KBA Presents – Emerging Technology Series: Drones
We previously wrote about what drones are and how they can injure people. Now we will explore the types of legal claims that may be brought in various kinds of lawsuits.
What Kind of Legal Claims Can the Lawyers at KBA possibly bring in Drones Cases?
When someone or something is hurt by a product, we consider many types of claims. Negligence is one. Product liability is another. Certain cases might involve business torts; competitors may use drones to obtain trade secrets or other proprietary information. Other cases may involve intentional torts like inflection of emotional distress or invasion of privacy. Here’s a deeper dive into some of the kinds of claims that drones can involve.
When drones injure people or things, the lawyers at KBA consider bringing negligence claims. Negligence is basically not doing something a reasonable person would do or doing something a reasonable person would not do, that causes an injury or other damage. There has to be a duty to act or not act, a breach of that duty that causes the injury. Not all mistakes are negligence; the law recognizes our imperfect humanity and allows for a reasonable degree of things just happening, fair mistakes if you will, despite reasonable best efforts. But when it crosses that line, we can assert claims for people injured by drones or other products.
When someone is injured or something damaged by a drone, we also consider product liability claims. The drone may have been defectively designed. For example, its propellers may be sharp and users may be exposed to them without any safeguards to prevent serious injuries.
Additionally, drones may lack sufficient training instructions or warnings, which would give rise to a failure to warn claim. Products come with instructions to teach users how to use the device safely and to convey warnings about risks that can cause injuries. As companies become aware of new risks, they should modify the warnings. When the company learns people are not using the product safely or require additional guidance, they should revise the instructions for use. Sometimes these risks are so serious, they require a post-market recall or notification to users who already purchased the product. We see this all the time in the auto industry and there is no reason drones should not follow the same practices. What makes drones exciting is that the industry parallels others within which the lawyers at KBA have worked for over three decades combined, except this is an emerging industry that brings great promise, but also significant risk.
Design defect and failure to warn cases are very familiar to KBA. The lawyers at KBA bring product liability claims in various kinds of cases, including medical devices; the attorneys at KBA have handled complex cases like this for decades.
Examples of Negligent Conduct
There are several ways a drone manufacturer or distributor can be negligent. Largely, this involves the same claims we already discussed – negligent design defect and negligence failure to warn. A major legal difference is that under the negligence standard, the design defect and/or failure to warn is analyzed by looking at the company’s conduct. By comparison, strict liability design defect claims do not necessitate looking at the company’s conduct. If the product is defective in how it was made or its instructions, the company’s negligence or lack thereof is immaterial.
This is a good synopsis of strict product liability law. The Restatement (2d) of Torts, which is a treatise or book put together summarizing the law by legal experts, Section 402A states:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rules stated in subsection (1) apply although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Various states follow this approach or some modified version of it.
Companies may be negligent by designing a drone that has exposed propellers without any guards to prevent human contact when running at a high speed. They may be negligent for failing to advise users of how much safe space is required to operate the drone safely. Some drones have a very quick liftoff and require a certain height space to be safely operated. Others may be very sensitive to operator controls and therefore make sharp turns and cuts. Many of them are very sophisticated and require training before an operation. If they are sold to the general public without adequate instructions and warnings, companies may be liable.
There is an entire scientific discipline devoted to studying how humans interact with devices and whether instructions and warnings are sufficient in terms of content (the substance of the material) and form (how they are conveyed, font size, placement of warnings, etc.). It is called human factors. In our experience, many companies forgo a human factors analysis and end up with poorly design instructions and warnings that do not achieve their objective.
Inadequate training can be a problem not just for the companies, but users as well. The operator of a drone may be liable too. Drone battles in the air between different users can cause accidents. Other examples of negligent conduct in this context include failing to read the instructions and heed warnings regarding the safe operation of the device. Some users may recklessly or even intentionally fly the drone at or dangerously close to people. Intentional torts usually are not covered by insurance, so users could be personally liable and lose their income or some assets.
We would expect to see a battleground emerge between users and manufacturers with respect to instructions and warnings. We see this with including medical devices all the time. There may be a relationship between the risks presented and the degree of training required, but generally, a company cannot just pass risks off onto the user. We would expect to see some cross-claims between users and companies in these cases.
Some users may employ drones to harass people or invade their privacy. A user might chase someone or otherwise harass them. That conduct could give rise to a number of claims, and if someone is injured during the process, a negligence claim for those injuries could be one such claim.
In sum, drones are an exciting new technology. As Plaintiffs’ lawyers, we use them to take pictures of accident sites. They will increasingly be delivering things to our homes. But with these benefits come risks. We have already seen such incidents, which we will write about during our next session. In the meanwhile, stay safe.