Making sure your car is Q-tip-perfectly prepared before the concours judges arrive is stressful enough, but do we now have to watch for debris falling out of the sky? We’re talking about what the FAA calls Unmanned Aircraft Systems, but the rest of us call them drones.
Drones are pretty fantastic devices that hover and fly around in the sky with a camera and capture amazing photographic images and videos. Plus, they are a lot cheaper than helicopters. The high-quality, low-cost imagery is a huge draw. Besides, flying them is fun.
As drone use has proliferated, the risks associated with drones flying over concours sites has become a topic of conversation, leading to questions about who is responsible when the damn things crash on you or your car.
The Federal Aviation Administration regulates drones that weigh 0.55 pounds or more, counting their payloads — batteries, cameras and so on — and prohibits private use of drones that weigh over 55 pounds. A lot of attention was raised when the FAA announced that, beginning in December 2015, all drones had to be registered with the agency. Attesting to the huge and growing popularity of drones, about 300,000 were registered in the first month.
The FAA views drone operators as aviators, with attendant responsibilities. Among the various drone rules are:
- You have to stay under 400 feet in altitude.
- Your drone must always be within direct line of sight of the operator.
- No drone flying within five miles of an airport.
- No flying around people, or stadiums during game days.
- You can’t be reckless.
- No-fly zones are added every day. For example, they include National Parks and all of Washington, D.C.
If you want to go beyond these limitations, you need to get authorization from the FAA to do so.
In addition to the FAA rules, private property owners can exclude you from flying over their property.
Quite a few things can cause a drone to crash. One of the most obvious concerns is flying out of range. The drone is controlled by a wi-fi signal, and the operator loses control when the drone flies too far away from the signal — or if something interferes with the signal.
Manufacturers say that drones that have lost their control signal will automatically shift into hover mode — staying in place while you move closer and re-establish signal contact.
If you don’t reconnect quickly enough, they will “soft land” safely on the ground. Of course, that’s all true if all goes well, but systems fail, and how is a drone supposed to distinguish between green grass and the British Racing Green hood of your D-type Jaguar?
Another concern is running out of battery power. Soft landings are much more difficult in that situation.
There’s a failure called a “fly away.” If the drone’s altitude limiter is turned off, it can fly high enough to get confused by surface characteristics and lose its ground contact. When that happens, the drone can just shoot skyward at full speed.
If the operator is capable and doesn’t panic, control can be re-established without mishap. But if the operator doesn’t know how to handle the situation, and does the wrong thing like shut it down, the drone can crash to earth. Or on you or your car.
As with anything mechanical or electronic, systems can fail. There’s a great drone crash video on YouTube that will give you pause. Four-time champion World Cup skier Marcel Hirscher was skiing in an Alpine slalom race in Italy last December. Drones and still cameras filmed his run. All of a sudden, a professional film drone that was following him malfunctioned and crashed to the ground a few feet behind him, shattering into pieces when it hit the snow. A couple tenths of a second earlier, and it would have hit him in the head.
Then there’s always operator error. It’s hard to imagine all the ways an operator can run a drone into your car — or you. And what are the odds that two drones flying over an expansive five-acre concours site would find a way to crash into each other?
Maybe it’s these risks, or maybe it’s the thought they are being spied upon, but a lot of people just don’t like drones flying overhead. Add in valuable cars, and many concours participants are demanding protection.
Two years ago, the Pebble Beach Concours d’Elegance banned drones. Concours Chairwoman Sandra Button said that they were very concerned about the potential for damage, but even more concerned that drones flying overhead would be a major distraction for spectators.
“The Pebble Beach Concours is all about the best cars in the world, and we didn’t want anything taking the focus away from them,” Button said.
Although the ban was well publicized, Pebble Beach Concours staffers confiscated at least eight drones, returning them to their owners after the concours ended.
But the difficult problem is what to do when a drone is spotted overhead. As drones get larger and more sophisticated, their range increases. The operator may not even be on the concours grounds, so finding the operator can be difficult. The joke is that in Texas, they just shoot them out of the sky. That may work in Texas, but it won’t work so well at Pebble Beach.
McKeel Hagerty, CEO of Hagerty Collector Car Insurance, says they haven’t seen a drone claim yet, “but we have to be conscious about it. It’s bound to happen.”
Hagerty understands the allure of the amazing photography. When he drove the Colorado Grand, drones were used to capture spectacular footage of the participants’ cars, including his, making for a great keepsake video.
So what will happen when that first claim comes?
“We’ll pay the claim without hesitation under the comprehensive coverage,” Hagerty said. “Then we will see if we can get our money back from whoever is responsible.”
Who is liable?
The drone operator, of course, is the likely defendant. The operator is clearly liable if the crash resulted from his negligence — losing sight of the drone, running out of battery, flying out of range, or just lousy driving.
But what is the operator didn’t do anything wrong, but the crash was caused by equipment or software failure? We don’t know the answer to that yet.
If the legal analysis is purely negligence, then there wouldn’t be any liability if the operator didn’t contribute to the failure. But if flying the drone is viewed differently, say as a dangerous activity, the operator might be subject to what is called strict liability — liable for the damage even without fault.
Imagine the legal complexity when the damage is caused by two drones crashing into each other — and then raining debris onto a multimillion-dollar concours car. Will the victim have to prove which drone operator caused the crash in order to recover damages? What are the right-of-way rules in the air to begin with?
Collecting your damages from the operator could be difficult. The operator’s auto insurance policy doesn’t cover drone crashes. A homeowner’s policy might, but it might not. Drone insurance is commercially available, and should fill such gaps, but I doubt most drone operators carry it.
Holding the concours liable can be more difficult. If concours staff are operating the drone, then they are liable the same as any operator. But if a participant or spectator is operating the drone, then you have to find a legal basis to hold them responsible for someone else’s errors.
While we can claim that they shouldn’t allow drone use, it isn’t clear that a court would agree. Drones are becoming a fact of modern life, and it isn’t clear that a court would view flying them as an inherently dangerous activity.
If just allowing their use is not negligence, then you would have to establish that they were negligent in allowing the specific operator to use the drone. That means they had reason to know that the operator was unqualified or the drone was defective. And it’s probably a higher bar if the operator is a commercial operator, as their lack of skill would be much harder to discover.
The future is overhead
They’re selling a lot of drones these days. Like them or not, they are becoming a common fact of modern life, and we are going to have to deal with them. If nothing else, make sure you keep your car fully insured against all perils. ♦
John Draneas is an attorney in Oregon. His comments are general in nature and are not intended to substitute for consultation with an attorney. He can be reached through www.draneaslaw.com.