Law Tips: Drones – What are the Civil Liability Issues and Questions on the Horizon? Part 2

Welcome back to our Law Tips exploration into Invasion of the Drones with Chris Stevenson, Wilson Kehoe Winingham, Indianapolis, Indiana. Chris raised the following alert last week: “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.” You’ll find the first part of his discussion on the developments surrounding drone activity below. So what’s next? Let’s hear from Chris on property rights and damage:

Property Rights and Damage Related to Drones
Drones also have the potential to impact property law. Two legal theories which potentially could be argued to apply to drone use are nuisance law and trespass law. A nuisance can be either public or private. “A public nuisance is one which affects an entire neighborhood or community, while a private nuisance affects only a single person or a determinate number of people. The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another’s property.” Wernke v. Halas, 600 N.E.2d 117, 120 (Ind. Ct. App.1992).

From public/private nuisances, Indiana law further breaks it down to nuisance per se and nuisance per accidens. Id. “A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist.” Windfall Manufacturing Co. v. Patterson (1897), 148 Ind. 414, 420, 47 N.E. 2, 4. A nuisance per accidens is an activity that is otherwise

lawful, but “produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.” Wendtv. Kerkhof594 N.E.2d 795,797 (Ind. Ct. App. 1992).

Nuisance law has been applied to aircraft in prior cases. In Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570 (Ind. 2007) homeowners near the Indianapolis International Airport brought suit against the Indianapolis Airport Authority raising claims of nuisance related to low flying aircraft and noise. While the nuisance claim was dropped in exchange for a “takings” claim under eminent domain law, Biddle shows that nuisance law principles can be asserted in claims regarding aircraft. Due to potential nuisance issues involving wildlife, the National Parks System has recently passed a ban on the use of drones inside Park property. Thus, drone use is ripe for property nuisance and trespass claims.

One of the key questions related to low flying drone operation is who owns the airspace over one’s property. In United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), the U.S. Sup. Ct found that: “[t]he airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain …. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” The Fed. Claims Court later added the following presumption concerning the property rights associated with airspace. In Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798 (1963), the court articulated a presumption based on navigable airspace boundaries. “When an aircraft flies within the navigable airspace directly above private property, the court presumes there is no taking unless the effect on private property is ‘so severe as to amount to a practical destruction or a substantial impairment of it.” Id. at 801. Indiana follows the Aaron presumption. Biddle, 860 N.E.2d at 580.

The problem with Aaron’s test is that it relies on “navigable airspace” to determine property rights. Currently navigable airspace is defined as airspace above the minimum altitudes of flight … including airspace needed to ensure safety in the takeoff and landing of aircraft. 49 U.S.C. § 40102(a)(32). In most areas the minimum altitude for flight is 500 feet above the ground. Thus, what happens when a drone is hovering only 100 feet above your house, or cuts across your yard at 50 feet to land at a neighbor’s house? Obviously, the current test provided by Aaron is not going to work for drones. What test will evolve to address property right claims of nuisance or trespass of drones will likely depend on what the FAA does to realign “navigable airspace.”

While there are many uncertainties about drones and property rights, one thing is certain, new law will be created to deal with the ever increasing use of drones. As one can see, there are many more questions than answers in trying to envision how the law will adapt to the use of drones in the coming years.

____________________________________________________________________

Thanks again to Chris Stevenson for his insights on this milestone topic. I’m sure we’ll want to ask him back to share his expertise as the law develops further around drones

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.

____________________________________________________________________

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

Posted in Law Tips, News0 Comments

Family Law Case Review: Discord Between Father & Daughter Did Not Rise to the Level of Repudiation

Case: Stanley Kahn v. Beverly (Kahn) Bakera
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Daughter’s strained relationship with Father did not rise to the level of “repudiation” for purposes of excusing Father’s obligation to contribute to Daughter’s college expenses where, despite not speaking with Father for over a year, Daughter sent numerous cards, texts, and emails message to Father, telling him that she loved him, sharing updates about her life, and asking for Father about developments in his life.

FACTS AND PROCEDURAL HISTORY:
Daughter began attending Emory University in 2009. In 2010, Father and Mother divorced. The Decree required Father to pay Daughter’s 2010-11 tuition. An agreed entry in early 2012 extended Father’s college obligations for Daughter through December 31, 2012.

In late 2011, Father and Daughter had a heated dispute which resulted in a lengthy strain on their relationship. They did not speak at all, in person or by phone, for all of 2012. However, there was significant “electronic” communication from Daughter to Father during this period: e-cards, e-mails, and text messages. In those, Daughter told Father that she loved him, missed him, happy birthday, photos of her new apartment, and details of other developments in her life. Daughter also asked Father about his eye surgery, a wedding he had attended, and his new apartment. After the Spring 2012 semester, Father stopped paying for all of Daughter’s post-secondary educational expenses.

Mother subsequently filed a motion for rule to show cause against Father. After a hearing, the trial court found Father to be in contempt, and ordered Father to pay various costs arising from his non-payment of Daughter’s post-secondary expenses. Father appealed.

The Court of Appeals reviewed the history of “repudiation” in the college expense context since the McKay case. Noting that each case should be determined with a fact-sensitive approach, the Court reviewed prior cases which found repudiation, and noted the highly acerbic and bitter attitudes that the children in those cases displayed. By contrast, here, while the relationship between Father and Daughter was clearly very strained, there was frequent, non-acrimonious and positive communication from Daughter to Father throughout the period in question. “Given this evidence, we find that the trial court’s findings amply support the conclusion that the discord that existed between [Daughter] and Father did not rise to the level of repudiation so as to obviate Father’s obligation to pay the expenses specified in the agreed order.”

