Can Public Safety UAS Pilots be Held Personally Liable? More Than We May Know. Part 2

During Part 1, I briefly covered the Causby case to help set the stage for situations we drone pilots may confront. Here are two more to consider.

The first is Boggs versus Merideth, United States District Court Western District of Kentucky at Louisville, Civil Action N. 3:16-CV-00006-TBR (W.D. Ky. Mar. 21, 2017)

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See the entire series, here.

This is the case where Merideth downed Boggs’ drone with a shotgun, Boggs wanted payment for his destroyed aircraft. As a side note, you’ve got to wonder why Boggs spent so much money on attorney’s fees versus just buying a new quad.

Paraphrasing, Boggs (plaintiff) sought compensation for his destroyed drone contending that 1) an unmanned aircraft is an aircraft under federal law, 2) an unmanned aircraft operating in Class G airspace is operating in navigable airspace rather than on Merideth’s (defendant) property, 3) the operating of his unmanned aircraft in this manner did not violate Merideth’s reasonable expectation of privacy, and 4) a property owner cannot shoot at an unmanned aircraft operating in navigable airspace. Boggs also brings a claim for trespass to chattels under Kentucky state law, for which he seeks damages in the amount of $1,500.00 (must have been a DJI Phantom of some sort) for the lost aircraft. Boggs makes several arguments, the essence of which is that he was flying his unmanned aircraft in the “sovereign navigable airspace of the United States,” (remember that definition?). Merideth argued that he was simply defending his property against aerial assault (envelope of airspace?). So who gets to rule Federal or State of Kentucky court?

Under Kentucky law, one can establish trespass to chattels (tangible property other than real estate) by showing that another person intentionally dispossessed another of his or her chattel or intentionally used or intermeddled with the chattel of another. And you thought flying was hard?

Sparing you the boring details and countersuits, the court ruled that the FAA was not involved in this case, wrestled with whether any such intrusion was unreasonable or interfered with Merideth’s possession or control of his land and shot down (pun intended) Bogg’s federal airspace claim; holding the case was really a state law claim dressed in federal garb. Merideth prevailed.

Thus it will fall to other courts to decide the critical issue of how far federal jurisdiction extends when it comes to the operation of a UAS. Won’t that just make you sleep better tonight?

The second is an article that appeared in Wisconsin Lawyer, which states, “Don’t be fooled by drones’ size; these tiny aircraft bring with them major legal issues.’ This article addresses the expanding patchwork of municipal, state, and federal laws that has arisen to govern the private use of drones.

Why the concern? In January 2015, a hobbyist accidentally crashed his drone on the front lawn of the White House. In June 2015, four firefighting planes working to contain a California wildfire had to be grounded for several hours because of the danger of collision with a drone being operated in the area in spite of FAA flight restrictions. In August 2015, a drone crashed into several unoccupied stadium seats during the U.S. Open. And in November 2015, a drone flew into the 175-foot-tall Ferris wheel at Pier 57 in Seattle and then tumbled to the ground, crashing through an empty café table at the bottom of the attraction.

In Green Bay Wisconsin, the city adopted an ordinance prohibiting the operation of drones at an altitude less than 400 feet above the designated boundaries of a special event. Thus careless operation of drones risks new legal claims testing current interpretations of trespass and invasion of privacy.

For example, a married couple owned an abandoned quarry near Richfield, WI. They are operating it as a clean landfill with the hope of eventually building homes on the property. In 2015, a neighbor flew his drone over their property and uploaded the video to YouTube so members of a group opposed to the couple’s plans could check on what was happening. The couple reported the incident to the county sheriff who advised that no criminal privacy laws had been violated because no person was present. To date, no civil lawsuit has been filed asserting a violation of privacy rights.

Wisconsin appellate courts have yet to address the invasion of privacy or trespass claims arising out of the operation of drones. Privacy laws focus on the rights of persons to privacy with regard to their physical being, not their real property. Under Wis. Stat. section 995.50(2), invasion of privacy is defined as the “intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass”. An aggrieved person would likely need a court to expansively interpret a right to privacy to include those portions of a person’s property not generally visible.

Trespass is thus a murky concept because the drone operator might never physically enter the property owner’s land. Juries are instructed, “a person who enters or remains upon property in possession of another without express or implied consent is a trespasser.” An operator can argue that in many ways a drone acts similarly to a telescope, which permits a person to view objects from afar. However, a key difference is that a drone may physically cross into another’s real property while still connected to the operator by a live video link on the remote control. Under such circumstances, a court may be persuaded that a drone should be considered an extension of the person operating it, allowing the operator to be held liable for trespass if the drone crosses property lines.

Stay tuned for Part 3.

Robert Zarracina
Flight Ventures Ltd.