What will be your liability for drone use?

Drones are coming to construction. They are not legally in use yet, but the U.S. Federal Aviation Authority (FAA) has been moving forward on granting exemptions and there is a collective push from commercial entities to tap into the potential of unmanned aerial vehicles (UAVs).

The hesitancy of the FAA to authorize drone use is based on safety and privacy concerns. Interference with manned aircraft and the dangers to people and property from accidents are primary concerns, but popular opposition to both the noise and the invasion of privacy aspects of drone use are influential in forcing the FAA to proceed cautiously.

The first official exemption to the ban on UAVs was granted to six Hollywood studios to use drones in film production. The FAA has until now not allowed commercial drone use, though it has previously given permission for aerial surveys in Alaska. The National Association of Realtors, which represents over one million real estate professionals, is pushing hard for an exemption. The FAA says it currently has another 40 exemption applications from commercial firms or associations currently under consideration.

In the exemption for the movie industry, the FAA outlines a strict set of safety guidelines. All drone operators must hold private pilot certificates. The drones must only be flown within line of sight. They are subject to inspection before each use. Flying at night is not permitted. And the FAA will outline further rules and requirements by issuing Certificates of Waiver or Authorization.

Certainly, any legal drone use for construction will have similar restrictions. And the entity operating the drone will have to have appropriate controls and insurance coverages.

But what about a design firm involved in drone monitoring of pipeline or highway construction or limited site projects such as buildings or treatment plants? Unless the design firm is either directly or vicariously liable for the actual operation of the UAV, the risk can be limited—but it certainly does not disappear. Obviously, directing the flight of the drone (even if not operating the drone) could result in direct liability for problems ranging from invasion of privacy to collisions.

The greatest source of exposure, however, could be the contractual exposure of the design firm for monitoring or evaluating the live or recorded images produced by the UAV. Design firms must be specific in their contracts as to their scope of responsibilities in any site-monitoring effort. Unless a firm has the necessary staffing and skill set and is being compensated for real-time or other monitoring of the UAV video feed, the firm needs to clearly outline—and usually disclaim—any responsibility to determine if the UAV indicates whether or not the project is being constructed in conformance with the contract documents for the project. The new technology of drone use will not change the legal liability of design firms unless the firms affirmatively take on responsibility or ignore contractual provisions that spread or shift liability to the firm.

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