Law Tips: Drones – What are the Civil Liability Issues and Questions on the Horizon?

There is little doubt that the use of drones, or unmanned aircraft systems (UAS), will increase exponentially in the near future. The increase of drone activity in the United States will also lead to the potential for various types of civil liability for personal injuries and property damage/property rights claims. Chris Stevenson, ICLEF faculty participant from Wilson Kehoe Winingham, provides his expertise for Law Tips readers on the lurking civil liability causes of actions related to drones.

Currently, there is very little case law that has dealt with claims involving drones. As with any new technology, courts lag behind in developing the laws that will help shape how drone civil liability issues will be handled.

History has shown that, when dealing with legal issues arising from new technology, courts build on existing tort principals. With this in mind, it is possible to envision the tort principles that may provide the building blocks for legal claims arising from the use of drones. There are several avenues of civil liability related to the use of drones, some arise from tort law and others from property law.

In this Law Tips space I’ll share the legal theories and doctrines relating to two of them: personal injury and property rights and damage. Today we look into the legal theory and current status of personal injury law that comes into play with the use of drones.

Injuries from new technology lead to the development of new law. One only need look at the automobile to see this legal development over time. Automobiles brought about the fall of contractual privity for injury claims. MacPherson v. Buick Motor Co., Ill N.E. 1050 (N.Y. Ct. App. 1916). Advanced safety technology in cars led to the development and application of federal standards that now preempt state laws in many situations. See Geier v. American Honda Motor Company, 529 U.S. 861 (2000). Similarly, drones are destined to cause injuries to people, which will lead courts to discard some antiquated legal doctrines and also develop new ones as well.

The most significant question on the horizon for drones will be what must an injured person show to prove liability? Courts may approach drones as they approached the failing flour barrel in Byrne v Boodle, 159 Eng. Rep. 299 (1863). In Byrne, a flour barrel fell out the window of a second story floor and struck the plaintiff in the head, injuring him. There was no way for the plaintiff to prove what caused the flour barrel to fall or what, if any, unreasonable action led to its fall. The Court of Exchequer found that the plaintiff should not need to prove that someone acted negligently. Rather the court developed the doctrine of res ipsa loquitor, or the matter speaks for itself. Simply stated, flour barrels should not fall from the windows of second floors without something going unreasonably wrong. The doctrine of res ipsa loquitor later evolved into product liability’s standard of strict liability.

While flour barrels and drones share little in the way of technology, they both should not fall from the sky unless something has gone wrong. Under a strict liability theory, presumably the drone’s registered owner would be legally responsible for the injury, regardless of what part the drone’s owner played in the events that caused the injury. This would leave open many questions concerning fault, but would provide an efficient road to compensation of persons injured by a drone.

On the other hand, courts may stick to general negligence principals that would require the injured party to show that the defendant(s) owed a duty of reasonable care, breached that duty, and that the breach was causally linked to the injury. This approach would be much better at discovering what went wrong to cause the drone’s failure. However, it would lead to very costly and potentially lengthy litigation, which would involve expert opinions from potentially many different areas of science and engineering in order for an injured party to prove liability.

This approach also may lead to federal preemption issues, especially once the FAA finally develops its own laws to regulate drone use. Courts may also develop some new hybrid to strict liability and negligence that would apply to drones. As one can see, there are many different ways for courts to apply current, and potentially new, legal doctrines to drone injury cases.

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I am grateful to Chris Stevenson for bringing his expertise to Law Tips. Be sure to return next week when he takes the topic of drones and their civil liability further.

If you would like to take advantage of the CLE program including Mr. Stevenson’s complete presentation, sign up for ICLEF’s Invasion of the Drones Video Replay seminars or On Demand Seminar.

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About our Law Tips faculty participant:
Chris Stevenson is an attorney with Wilson Kehoe Winingham, Indianapolis, Indiana. He graduated from the IU Robert H. McKinney School of Law in 2003 and has focused his legal career on helping injured clients. Chris, a graduate of the Purdue University Aviation Flight Technology program, uses his technical and engineering background to focus on the firm’s product liability, aviation, and construction accident caseload.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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