Danger from Above: Who’s liable when drones fall from the sky?

The Short Version:

  1. Military drone accidents are disturbingly commonplace, a recent Washington Post article reveals, and this raises concerns that privately-operated drones will pose a similar risk.
  2. Typically, people who misuse drones could be sued for negligence, but this might not be enough, given the dangerous nature of drone technology.
  3. I believe states and courts should consider the use of drones to be an abnormally dangerous activity, meaning that people should be held liable for the harm their drones cause even if they take precautions and even if those who are injured aren’t watching the skies.

The Washington Post has a fascinating and frightening article entitled, When Drones Fall From the Sky. It begins:

More than 400 large U.S. military drones have crashed in major accidents around the world since 2001, a record of calamity that exposes the potential dangers of throwing open American skies to drone traffic.

In addition to reporting on many harrowing stories about near-miss drone crashes, the article also highlights the risks posed by the military’s use of these drones domestically.

However, military drones are not the only ones that fall from the sky, and with the Federal Aviation Administration (FAA) ordered to issue rules enabling increased private drone operation here in the United States by September 2015, the danger of drones falling from the skies should not be easily dismissed because even if a military drone does not crash into your front lawn, the drone piloted by your neighbor or local business very well could.

The Danger of Falling Drones

When you consider that personal and commercial drone usage has only recently started to become prevalent, the number of news stories reporting on privately-operated drones falling from the skies is alarming, to say the least.

Limiting my coverage to drone accidents at sporting events alone confirms that neither fans, nor facilities, or even participants are safe from the potential harm of drone operation. In August 2013, a drone filming the first annual Virginia bull run  crashed into a crowd of spectators, causing several injuries. At another event that same month, a triathlete was injured when a drone filming the race barreled into her. And, just recently, a drone crashed into the roof of the AT&T Stadium in Arlington, Texas.

The danger lurking above has even compelled those on the ground to fight back: the Los Angeles Times reports on an incident where Kings fans celebrating a Stanley Cup victory used shirts and beer cans to knock a drone from the sky and destroy it.

Yet, these fans were not fighting against revolting machines, but rather against the potential harm caused by the misuse and malfunction of these machines. Indeed, drones are growing in popularity and as they become more commonplace so will accidents and damage caused by falling drones. Thus, this raises the question:

How should states and courts deal with injuries caused by drone accidents?

Typically, when a person seeks to recover damages for harm caused by another person, courts weigh whether that other person’s conduct was negligent. In doing so, courts consider whether that person acted in accordance with a duty of care to others, and whether they took adequate safeguards in carrying out their activities.

However, under a negligence standard, people who fly drones may escape liability for the damage caused by their drones simply because drones may fall from the sky for reasons that are unrelated to the operator’s negligence or manufacturing defect. Bad weather, alleged hackers, unexpected engine failures, and even birds may also be responsible for a drone’s crash landing.

In 2008, the Ohio Court of Appeals addressed a case that demonstrates how this problem of no one to blame may leave persons the ground running for cover when in the presence of drones. In that case, Casey Rowe, a member of a club devoted to flying model airplanes, was struck by another member’s model plane after the other member lost control of it. Rowe’s leg was “nearly sever[ed],” and he suffered further injury when the impact from the plane threw him to the ground where his shoulder was impaled on a tent stake. Yet, despite this, Rowe was unable to recover damages for his injuries under a negligence standard because, according to the court:

Rowe acknowledged hearing the warning and acknowledged, as well, observing Striker’s plane as it flew, out of control, until it disappeared over some nearby trees. At this point according to Rowe, he assumed Striker’s plane would crash into the trees and he stopped paying attention to it.

After Striker shouted the appropriate warning, and after Rowe both heard the warning and observed Striker’s plane, any negligence on the part of Striker was absolved, and thereafter, the duty fell upon Rowe to take cautionary measures for the protection of his own safety.

In failing to protect himself after being warned of the potential danger, Rowe’s conduct was negligent and Rowe’s negligence was the proximate cause of his own injuries, or, at the very least, Rowe’s negligence as a cause of his injuries exceeded any negligence on the part of Striker in causing Rowe’s injuries. (emphasis added).

In effect, Rowe could not recover damages for his injuries because he failed to get out of the plane’s way after being told to “watch out.”

An outcome that should not sit well with any readers, this case represents a scenario where, under a negligence standard, a person—by either not paying enough attention to the skies, or by being unable to prove the operator’s fault for the crash—may not be able to recover damage caused by a falling drone.

Yet, all is not lost for tort law as courts could hold drone operators to a different standard.

Strict Liability for Drone Damages

I have suggested before that the danger of crashing and malfunctioning drones could be addressed through a strict liability standard. States could classify drone operation as an “abnormally dangerous activity,” and drone operators could be held strictly liable for any damage they would cause. To put in less-technical terms: this would mean that if somebody flying a drone were to cause harm to a third party, the drone operator could not escape liability by arguing that they had taken reasonable measures to ensure the safety of their drone.

I have not seen much written on whether strict liability for harm caused by drones is a good approach to the hazards they create, but in light of what I have learned about drones since then (and the dumb things I’ve seen people do with drones), I’ve become more and more inclined towards the strict liability approach. The Post article suggests that I might not be the only person who thinks this way:

“Flying is inherently a dangerous activity. You don’t have to look very far, unfortunately, to see examples of that,” said Dyke Weatherington, director of unmanned warfare for the Pentagon.”

I agree.  Drones, by their nature, are dangerous – they fly high above the ground, are often propelled by spinning blades, and are operated by users who may fly them negligently or recklessly. Even if users have experience flying drones and operate them within parameters recommended by the FAA, the drone may still end up falling to the ground due to environmental conditions, equipment malfunctions, or a variety of other factors.

Thus, I think that a strict liability approach is worth considering as the private use of drones becomes increasingly common. While this approach may discourage the use of drones (which may or may not be a good thing), it can also create a demand by consumers for built-in safety features. And if drones do end up becoming as widely used as their proponents suggest, courts may one day conclude that they are no longer deserving of the abnormally-dangerous activity classification.

For now, however, I think that holding drones operators strictly liable for the damage caused by drones is a good approach for courts to take, and judges and lawmakers should give this theory of liability some serious consideration.

Michael Smith | techlawgic

Michael Smith graduated from UCLA School of Law in 2014. He will be working in the field of criminal law in Orange County starting in September. In addition to law and technology, he writes about constitutional law and criminal law. You can find him on Twitter at @msmith750.

1 Comment Leave a reply

  1. bARBARA
    Permalink to comment#

    In August of 2014 I was hit by a drone, similar to the one in the top photo. It caused a brain injury, resulting in my life changing dramatically. I still have extremely poor short term memory, anxiety and panic attacks, poor balance, ringing on my years and a loss of self. The list goes on and on.
    The drone operator was less than 20 feet from me, was engaged in conversation with me. he did not forewarn me and did not help me after I was struck. I was struck hard enough to still have indentation on my skull.
    Do I believe there should be rules and regulations for drome operators? YES!
    Should they be licenced? YES
    Should they be forced to carry


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Danger from Above: Who’s liable when drones fall from the sky? | techlawgic