The trial court’s order on the finding of contempt was affirmed.

To view the text of this opinion in its entirety, click here: Stanley Kahn v. Beverly (Kahn) Baker

_________________________________________________________________________________

James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, Family Law Case Review0 Comments

Live CLE in July!

Estate/Probate Administration 101
6 CLE / 1 E – Wednesday, July 22          9:00 A.M. – 4:30 P.M.
Live In-Person Seminar: ICLEF Conference Center, Indianapolis
Live Group Webcasts: May Oberfell Lorber Law Office, Mishawaka
                                         DeFur Voran Law Office, Muncie
                                         Ice Miller Law Office, Indianapolis
Live Individual Webcast: From your home or office computer

___________________________________________________________

Advanced Issues In Indiana Gaming
A Masters Series Seminar
6 CLE – Thursday & Friday, July 23- 24      

Live In-Person Only Seminar: French Lick Springs Resort & Casino, French Lick

___________________________________________________________

Slip, Trip, Fall & Sue
6 CLE – Friday, July 24          9:00 A.M. – 4:30 P.M.
Live In-Person Seminar: ICLEF Conference Center, Indianapolis
Live Group Webcast: May Oberfell Lorber Law Office, Mishawaka
Live Individual Webcast: From your home or office computer

___________________________________________________________

Trust Accounts Made Easy – Live in 3 Locations!
Merrillville – 3 CLE / 3 E – Tuesday, July 28
Live In-Person Only Seminar: Avalon Manor Conference Center, Merrillville

Indianapolis – 3 CLE / 3 E – Thursday, July 30
Live In-Person Seminar: ICLEF Conference Center, Indianapolis
Live Group Webcast: Ice Miller Law Office, Indianapolis
Live Individual Webcast: From your home or office computer

Evansville – 3 CLE / 3 E – Tuesday, August 25
Live In-Person Only Seminar: Tropicana Hotel, Evansville

___________________________________________________________

Annual DUI Defense Update
6 CLE – Friday, July 31          9:00 A.M. – 4:30 P.M.
Live In-Person Seminar: ICLEF Conference Center, Indianapolis
Live Individual Webcast: From your home or office computer

 

 

 

Posted in Blog, Highlighted Seminars0 Comments

Groundhog Day – Renegotiating Terms

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“We had a deal when we left the room. But after we flew home and sent them the agreement, they admittedly reneged and started renegotiating everything. What should we have done differently?”

Given that legal action on oral deals is notoriously difficult, likely not worth the cost, and will almost certainly prevent possible future deals with that party, this can be a serious problem.

How can you prevent this?

1: Identify “renegotiators” in advance
It’s highly unlikely your counterpart is using this tactic for the first time with you. In fact, he or she has almost certainly done this before multiple times. This means others have experienced this and will surely remember it.

Find them. Do your strategic due diligence by researching your counterparts’ reputations. Then put this information into a database (what I call a Counterpart Intelligence Bank) so you and your colleagues can access it in the future.

Of course, this is easy to recommend but difficult to accomplish. It’s much easier now than ever before, though, with search engines, social media and sites that allow you to mine your networks for this hugely valuable data.

2: Ensure someone in the room has actual authority
Sometimes renegotiators tell you when reneging that they didn’t have the authority to agree in the first place even though they seemingly had it.

You can prevent this problem or smoke it out early by explicitly insisting that your counterpart has someone in the room with authority to make concessions and do the deal. And if they don’t have the authority, then you should only send someone to the negotiation with equivalent limited authority.

Then any deal will be tentative from both sides, and you will substantially reduce the effectiveness of a renegotiation move.

3: Insist on immediately enforceable agreements
Years ago I represented a client in some contentious litigation involving a company and its former employee, who was accused of stealing trade secrets and working for a competitor in violation of his non-compete agreement. Needless to say, the relationship and trust between the parties was irreparably gone.

After a hard fought day long mediation in which we negotiated a resolution to all the issues, everyone was concerned someone would go home, sleep on it, feel like they could have gotten a better deal, and try to renegotiate it.

The mediator’s solution? He asked each lawyer and client to record a statement at the time describing the agreement. He then had this transcribed, while we waited, and had everyone sign the transcription. It was a final, binding legal agreement.

I am not suggesting you do this for every deal. But if you find your counterpart is a “renegotiator” by reputation, do this before you leave the room.

At the least, write down the major agreed upon terms and get everyone to initial them. Written commitments decrease the likelihood parties will renege later.

4: Ensure that renegotiation has a cost
Renegotiators count on their ability to renegotiate with no real negative consequences. Change this. Make sure their possible use of this tactic has negative consequences to their ability to achieve their goals.

How? The mediator above insisted on a provision that if there was any disagreement between the parties as to the terms, he would be the final decision-maker on that issue. And the losing party would pay the winner’s legal costs.

In short, it became super costly to even try to renegotiate – and you would lose anyway.

Another option is to let your counterparts know, before you leave the room, that you consider the agreement morally and legally binding. And tell them that any possible future effort to renegotiate it would be considered a fundamental breach of trust and would result in no deal.

Of course, only state this if it is true and you have strong leverage.

Latz’s Lesson: Renegotiators renege on agreements because it has worked for them in the past. Find this out in advance and protect yourself so it doesn’t work again – this time against you.

______________________________________________________________________

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog0 Comments

Having trouble logging in?Visit our Support section.

Subscribe

Contact Us

ICLEF
230 East Ohio Street
Suite #300
Indianapolis, Indiana 46204
Phone: 317-637-9102
Fax: 317-633-8780
E-mail: iclef@iclef.org