This is Part 1 in a 2-part series discussing the first wave of liability issues to hit the fast-growing commercial UAV industry - Privacy, Nuisance and Trespass - causing contentious debate between the drone industry and (for the most part) property owners and property rights activists. This piece will discuss the liability risk of each of these areas of tort law, the movement to create uniform law in these areas, the roadblocks this effort is facing, and the reasons to take note and prepare a strategy to deal with this newfound risk.

 

DELIVERY DRONES ARE NOW HITTING THE SKIES

On October 18th Google parent company Alphabet’s subsidiary “Wing” became the first company to operate a commercial drone delivery service in the United States (pursuant to a Part 135 single pilot air carrier certificate) delivering tissues, bottled water, and cough drops in Christiansburg, Virginia, a small community nestled in the foothills of the Blue Ridge Mountains. Wing’s service (for FedEx and Walgreens) only covered the last mile of a package’s journey in a rural community, but it is the first small step toward what promises to be a gigantic new industry involving UAVs. October also saw UPS obtaining a Part 135 Standard Certificate to operate delivery drones at university, hospital and corporate campuses, leading it to announce UPS as the first “drone airline.” Coming soon are Amazon’s Prime Air which is still awaiting FAA approval for its filing in August, and Uber Eats which launched a test program in San Diego this summer in partnership with McDonald’s focusing on UAV delivery in dense, urban environments.

While the market for non-commercial drones appears to be slowing, the commercial market is expanding rapidly. In May, the Federal Aviation Administration (FAA) released its Aerospace Forecast which anticipates the commercial small non-model UAS fleet to nearly triple from 277,386 in 2018 to 835,211 in 2023, an average annual growth rate of 24.7 percent. With more FAA approvals coming every day, the air above our homes and places of business will soon be filled with UAVs building a new burgeoning industry, but also exposing UAV owners and operators to new areas of liability potential.

TRIGGER POINTS FOR POTENTIAL LIABILITY

While the largest potential area of liability risk for UAV owners and operators (as well as manufacturers) will ultimately be personal injury, property damage and wrongful death lawsuits, this threat has not yet matured due to a commercial UAV market which is still in its infancy, but growing more every day in breadth of use as well as size of ship.

However, with the approval by the FAA for small to medium-sized delivery drones and the huge lucrative marketplace they will fill, other potential areas for tort (a civil wrong) liability are rising to the forefront with legal activists now pushing for uniform state legislation to ensure that alleged UAV misdeeds in these areas are actionable pursuant to specifically directed and uniform laws. The three prevalent areas of potential liability for commercial UAV owners and operators are with regard to the torts of trespass, nuisance and invasion of privacy.

Trespass 

  • “Trespass to Land” is the intentional entering of another person's property without permission of the owner or legal authority or the placing or projection of any object upon the property. In order to recover a civil tort monetary award in most states for trespass, some damage must have been suffered (although in some states like California, annoyance and discomfort are enough to establish trespass). In the case of UAVs, the potential for trespass liability gets interesting depending on whether something bad (like a crash or dropped payload) happens at the property of someone who ordered a delivery (and was therefore on the property “with permission”), as opposed to a neighboring property or one en route. It gets even more interesting if the order comes from a friend or relative who doesn’t live at the delivery site but is sending a gift directed to the property owner.
  • In the case of aircraft, there is also a generally agreed concept of “Aerial Trespass” if certain factors are met. In the landmark 1946 U.S. Supreme Court Causby decision, the Court found that the common law ad coelum doctrine (which extended land ownership to the “periphery of the universe”) had “no place in the modern world” in light of the development of air travel. The Court, therefore found that a flight must “substantially interfere with the use and enjoyment of land” to constitute the tort of trespass. Pursuant to the Restatement (Second) of Torts which reflects the rule of the majority of U.S. state law: “Flight by an aircraft in the air space above the land of another is trespass if, but only if, (1) it enters into the immediate reaches of the air space next to the land, and (2) it interferes substantially with the other’s use and enjoyment of the land.” §159(2)

