The draft of the proposed tort law relating to drones, due to be discussed by the Uniform Law Commission (ULC) soon, is out – and drone operators should be paying very close attention.
What is Tort Law, and Who is the ULC?
The definition of “Tort,” according to the Cornell Legal Information Institute, is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability,” and the point of a tort law is “to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts.” That relief, says the Institute, is typically, “damages in the form of monetary compensation.”
The ULC, by their own definition, “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” It is interesting to note that while the ULC claims to be entirely non-partisan, a review of the 15 members of the Committee responsible for the Tort Law Relating to Drones reveals that Gregory McNeal, co-founder of airspace intelligence platform AirMap, is listed only under his Pepperdine University credentials, without mention of his interest in AirMap. McNeal is also listed as one of three American Bar Association Advisors for the Tort Law Relating to Drones. (Update: In comment to DRONELIFE, McNeal maintains that ULC members were aware of his role at AirMap and clarifies that he was not involved in the current draft of the law; and in his role as reporter, was not a voting member of the committee for the prior draft.)
What’s happening right now is that the ULC is proposing a tort law relating to drones, which would give homeowners the right to sue drone operators for flying over their private property under certain conditions.
Background on the Tort Law Relating to Drones
These articles written by Kittyhawk‘s legal expert Andrew Elefant, and published here on DRONELIFE, give a great detailed background on the issue: this analysis of the first draft of the Tort Law, and this analysis of what happened to that first draft.
In short, the first draft of the law drew nearly universal condemnation from the drone industry. According to Elefant’s explanation:
If the draft Act became law, the mere presence of a drone in the airspace up to 200 feet over private property would be, by definition, injuring the landowner and committing aerial trespass. Essentially, the draft Act does not recognize a distinction between a drone which harasses the property owners by hovering feet from a window and a drone, operated by a certificated professional, hovering one foot inside a neighbors property line to snap a photo of an adjacent property.
That draft received many comments from drone industry stakeholders, and failed to pass when the ULC met to discuss it.
The New Draft
If you missed the first link above, the text of the new draft can be downloaded here. This draft will be discussed this month, according to sources. The new draft does attempt to address some of the issues found in the first draft: for example, it creates a more narrow definition of aerial trespass that includes the terms “substantial interference with the use and enjoyment of the property,” and defines “substantial interference.”
The new draft also includes clauses about the accidental or unavoidable landing of a drone on private property, and specifies that landowners must return a drone that lands on their property to the operator.
See additional quoted verbage below.
Next Steps for the Industry
This proposal has such potential to materially impact legitimate drone operation that it behooves drone operators to take the time to educate themselves. Follow the committee here. And stay tuned.
More Quoted Material from the Draft
Definition of “Airspace Intrusions” from the draft:
SECTION 5: AIRSPACE INTRUSIONS.
(a) An aerial trespass occurs when a person intentionally and without consent of the landowner operates an unmanned aircraft in the airspace over the landowner’s property and by so doing causes substantial interference with the use and enjoyment of the property.
(b) The determination of whether an unmanned aircraft’s operation over property has caused substantial interference with the use and enjoyment of property shall be based upon a review of the totality of the circumstances, including:
(1) The amount of time the unmanned aircraft was operated over the landowner’s property;
(2) The altitude at which the unmanned aircraft was operating;
(3) The number of times unmanned aircraft have been operated over the property;
(4) Whether the unmanned aircraft recorded or captured audio, video or photographs while in operation over the property;
(5) Whether the landowner has regularly allowed operation of unmanned aircraft over the property;
(6) Whether the operation of the unmanned aircraft caused physical damage to persons or property;
(7) Whether the operation of the unmanned aircraft caused economic damage;
(8) The time of day the unmanned aircraft was operated over the landowner’s property;
(9) Whether an individual on the land saw or heard the unmanned aircraft while it was over the property; and,
(10) The operator’s purpose in operating the unmanned aircraft over the property.
(c) Repeated or continual operation of an unmanned aircraft over a landowner’s property shall not give rise to prescriptive rights in the airspace
Definition of “Intrusions on Land”:
SECTION 6: INTRUSIONS ON LAND.
(a) Except as provided in subsection (b), a person who, without permission, intentionally lands an unmanned aircraft on the land of another, or who intentionally causes an unmanned aircraft to come into physical contact with a structure, plant life, or individual on the land of another, commits a trespass to land.
(b) A trespass to land does not occur under subsection (a) when:
(1) the unmanned aircraft operator is forced to land the unmanned aircraft because of unexpected circumstances that reasonably justify such a landing; or,
(2) the unmanned aircraft malfunctions or otherwise touches down upon the surface of the land because of weather or other factors beyond the operator’s control.
(c) A person asserting the privileges provided in subsection (b) is liable for any damage caused by the unmanned aircraft’s operation.
(d) Regardless of how an unmanned aircraft came to rest upon the property of another, the owner or operator of the unmanned aircraft has a right to recover the unmanned aircraft upon a request to the owner of such property. A landowner shall not unreasonably refuse a request to return the unmanned aircraft or to permit the unmanned aircraft’s operator to recover the unmanned aircraft from the property.
Definition of “Violations of Privacy”:
SECTION 8: UNMANNED AIRCRAFT AND VIOLATIONS OF PRIVACY.
(a) Privacy related civil actions may be based upon the operation of an unmanned aircraft.
(b) A determination of whether an unmanned aircraft’s operation over property was used to violate a privacy-related right shall be based upon a review of the totality of the circumstances, including:
(1) Whether by hovering or repeated flights the unmanned aircraft was likely to have provided the operator with the opportunity to use the unmanned aircraft to view, listen to, record or capture by camera, microphone or other device, individuals who were present at that place and time; and,
(2) Whether the operator made statements or took other overt actions indicating a desire to use an unmanned aircraft to infringe upon rights of privacy recognized in this state.
Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.
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