The Drones Are Here, Bringing Liability Risks into View

Unmanned Aircraft Systems (UAS), more popularly known as “drones,” have evolved beyond overseas battlefield and clandestine operations and are increasingly being utilized inside the United States.  As with any product used in the domestic market, product liability considerations apply to their design, manufacture, sale and operation.  Therefore, now is an appropriate time to examine UAS and acknowledge the implications of their integration into the National Airspace System (NAS), including the consequential liability considerations.

UAS are defined as the unmanned aircraft and all the associated support equipment, control station, data links, telemetry, communications and navigation equipment necessary to operate the unmanned aircraft.  The unmanned aircraft is flown by a pilot or may operate autonomously.  Such a broad definition encompasses a wide range of unmanned aircraft, whether it is a 48-foot long Global Hawk military surveillance unmanned aircraft or a small, remotely controlled quadcopter designed for commercial use.  Over time the various unmanned aircraft platforms have been generally grouped together under the popular term, “drone.”   Although “drones” may conjure up images of flying machines straight out of a science fiction novel, their realistic and eventual functions in domestic society will only be limited by our imagination.

A number of interested parties are clamoring for the ability to use current and future drone technology.  Drones’ application to commercial pursuits, the advance of science, law enforcement, and general private and public interest are broad and deep.  Therefore, although currently drones’ area of operations and mission scope are largely constrained in the United States, Congress, the Federal Aviation Administration, other governmental agencies and various stakeholders are working to create a framework in which drones may be safely integrated into the NAS.  As this regulatory process progresses and more airspace is opened to drone flight, so will the number of drones navigating the air above us.  And undoubtedly, as in manned flight, there will be a correlation between increased drone flight hours and drone mishaps.

Despite superior engineering, highly trained operators, and scrupulous maintenance protocols, military drones fly in a demanding environment.  A significant number of drone mishaps, due to a variety of causes, have already transpired over the span of tens of the thousands of flight hours during overseas operations.  Military/law enforcement-related drone mishaps have already been documented in the United States, despite their limited use.  For example, in 2006, a customs agency drone crashed in the Arizona desert during border patrol operations.  On July 17, 2013, an Air Force QF-4 military drone crashed just outside Tyndall Air Force Base in Florida.  The result was that a section of nearby Highway 98 was closed down until the QF-4’s self-destruct device was confirmed safe.  Fortunately, there were no reported injuries in either instance.

Similar mishap risk translates to commercial and public interest drone use.  For example, drones assisting firefighters in battling a forest fire in a national park or drones supporting National Oceanic and Atmospheric Administration meteorologists are subject to the same physics, aeronautics, structural failures and human error as military or law enforcement drones.  Indeed, drone mishaps have already followed to the domestic civilian sector, as evidenced by two recent events.  In the first, a man was struck in the face by a photographer’s drone at a Wyoming bride-groom photo-shoot.  At the second, bystanders were injured at a Virginia public event when a drone photographing the event crashed into a grandstand.  As drone use increases in domestic airspace, so might the liability that drone operators may be subject to–not to mention UAS manufacturers who could be subject to product liability exposure under the laws of state and federal jurisdictions.

In conclusion, the drones are here.  Someday they will be as commonplace as manned aircraft, probably more so.  And with them come liability risks, as well other legal considerations associated with unmanned aircraft with various capabilities and armed with advanced sensor technology.  For example, there are as-yet unresolved issues involving privacy rights, manufacturer and operator regulatory schemes and compliance, current and future state and federal legislative action addressing the scope and function of drones, and intellectual property rights, to name a few.  Drone related subjects are as broad and evolving as the capabilities and missions drones will provide insatiable public, private and commercial interests.  As the application of this technology continues to evolve, stay tuned for future reports.