Nuisance

  • The term nuisance is derived from the French word nuire which means to hurt or annoy. It generally means the unreasonable interference with a person’s use or enjoyment of land or some right over, or in connection with it. Nuisance differs from trespass in that it describes a type of harm that is suffered, rather than a kind of conduct that is forbidden.  It does not matter whether the intrusion resulted from intentional, or negligent conduct, as long as the harm can be categorized as a nuisance. The harm in nuisance is usually caused indirectly as opposed to trespass, which arises from a direct, physical invasion.
  • The tort of nuisance can generally be either private (specifically affecting one homeowner) or public (interference with a right common to the general public). As delivery drones are currently fairly small and quiet, it is uncertain whether a nuisance claim is an actual risk to owners and operators; however, as aircraft (in either greater numbers or larger in size) begin hovering over homes, we may well see nuisance suits based in local law. In general aviation and commercial aircraft operation, nuisance claims have been brought (although fairly uncommon) against owners of aircraft, airports and fixed based operators (FBOs) based in state law or municipal regulation.

Invasion of Privacy

  • The Restatement (Second) of Torts at §652b (“Intrusion Upon Seclusion”) states that “[o]ne who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” This version of the tort of invasion of privacy does not require a “publication” of information or images. As to UAVs, the risk is clear. If an operator (for whatever purpose) obtains data or imaging from a property that crosses the line (depending on how “highly offensive” is interpreted), then they would be open to a claim for damages and/or an injunction for this tort.

DRONE LAWS ARISING ACROSS THE UNITED STATES

Apart from the Federal Regulations already in place (and still developing), individual states, counties and cities across the U.S. have enacted laws and regulations taking into account the concerns of citizens regarding drones in their community. The most common local regulations specifically dealing with drones are found in the areas of trespass, nuisance and privacy. The problem is that these laws were created by governmental bodies with different experiences and prejudices (for the good or bad) with regard to UAVs and often in specific response to an issue a constituent or group is complaining about at the time. The obvious problem with these divergent laws and regulations is that while they might be manageable in the current UAV environment, once commercial UAVs start appearing in U.S. skies en masse, both UAV businesses and property owners, as well as government officials will require a consistency of approach (based in research, experience and hopefully consensus) on these issues.

UNIFORM TORT LAW RELATING TO DRONES ACT

The National Conference of Commissioners of Uniform State Laws (“NCCUSL”), commonly known as the Uniform Law Commission (“ULC”), is a U.S. non-profit formed over 120 years ago with the mission of drafting legislation to bring clarity and stability in areas of state law where uniformity is deemed to be a necessity. This influential group of lawyers has been working over the last few years on a uniform law addressing tort liability and defenses uniquely associated with the use of UAVs. The stated mission of the drafting committee appointed by the NCCUSL is to eliminate the uncertainty of divergent laws and formalize liability issues arising out the increased presence of commercial drones in U.S. airspace from both a property owner and operator perspective.

The ULC published its first draft of the Uniform Tort Law Relating to Drones Act (“the Act”) in December of 2017 with its “First Reading” - the ULC requires two before voting for approval – occurring at its Annual Conference in Kansas City in October of 2018. Although the draft was unanimously approved at the time, it was met with intense negative reaction from the UAV community primarily due to a provision that held that any intrusion of airspace by an unmanned aircraft into airspace above private property up to 200 feet without the owner’s consent constituted a trespass, subject to certain exceptions such as an emergency.

This provision was introduced due to the committee’s determination that aviation law had never comprehensively addressed how public aviation rights and individual property and privacy rights aligned below 500 feet above the ground. The FAA’s requirement that small unmanned aircraft fly below 400 feet made this an area of uncertainty, but this portion of the draft arguably would have proved seriously problematic for the burgeoning commercial UAV industry. The earliest versions of the Act actually placed “per se” trespass at 50 feet, but this was moved to 200 feet as it is the ceiling at which point the FAA did not really pay regulatory attention.

After taking the concerns of the UAV community into consideration, balanced with the rights of property owners, the committee (which added more UAV industry representatives to its ranks) eliminated the 200-foot airspace provision in exchange for a “multi-factor” approach which was first released in April of 2019 in preparation for a “Second Reading” at the NCCUSL Annual Meeting in Anchorage, Alaska in July.

