Magazine article Risk Management

Drone Risks Create New Legal Challenges

Magazine article Risk Management

Drone Risks Create New Legal Challenges

Article excerpt

When the "drone era" began, the conventional wisdom was that drones represented a linear expansion of aviation legal practice and that tried and true principles that had gone in to pursuing or defending aviation claims would translate easily into drone accident litigation. In reality, little was known about what "drone law" would mean. The regulations were a work in progress, the technology was still developing and the application of aviation legal principles to the issues in future drone litigation were a matter of speculation. Much of this remains true, even though the Federal Aviation Administration (FAA) has implemented new regulations and the technology has advanced to the point where a significant increase in commercial use can soon be anticipated. These uncertainties raise significant questions about how a drone claim should be defended.

For example, the first line of defense in most aviation cases is federal preemption--the idea that any state-based claim is preempted by federal regulations. This defense is useful in that showing compliance with federal regulations can be easier than defending against general, less-defined claims under state law. In order for that defense to work, however, one of two things must be true: either the federal government's regulation has to completely cover that particular subject ("occupy the field," as stated in the law) or the state law has to directly conflict with the federal law. The latter is very rare and, based on recent federal decisions, the former is getting harder to rely on, even in conventional aviation cases.

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Moreover, the "field" of drone regulation is also occupied by state and local laws, and the number and scope of those local laws are growing. Thus, the chances of a federal field preemption defense succeeding in a drone case should be considered extremely uncertain, especially since the FAA's current regulations represent a tentative step rather than "occupying the field." In fact, a prior version of the 2016 FAA Authorization Act included a provision that would have led to express federal preemption with regard to drones, but that was dropped before the act became law. That legislative history weighs heavily against a field preemption argument.

In order to better address a drone accident claim, defendants first need to view the drone less as an aircraft and more as a product of emerging technology. Aircraft manufacturing is subject to substantial federal oversight and regulation. …

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