A device that can take aerial photos or video and deliver goods to your door seems pretty cool, right? But buyers beware…that device could land you in hot water.
Recent incidents involving drones raise questions and concerns over the regulation of drones in the United States. In an incident on July 4th in New York City, a drone crashed into a store front causing damage. When it comes to drones, questions arise over what liability the owner has, and whether federal or state law should apply.
Historically, federal law has regulated any aircrafts, as the Federal Aviation Administration (FAA) has exclusive control over airspace. (Drones are here: Regulators trying to keep up with commercial, recreational users, Worcester Telegram & Gazette, July 2, 2017). However, the FAA fails to differentiate between drones and other aircrafts, and states are left to fill in the gaps.
In Massachusetts, as well as other states, liability for drone users is rooted in trespass. Massachusetts law treats as a trespasser anyone who enters onto the land or property of another without permission. The trespass does not need to be committed by a person, and therefore may be committed by an object, such as drones. In Massachusetts, “the defendant…may illegally enter the plaintiff’s property by throwing, propelling, or placing a thing…in the airspace above”. (Massachusetts Superior Court Civil Practice Jury Instructions §24.4). Any time that a drone user flies over a neighbor’s property, they could be liable for trespass. Homeowners are increasingly concerned about invasion of privacy, as they see drones flying close to windows, over skylights, or above their yards.
In 2012, Congress passed the FAA Modernization and Reform Act. Section 336(a) “states that the ‘FAA may not promulgate any rule or regulation regarding a model aircraft’” (Taylor v. Huerta, 856 F.3d 1089 (2017)). However, model aircraft as defined by the act is limited to “unmanned aircraft that is: (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes” (FAA Modernization and Reform Act, §336(c). The court specifically did not address whether the FAA could regulate drones that do not fit this definition.
A recent Kentucky Federal case, Boggs v. Merideth would have clarified whether FAA regulations apply to drone users; however it was dismissed on jurisdictional grounds. A bill entitled the “Drone Federalism Act” was introduced to Congress in May 2017. If passed, the bill would leave regulation of drones up to the states.