Unmanned Aircraft Systems, Advisory Circular 107–2 (June 21, 2016).

5. Id.

6. Fed. Aviation Admin., Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78593 (Dec. 16, 2015).

7. 14 C.F.R. pt. 107.

8. Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017).

9. Id. at 1091, 1093. The act defines “model aircraft” as “an unmanned aircraft that is—(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”

10. Fed. Aviation Admin., Fly for Fun Under the Special Rule for Model Aircraft, www.faa.gov/uas/getting_started/fly_for_fun/

11. Fed. Aviation Admin., Unmanned Aircraft Systems—Getting Started, www.faa.gov/uas/getting_started/.

12. Press Release, Air Line Pilots Ass’n, Int’l, ALPA Statement on Federal Court Decision Blocking FAA from Requiring Recreational Drone Registration (May 24, 2017), www.alpa.org/news-and-events/news-room/2017-05-24-statement-federal-court-decision-blocking-faa-requiring-drone-registration.

13. Joshua Berlinger & Aaron Cooper, 2 Airliners Fly Within 100 Feet of Drone Above New York, CNN (Aug. 3, 2015), www.cnn.com/2015/08/01/us/drone-airliner-jfk/.

14. Frank Jackman, Nearly Half of Commercial Jet Accidents Occur During Final Approach, Landing, Flight Safety Found. (Nov. 4, 2014), https://flightsafety.org/asw-article/nearly-half-of-commercial-jet-accidents-occur-during-final-approach-landing/.

15. Bard College Ctr. for the Study of the Drone, Drone Sightings and Near Misses, http://dronecenter.bard.edu/drone-sightings-and-near-misses/.

16. Advisory Circular 107-2, supra note 4; 14 C.F.R. pt. 91 (Dec. 7, 2017).

17. Fed. Aviation Admin., UAS Sightings Report, www.faa.gov/uas/resources/uas_sightings_report/.

18. Steve Miletich, Pilot of Drone That Struck Woman at Pride Parade Gets 30 Days in Jail, Seattle Times (Feb. 24, 2017), https://www.seattletimes.com/seattle-news/crime/pilot-of-drone-that-struck-woman-at-pride-parade-sentenced-to-30-days-in-jail/.

19. David Kravets, 30 Days Jail for Operator of Drone That Knocked Woman Unconscious, Ars Technica (Feb. 27, 2017), https://arstechnica.com/tech-policy/2017/02/30-days-jail-for-operator-of-drone-that-knocked-woman-unconscious/.

20. Conner Forrest, 12 Drone Disasters That Show Why the FAA Hates Drones, TechRepublic (Mar. 20, 2015), www.techrepublic.com/article/12-drone-disasters-that-show-why-the-faa-hates-drones/.

21. J. David Goodman, Remote-Controlled Model Helicopter Fatally Strikes Its Operator, N.Y. Times (Sept. 5, 2013), www.nytimes.com/2013/09/06/nyregion/remote-controlled-copter-fatally-strikes-pilot-at-park.html.

22. Drone Pilots Ass’n, Drone Pilots Association Code of Conduct, http://dronepilotsassociation.com/code-of-conduct/; Academy of Model Aeronautics National Model Aircraft Safety Code, www.modelaircraft.org/files/105.pdf; Fed. Aviation Admin., B4UFLY Mobile App, www.faa.gov/uas/where_to_fly/b4ufly/.

23. Academy of Model Aeronautics, Benefits of This Association, www.modelaircraft.org/membership/membership/overview.aspx.

24. Global Aerospace, Verifly On-Demand Drone Insurance, www.global-aero.com/programs/verifly/.

25. See, e.g., Rev. Code Wash. §7.72.030 (2017); Ore. Rev. Stat. §30.920 (2017); Greenman v. Yuba Power Prods., Inc., 377 P.2d 897 (Cal. 1963).

26. Jacky v. Parrot SA, No. 2017CV31101 (Colo. Dist. Ct. Denver Cnty. filed Mar. 24, 2017). 

27. See Restatement (Third) of Torts §9 (1998) (“One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.”).

28. Libby Plummer, What is VTOL? A Beginner’s Guide to Vertical Take-Off and Landing Technology, Wired (Apr. 28, 2017), www.wired.co.uk/article/vtol-vertical-take-off-landing-explained.

29. The Beam, 9 Personal Flying Vehicles—CleanTechnica’s New “Flying Car” Overview Page, CleanTechnica (Mar. 24, 2017), https://cleantechnica.com/2017/03/24/flying-cars-overview/.

30. Uber Elevate, Fast-Forwarding to a Future of On-Demand Urban Air Transportation (Oct. 27, 2016), https://www.uber.com/elevate.pdf; Melissa Repko, Uber Is Really Serious About Flying Cars and Dallas Could be First City to Test Them, Dallas News (Apr. 25, 2017), www.dallasnews.com/business/technology/2017/04/25/dallas-chosen-uber-first-us-city-test-flying-cars.

31. Noah Browning, Dubai Starts Tests in Bid to Become First City With Flying Taxis, Reuters (Sept. 25, 2017), www.reuters.com/article/us-emirates-dubai-drones/dubai-starts-tests-in-bid-to-become-first-city-with-flying-taxis-idUSKCN1C0232.

32. Uber Elevate, supra note 30, at 14. The Department of Transportation has an Automation in Transportation Task Force, comprising mostly manufacturers.