DRONE LITIGATION AND AIRPORT LIABILITY ISSUES Presented By: Robert D. Lee ACI-NA Risk Management Conference January 12, 2018
Explosive Growth in Drone Technology RISE OF THE MACHINES 9 INDUSTRIES USING DRONES TODAY Law Enforcement & Defense Hostage situations, surveillance, bomb threats Rapid Response & Emergency Search and rescue, forest fires Research Scientific and conservation Photography & Film Hobby and artist use News Cover breaking news, disaster, war zones Agriculture Disease and data inspection Energy Oil, pipeline inspection Real Estate & Construction Monitor and inspect Insurance Claims Investigations THE DRONE MARKET $11.3 BILLION in 2013 $140 BILLION in 2020
Current Status of the Law TECHNOLOGY HOSTILITY Enacted Anti-Drone Laws Anti-Drone Legislation FAA regulations - recreational drones Registration for drones between.55 55 pounds FAA Registration numbers linked to owners Penalties for failure to register (criminal/civil) Must fly within visual line of sight Registration requires name, address, email Future of drone law will be dramatically impacted by a catastrophic event State laws follow same format: 1. Law enforcement prohibition 2. Creates private cause of action 3. Prohibition on carrying lethal payloads 4. Armed forces exceptions
How has this Legislation been enforced? Examples: Los Angeles City Ordinances Operating drone too close to airport NFL and Drones California man arrested for flying drone over two NFL Stadiums. Drone Killer case in Kentucky what are the airspace implications?
The Catastrophic Event Scenario: A catastrophic drone accident will expose vulnerabilities for a number of target defendants The lawsuit is already written Recoverability drives exposure Two recent close encounters underscore the risk Liability: Recoverability drives definition of target defendant Operators may not have sufficient insurance or assets Third-party liability and empty chair are key Uncertainties exist with regard to insurance policies and the necessity of specialty insurance Case law not well developed Prevention: How much preventive technology is enough? Risk Management Efficacy of Updating Technology
Complaint Already Written Plaintiff s lawyers are already prepared Anticipating defenses and limiting risks will help prepare likely defendants Much more likely to reach the level of a reportable case = precedent
The Scenario Amateur R&D Gone Awry Enterprising student testing bird watching app With app, drone identifies, photographs, and follows rare birds Drone follows bird toward Sea-Tac runway Both drone and bird sucked into engine of plane that has taken off Staggering loss of life Investigation later confirms a drone flew into the right engine Sea-Tac ground radar detected it but it was mistaken for a bird Investigation: amateur R&D Estate of Jones, et al.
Drafting the Complaint Parties Jurisdiction Causes of Action Damages/Prayer for Relief
Potential Parties Operator Airports Manufacturers Software developers Sellers Others?
Jurisdiction Or, How can I get my case in to Cook County without getting sanctioned? Boeing Likely FNC Pros and Cons to stretching jurisdictional arguments Anyway to defeat diversity? Review domicile of passengers Hertz and the situs of various defense corporations
Negligence: Failing to maintain UAS/mechanical failures Failing to account for weather conditions Losing control of or signal to UAS Lack of proper training Violation of FAA regulations (per se) Intentional Torts Trespass Outrage/emotional distress Privacy Assault/Battery Products Liability Design, manufacture, warnings, Risk utility/consumer expectations Preemption? Unlikely
Airport Liability Airports/air traffic duty to communicate with UAS operators or prevent UAS from interfering with other aircraft? Case law not fully developed What would a lawsuit look like? Parallel to bird strike liability: Airports must act with due diligence in adhering to FAA-approved wildlife management plans. Airmap App
Hartman v. United States WILDLIFE & DRONES Wildlife strikes Cessna taking off from airport causing crash Wrongful death lawsuit filed against City of Oklahoma, Oklahoma City Airport Trust and United States Specific duties may include: Being proactive in preventing collisions (e.g., shutting down UAS in airport airspace but impact on other systems?) Management plan/protocol in place to prevent UAS collisions Risk managers should look at their drone prevention plans with the same scrutiny as a lawyer looking for a basis to sue.
Conclusions?
Contact Information Robert D. Lee rlee@cozen.com