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.

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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.

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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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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.

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Law Tips: Beware of the Potential for Conflicts of Interest With Your Elder Law Clients, Part 2

Welcome back to Law Tips as two of our Elder Law faculty members hone in on key ethics concerns. Matthew C. Moore, Fechtman & Moore and Allen Reece, Frank & Kraft, both from Indianapolis, have additional insights to share this week on the potential for conflicts of interest in representing the elderly or disabled client. Last week’s discussion of the duties and responsibilities of attorneys in joint and separate representation is below, just in case you missed reading it.

Non-client, Family Member Involvement
In many situations the elder law attorney will likely have a non-client family member who is involved in either the estate planning process, a Medicaid plan, guardianship, or other issue involving their client. In these situations National Academy of Elder Law Attorneys (NAELA) recommend that this person be treated as an unrepresented person, but encourages their involvement in the client representation so long as the attorney determines it is consistent with the client’s wishes and value, and the client consents to their involvement.1

The attorney must be very careful to look for undue influence from these individuals. The attorney should look to see if the client appears to be doing something out of the ordinary or that would provide a bigger benefit to the unrepresented person. If this is the case, the attorney should proactively take steps to assess whether this person is being improperly influenced. The attorney may meet alone with the client and explain his or her concerns, and may discuss the attorney’s concerns with other authorized individuals. The attorney must be careful not to release confidential information during the course of this investigation unless it is specifically authorized.

Representation of a Client Who is a Fiduciary
An attorney may represent a client who is acting as a power of attorney, trustee, guardian or some other fiduciary capacity. The attorney should outline and ensure that the client is aware that the attorney has duties to both the fiduciary and that the attorney is ultimately governed by the known wishes and best interest of the principal.2

This situation is unique in that the attorney may not technically represent the principal but would still owe ethical and legal duties to the principal. Again, it is advisable to address these issues in writing to the client at the initial

stages of the representation. The attorney should advise the fiduciary, that the attorney will not be able to assist them if they take any action which the attorney would determine is detrimental to the principal.3 Further, it would be advisable to inform the client that the attorney may even need to release confidential information in certain circumstances as governed by the Indiana Rules of Professional Conduct

The Role of the Attorney
As the population of Americans over the age of 65 grows the need for elder law attorneys will also grow. Many of our clients will suffer from physical or cognitive impairments, chronic illnesses, and potentially be under the undue influence of someone in their life. Add to this the changing dynamics of our population which provides medical care for these individuals (thus increasing the length of their life), the increasing presence of blended families, and all of the various legal changes that will continue to occur, and it is easy to see that the ethical dilemmas facing lawyers will continue to become more challenging.

The attorney owes the client the professional duties of competence, diligence, loyalty and confidentiality. 4 The Preamble to the Indiana Rules of Professional Conduct, paragraph 1, states that the lawyer is a representative of the client, an officer of the legal system and a public citizen who has a special responsibility for the quality of justice. It is a lawyer’s duty to provide the client with an informed understanding of the client’s legal rights and obligations and explain the practical implications. Id. paragraph 2.

1 National Academy of Elder Law Attorneys (NAELA): Aspirational Standards for the Practice of Elder Law, dated November 1, 2005, pg. 7.
2 Id. at pg. 14.
3 Id.
4 Id. at pg. 7.

Many thanks to Matthew Moore and Allen Reece for their valuable contributions to Law Tips. The seminar that contains the complete presentation by these faculty members as well as other experts in the field is available through our On Demand CLE presentation of the 2014 Elder Law Institute.  You choose the time and place. We will assist you in the easy setup.

Also, remember to mark your calendar for the Live Elder Law Institute on October 15-16, 2015.

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About our Law Tips faculty participants:
Matthew C. Moore, partner, Fechtman Moore, Indianapolis, focuses his practice on estate and trust administration, Medicare set aside issues, Medicaid planning, and estate planning for families with special needs children. He graduated from Franklin College in 2003 with a Bachelors of Arts Degree in Political Science. Then received his Juris Doctorate in 2006 from Indiana University School of Law-Indianapolis.

Allen Reece, Frank & Kraft, P.C., Indianapolis, focuses his practice on the fields of estate and elder law planning. Mr. Reece is a member of the Indiana State Bar Association, including the sections of Elder Law and Probate, Trust, & Real Property; the American Bar Association; the National Academy of Elder Law Attorneys; and the American Academy of Estate Planning Attorneys. He is a frequent speaker at seminars. Allen was formerly Vice President at Deutsche Bank Alex. Brown

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

Law Tips: Is Unpaid Child Support an Asset in the Child’s Subsequent Bankruptcy? Maybe.

