Can Public Safety UAS Pilots be Held Personally Liable? More Than We May Know. Part 1

We Part 107 pilots share some of the same airspace that our manned aircraft brethren do, just closer to the ground. It takes a lot of research, planning and proficiency to conduct safe drone flights; maybe more than our manned flight counterparts do because of our proximity to mother earth.

The rules for manned aircraft pilots are specific, detailed and have been developed over decades of flying. Drone rules are relatively new and still evolving. However, there are a number of issues and areas where we drone pilots part with those in the cockpit. This multipart article will focus on sUAS pilot personal liability along with examples, gotchas and ways to mitigate potential bad outcomes.

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See the entire series, here.

I’ll begin with a few cases to set the stage as to what we drone pilots may encounter.

The first is United States Supreme Court, UNITED STATES v. CAUSBY (1946), No. 630, Argued: May 1, 1946, Decided: May 27, 1946.

The situation was whether Causby’s property was taken within the meaning of the Fifth Amendment (private property shall not be taken for public use without just compensation) by frequent and regular flights of army and navy aircraft flying over his land at low altitudes.

Causby owned a chicken farm near the Greensboro, North Carolina airfield. Various military fighters and bombers, in considerable numbers and rather close together, flew over his property as low as 83 feet above it during takeoffs and landings. At the time safe altitude was 300-500’ during the day, 1000’ at night thus the flights in question were not within the navigable airspace (definition to follow).

As a result of the noise and bright landing lights at night (you can’t make this stuff up), the Causby’s had to give up their chicken business. As many as six to ten of their feathered friends were killed in one day when the birds flew into interior barn walls from fright. Total loss was about 150 chickens thus production fell off. The Causby’s frequently lost sleep (go figure) and the family had become nervous and frightened. The result was the destruction of the use of their property as a commercial chicken farm and loss in property value.

A key component of the case was determining the extent of a landowner’s rights to the airspace above his/her land because the government cannot take private property from a person unless that person actually owns a property interest. The court held that the low altitude flights interfered with Causby’s land use imposing a real property easement and remanded the case to determine just compensation.

At the time, the US, via statute, had complete and exclusive national sovereignty in the air space. They grant any citizen a public right of freedom of transit in air commerce through the navigable air; defined as “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.” The United States concluded that when flights are made within the navigable airspace, without any physical invasion of the property of the landowners, there has been no taking of property. Under common law, a person who owns the soil also owns the space indefinitely upward.

Yet it is obvious that if the landowner is to have full enjoyment of their land, they must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted or fences installed. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. At some point airspace becomes a public highway for flight. Thus the Causby case conceptually divided the sky into two separate domains; public’s right of flight and property altitude belonging to the landowner. Are you beginning to get the picture?

The lesson is that a UAS likely would not be trespassing in an uncongested area at an altitude of 500 feet or higher. Conversely, a UAS will trespass at or very near the surface and additionally at higher altitudes where the landowner can show that the UAS actually interferes with the landowner’s use of real property based upon such factors as the altitude, frequency, and impact of the UAS flights.

Unfortunately, the case law after Causby has struggled to determine the exact extent of those public and private domains. Worse still, UAS does not fit neatly into this case law since they can be much smaller, quieter, and have a smaller impact on the use of the land than manned aircraft. Furthermore, as UAS technology develops and the Federal Aviation Authority promulgates new regulations for UAS flight, we drone pilots may be able to operate safely at altitudes previously unconsidered by the courts. As a result, it cannot be stated with certainty exactly which altitudes a UAS may fly without trespassing on a landowner’s property.

Thus the closer a UAS is to the ground, the more likely it is to trespass on a landowner’s property. The Wisconsin Uniform Aeronautics Act (WUAA), other states may adopt the UAA as well, set out two guide posts for measuring the extent of the rights of the landowner and the public to airspace: 1) the impact on the landowner’s then existing use of the land and enveloping airspace; and (2) the minimum safe flight altitude (which for airplanes is 500 feet in uncongested areas or 1000 feet in a congested area, such as a city). FAA regulations may clarify the second benchmark for UAS in the future, but the first benchmark likely will remain a case-by-case determination for the courts to determine. Doesn’t that make you feel comfortable? FYI. The Court of Claims granted Causby a judgment for the destroyed value of and damage to his property resulting from the taking of an easement over his property by low-flying military aircraft of the United States, but failed to include in its findings of fact a specific description of the nature or duration of the easement. Stay tuned for Part 2.

Robert Zarracina
Flight Ventures Ltd.

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