In its Prefatory Note for the new draft, the committee’s stated goal was to seek to clarify the application of tort law in the most controversial areas of trespass and privacy as well as seeking to confirm “less contentious” tort related questions. Specifically,

  • It clarifies that the state’s tort law applies to those who use or are responsible for unmanned aircraft operations to the extent not otherwise provided in the Act;
  • It clearly adopts the “aerial trespass” doctrine in relation to unmanned aircraft in the airspace above private land, protecting land possessor interests from intrusive unmanned aircraft incursions while not inhibiting the ability of unmanned aircraft to operate in unmanned aircraft-navigable airspace;
  • It clarifies that intentional unmanned aircraft intrusions on land are trespasses to land;
  • It clarifies the application of land possessor duties to unmanned aircraft operating above or having crashed or landed on the land possessor’s property; and,
  • It applies existing state tort law privacy protections to unmanned aircraft operations, recognizing the variety of statutes and case law on privacy among the states.

While it was the UAV industry that had issues with the first draft, this new draft caught the attention of property rights experts and activists who voiced serious concerns over the 13-factor test for a finding of “Aerial Trespass.” A number of individuals and groups issued “Comments” for consideration prior to the NCCUSL Annual Meeting laying out these concerns in detail including, among others, influential U.S. property law professors, the Pacific Law Foundation, the Heritage Foundation, and the American College of Real Estate Lawyers.

A sampling of these Comments provides a glimpse into the rising tide of the property group against the multi-factor test portion of the Act.

“As stated in the Committee’s own Prefatory Note to the Act, ‘just because something is new does not mean that existing law cannot apply to it.’ Tragically, the Act itself disregards this principle, ignoring the fact that for centuries landowners have held rights to exclude unwanted tangible objects from the immediate airspace above their land. Just because drones are new does not mean that existing law cannot apply to them.” Troy A. Rule, Professor of Law, Arizona State University Sandra Day O’Conner College of Law, May 2, 2019.

“I do not presume to prescribe the particular solution to the problem of drones, although a number of solutions are fully consistent with the considerations I have laid out. At this point, my main concern is that the endorsement of the 13-factor standard not become the occasion for undermining the law of trespass more generally.” Henry E. Smith, Reporter for the American Law Institute’s Restatement Fourth of the Law, Property, June 20, 2019.

“The proposed rule wreaks havoc on the ability of property owners to predictably exercise their ownership rights and could potentially subject property owners to liability based on an arbitrary and opaque multi-factor text.” Daniel Ortner, Pacific Law Foundation, July 10, 2019.

With the unprecedented opposition to the new draft, the NCCUSL had no real option but to determine that the Act still needed revision. Although a new drafting committee was appointed with more representation from the property rights community, the Executive Director of the ULC reports that “no decisions have yet been made on what will happen next. We’re hoping we’ll be able to provide some sort of update in the next couple months.”

POTENTIAL IMPACT ON COMMERCIAL UAV OWNERS AND OPERATORS

While there is no current timeline for the new committee to present a 3rd version of the Act, it will presumably occur at the next Annual Meeting of the NCCUSL in July, 2020 in Madison, Wisconsin. However, the commercial UAV industry (particularly owners and operators) should take notice and prepare for what is surely coming once a consensus is reached and the Act is finalized. Once approved and adopted, the significance to the UAV industry is that there will be an explicit ability to file an action “under the Act” thereby establishing a new formalized and consistent framework for litigation across the United States for plaintiffs allegedly “harmed” by UAVs.

The aviation defense and insurance community have learned the hard way over the last 60 years that risk of liability is not equivalent to fault, and, in particular, the costs associated with litigation hit a company whether it is ultimately found liable or not. As seen in the contentiousness involved in the work up of the Act, property rights advocates are a loud and powerful voice in the United States and have made their voice known about their view of UAVs.

 

PART TWO OF “ARE YOU COVERED?” COMING IN 2020

Part Two of this piece will report on the status of the newly formed ULC drafting committee at the time of writing, analyze some of the important details in the Act as it stands at that time, discuss the current state of the UAV insurance industry, and make recommendations on how to make sure a company is fully and comprehensively protected based upon the information known. It will further provide recommendations from an aviation defense counsel as well as an aviation insurer perspective as to specific things a company can do to put itself in the best liability/risk position possible with regard to potential claims for trespass, nuisance and/or invasion of privacy.

If there are any other topics that you would like to see included in Part 2, please connect with us on social media or via e-mail with your thoughts.