There are possibly enormous repercussions for bankruptcy clients from the ruling in Perkinson v. Perkinson, 989 N.E.2d 758 (Ind. 2013) per Tom Yoder, Barrett & McNagny, Fort Wayne. Tom recently raised a red flag concerning this domestic relations case during the 2014 Indiana Law Update. He is generously providing our Law Tips readers with his insights on the issues he sees developing.

In a case of some significance to family law practitioners, the Indiana Supreme Court, in the strongest language possible, declared void as a matter of public policy any agreement between divorced parents excusing the payment of child support in exchange for giving up child visitation time. As Justice David wrote, “It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support.” Yet, that is precisely what happened in this case and, in striking down such agreements, Justice David made clear no court should ever allow it to happen again.

All well and good, but of what bankruptcy relevance is this decision? In the course of its opinion, the Court made the following comments: “Even if it is not in a child’s best interest to visit with a parent, it is still in that child’s best interest to be financially supported by that parent. It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013) citing In re Hambright, 762 N.E.2d 98, 10l(Ind.2002); Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind. Ct. App. 2010), trans. denied. Custodial parents who receive child support funds act as a trustee, and, “as a constructive trustee, [the custodial parent] may not contract away the benefits of the trust.” Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997). To do so would violate the fiduciary duty the custodial parent owes the child in relation to any child support funds.”

In other words, the right to child support, and presumably the right to enforce child support obligations, ultimately belongs to the child, not the custodial parent who acts merely as a “constructive trustee.” Accordingly, neither parent has the right to bargain away the child’s support rights or, in bankruptcy parlance, take the child’s “property.”

Therefore, subject to the applicable statute of limitations, do individuals filing for bankruptcy relief in Indiana now have a duty to list all unpaid child support, even from years past, as assets on their bankruptcy Schedules and in their Statement of Financial Affairs? Do debtors’ counsel now have an affirmative duty to inquire of potential clients whether their parents ever divorced and, if so, were all child support obligations paid? More significantly, may bankruptcy trustees in such cases now bring Adversary Proceedings for turnover against nonpaying parents to recover unpaid child support on behalf of the child’s (now presumably an adult) creditors?

To date, there do not appear to be any reported Indiana bankruptcy decisions on the issue. However, in time, aggressive trustees searching for non-exempt assets from which to pay administrative expenses and unsecured claims are sure to make the effort. Considering the amount of unpaid child support existing at any point in time in Indiana, the amounts in controversy could well be enormous.

Author’s further comment: This is a clear case of Yoder’s Law of Unintended Consequences. I very much doubt Justice David had any idea he might be opening Pandora’s bankruptcy box when he ended the practice of divorced parents entering into child support/visitation exchange agreements. By trying to help children of divorce, he ironically may have inadvertently opened another potential avenue of post-dissolution family discord.   The unanswered question is how far Bankruptcy Courts will be willing to extend this decision to debtor/creditor relations.

We appreciate Tom Yoder’s contributions to ICLEF, both as an ongoing faculty member and a participant in Law Tips. Tom’s comprehensive bankruptcy law presentation is a portion of the 2014 Indiana Law UpdateTM as On Demand Seminars. Are you aware that under the MCLE rule you may take up to 6-hours of your 36-hour requirement by viewing an ICLEF On Demand/Online Seminar?

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About our Law Tips faculty participants:
Thomas P. Yoder is a partner with law firm of Barrett & McNagny LLP in Fort Wayne, Indiana, and concentrates his practice in the areas of business bankruptcy, creditors’ rights and general insolvency matters. He is a Fellow of the American College of Bankruptcy. He has also written and lectured extensively on bankruptcy and  insolvency-related topics and is a co-author of Bankruptcy- A Survival Guide for Lenders (First ed. 1997; Second ed. 2008), published by the American Bankruptcy Institute and winner of the ABI’ s Outstanding Publications Award (1997).

Anne E. Simerman was a co-author of the Indiana Law Update materials used in this article.  She  is a partner with the law firm of Barrett & McNagny LLP, and concentrates her practice in the areas of Commercial and Consumer Finance, Commercial Law and Bankruptcy, as well as general corporate and business law. She is a contributing author to Bankruptcy: A Survival Guide for Lenders, American Bankruptcy Institute, Deborah L. Fletcher and Thomas P. Yoder 1st Ed. (1997). She has contributed to ICLEF’s Annual Update on Bankruptcy and Commercial Law (2003-2013) and numerous other related CLE programs.

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

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