Drones—New Technology Related Litigation for the Next Decade

The Bencher—March/April 2017

By Richard K. Herrmann, Esquire

Since the Rules of Professional Responsibility require me to maintain a current understanding of technology so as to remain competent under Rule 1.1, I concluded that was a sufficient reason to buy myself a drone. After all, someone has to do it; and if I need to spend a little money to keep you all focused on the future of law and technology, that is the least I can do.

I started with a tiny indoor/outdoor drone, the kind you see in the malls being flown around the kiosks during the holidays. Mine is for ages 10 and older. I thought I would master this before moving up. I have had it for two months and hope to get to the 10 year old level before the end of 2017.

While I sit here waiting for the battery to charge, I have been doing some research on the state of the law regarding drones. You would not believe where we are headed. Putting aside the FAA rules and regulations, which are very important but not for this column, the legal issues are fascinating. There have already been injuries and shootings causally related to drones; and lawyer advertising of specialties in drone law is rampant. Let me give you a sense of where we are:

The future of drones. As any industry develops, the anticipated growth gives us a sense as to its significance in society and in the courts. The White House reports “in the next decade, the burgeoning commercial drone industry is projected to generate more than $82 billion for the U.S. economy and, by 2025, could support as many as 100,000 new jobs.” According to a report from the Federal Aviation Administration, sales are expected to grow from 2.5 million drones in 2016 to 7 million in 2020.

Personal Injury. Of course, on the civil side, this is one of the first issues lawyers consider. There have already been a number of drone related personal injuries. For example, in September in Pasadena, California, an 11-month-old infant was struck by shrapnel from a shattered drone as her mother pushed her down the street in a stroller. In Port Huron, Michigan a man fell into a river after a drone he was flying crashed. http://rochester.nydatabases.com/map/domestic-drone-accidents.

Personal injury lawyers from New Hampshire to Florida are beginning their advertising campaigns. “Florida’s new drone law has potential impact on personal injury cases”  http://www.ckfirm.com/Articles/Florida-s-new-drone-law-has-potential-impact-on-personal-injury-cases.shtml. “Drone Laws in New Hampshire”  http://www.bartislaw.com/drone-laws-nh.html.

We have all heard, true or not, that one day our Amazon deliveries will be dropped on our doorstep by drones. What if someone is standing on the doorstep at the time? Just last October, Domino’s delivered its first pizza in New Zealand by drone.

Privacy. Stalking can be an issue whether you are a celebrity or not. Drones are being used in many forms of journalism. In 2015, Florida enacted the Freedom from Unwanted Surveillance Act to prevent the use of a drones for the purposes of taking pictures or video without the private property owner’s written consent.

In 2016, California passed legislation that makes a person liable for the physical invasion of someone’s privacy when that person knowingly enters “into the airspace” above the land of another without permission. This new law is known as the “Paparazzi” law. http://www.criminaldefenselawyer.com/resources/is-it-legal-own-and-fly-a-drone.htm#. Even Bethany Beach, Delaware passed a drone law in June of 2016, due to complaints of UAV’s hovering over sunbathers.

These privacy issues have led to a number of disputes resulting in drones being shot out of the air. This happened recently in southern New Jersey. Of course it is illegal, but some are calling it a trend. The better approach is the one taken by the Netherland police who are training hawks and eagles to take down drones.

It is not clear how far this will go, but it is clear it will not stop. It is only a question of time before we all are faced with our first drone lawsuit. I am in the process of drafting my first set of drone form interrogatories. I will want to know who flew it, how long they flew it, and were they certified.

I don’t know whether this eye opening research has tampered my interest in purchasing a larger drone, but I can tell you I am going to be certain I am insured before I do.

Richard K. Herrmann, Esquire is a partner in the firm of Morris James in Wilmington, Delaware. He is a Master in the Richard K. Herrmann Technology AIC.

© 2017 Richard K. Herrmann, Esq. This article was originally published in the March/April 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.