Drones for commercial and recreational use are becoming increasingly popular today. In this article, we will discuss types of drones, the marketplace for drones, current and proposed regulations, potential risks posed by drone operations, and some solutions.

In April of 2014, when a triathlon in Australia hired a local drone operator to take aerial photographs of their event, competition organizers never expected serious injuries from the UAV. But before long, one of the event’s triathletes was in a nearby hospital, claiming head injuries caused by a drone. Soon, the athlete, the organizers and the cinematographer were arguing over whether or not the drone actually caused the injury—and importantly—who’s responsible when commercial drones hurt people (Fast Company, 2014).

According to the Washington Post, in 2015, a Cessna pilot reported a drone cruising at 1,500 feet in highly restricted airspace over the nation’s capital, forcing the U.S. military to scramble fighter jets as a precaution. In Chicago, United Airlines Flight 970 reported seeing a drone pass by at an altitude of 3,500 feet.

As recently as April 17th of 2016, a British Airways jet heading from Geneva to London was apparently hit by a drone. The plane landed safely at Heathrow Airport. Pilots have reported a surge in close calls with drones: estimated at over 700 incidents in 2015, according to FAA statistics, about triple the number recorded for all of 2014. The agency has acknowledged growing concern about the problem and its inability to do much to tame it* (Washington Post)

Drone incidents causing disruption, conflict and even arrests are occurring in our own backyards.

In 2014, a 32-year- old man was arrested after the police said he shot down his neighbor’s drone in Lower Township, N.J., when it flew over his yard. He was indicted on felony charges and could face 10 years in prison. (From a January 2016 New York Times story)

What is a drone?

According to the Federal Aviation Administration (FAA), a drone is defined as:

  •  A component of an Unmanned Aerial System (UAS)
  • “A device used or intended to be used for flight in the air that has no onboard pilot.”
  • Most commonly used name for an Unmanned Aerial Vehicle (UAV)

What is the current drone marketplace?

In 2015, the estimated cost for all approved platforms was over $10.7M. About 1,018 out of the 1,480 total platforms were manufactured by DJI and worth just over $2M. The U.S. led the way with platform sales over $3.6M for 256 platforms. Canada was just behind the U.S. with platform sales at over $2.5M, with only 35 types of platforms. Prior to last year, data on commercial UAS operations was nonexistent.

What types of drones are in use today?

There are basically two types of drones in use:

Rotary wing – a flying machine that uses lift generated by blades that revolve around a mast, like a helicopter (90% of drones).

Fixed wing – a vehicle capable of flights using wings that generate lift caused by the vehicle’s forward airspeed, like commercial airliners (10% of drones). Radio-controlled hobby aircraft are not considered to be drones and are not within the scope of drone requirements.

What are the current requirements for drone use?

The FAA regulates the National Air Space (NAS) are has regulations currently in effect. They

include:

  •  No person may operate UAVs in the NAS w/o specific authority
  • There are different types of authority based on type of user
  • Drones may be operated no closer than 5 mi. to airports, air traffic
  • There is a model airplane exemption
  • Formal pilot training (with license) is required

What new requirements for drone use are being considered by the FAA?

The FAA Proposed Rule is still under review and it applies to small (<55 lbs.) UAVs. The following rules have been proposed for drone use:

  • Drone flights are limited to:
    • Altitudes <500’ above ground level
    • Visual Line of Sight (VLOS) only
    • Daylight only operations
    • 5 mi. from airports/aircraft
    • 3 nm from stadiums
    • No overflights of crowds
    • Max. speed – 100 mph

There are also some requirements being considered in this rule. There is must be a “pre-flight inspection” of the drone by the operator. While the requirement to have a pilot’s license will be dropped, drone operators must be a “knowledge test, and have a “certificate issued”. In addition, operators must retake the knowledge test every two years. Also important, there is a requirement for the marking of UAVs (similar to other aircraft) with unique identification.

What are the risks posed by drones?

One of the largest concerns with drone usage, as evidenced in the reports above, is interference with commercial airline traffic, in spite of current rules, there have been multiple instances of drones coming too close to planes, particularly during landing/takeoff.

Drones crashing into crowds (overflights are NOT permitted) are a serious concern. Last year, a drone also crashed on the White House lawn, and a shoe- box-sized drone crashed into empty seats and broke apart at a second-round match at the US Open, temporarily halting the tennis tournament.

I made a presentation on Drone Safety at the 2015 Regional ASSE conference on Cape Cod last November. I had a good-sized audience, and one participant had actually been hit by a drone. A company safety director came up to me afterward and mentioned their company had hired a local photographer to take a group photo outside their building. He indicated a drone was used to fly over the gathered employees (again, not allowed under the current rules).

There are definitely privacy concerns with drones, as the story above about the neighbor spying on the 16-year-old sunbather by the pool illustrates.

There are risks from operators losing control of their drones, and also losing the drones from a insured property standpoint. Some new drone models have a built in sensor to return to the operator if they are running out of battery life (average flight time for a drone is 25 minutes). A similar feature allows the drone to “return to home” if it is nearing the outermost part of its range.

There are also concerns that the controls of the drone could be hacked, and someone else could take control of the drone. Related to this, there are terrorism risks should drones be used to deliver a chemical weapon or some other attack on civilian and/or military targets. If a power source other than batteries are used, such as fuel cells, there are potential risks posed in the refueling process.

What are some solutions to risks posed by drones?

Certainly the proposed rules by the FAA, when adopted, will address some of these issues. Commercial insurance for drone operations and the physical drone itself have recently come onto the market. New voluntary standards and also additional research into drone operations should help to prevent injuries and property damage from drones as these mature.

Law firms are now working a both ends of the spectrum of dealing with claims that are coming from drone activity in personal coverages.

One online ad for a law firm seeking plaintiffs says “Drone invasion of privacy laws create a right to bring a civil action against the individual who unlawfully intrudes into your privacy. These kinds of drone spying lawsuits can also be considered intrusion of solitude claims. Depending on your set of case facts, you may be able to recover punitive damages.”

While another law firm, focused on insurance coverage and defense, says: “We predict that – in the near term – insurers will see a significant increase in recreational UAS operators seeking coverage under existing homeowners’ insurance policies. Insurers of UAS operators should familiarize themselves with their policy’s exclusions and see if their policies include an exception from the definition of “aircraft” for any model or hobby machines that fly. They should also evaluate their exclusion for commercial operations and intentional torts – to see if they apply to their insureds’ UAS operations.”

Clearly, staying on top of the changing regulatory environment, as well as evaluating coverages and policies that may in any way relate to the operation of drones, will be essential for both insurers and insureds.