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Drone-Related Liability Exposure Takes Flight

The advent of new technology brings with it new theories of liability and innovation of old liability theories in novel contexts for companies and individuals utilizing that new technology. The increasing use of unmanned aerial vehicles and unmanned aerial systems – collectively, drones – for personal and commercial uses exemplifies this concept. Manufacturers, individual private operators, and commercial enterprises alike face exposure to potentially significant liability relating to the manufacture, use, and operation of drones.

As drone technology has advanced so have the governmental, personal, and commercial applications for which drones are utilized. In addition to governmental use of drones for things like border security and military operations, individuals, for example, may also use drones for sport, photography or personal entertainment. And various companies increasingly rely and/or consider relying on drones for commercial activities like surveillance, infrastructure inspection and survey, product delivery, traffic/activity monitoring, remote site inspections, livestock maintenance, crop surveys, post-loss inspection (e.g., flood or fire damage inspections), and commercial photography. But each of these uses, and the many other innovative ways drones are employed, give rise to potential liability and novel legal issues. Further, perhaps not surprisingly, that potential liability and those novel legal issues may depend, at least in part, on the state in which drones are manufactured or operated; the laws applicable to drone use and associated liability may vary by state, requiring a more focused inquiry for those companies operating in multiple states.

Various law enforcement departments, for example, have used or considered using drones for surveillance of suspects and for property searches. One can readily imagine the utility of such aerial drone technology to search large properties for drug crops, missing persons, suspects or other indicia of criminal activity. But such use naturally generates questions as to the legality or constitutionality of drone use for law enforcement “searches.” Indeed, a number of states have specifically restricted the use of drones by law enforcement without a search warrant (AK, FL, ME, MT, ND, NV, OR, TN, TX, UT, VA, WI). And in the non-law enforcement context, individuals and companies using drones for similar purposes must be cognizant of potential liability for trespassing and invasion of privacy.

The importance of a state-by-state examination of permissible drone use cannot be overstated. Whereas a number of states prohibit the use of drones to capture images of persons or property within certain space limits and/or without the owners’ consent, North Dakota prohibits all private drone use. That is a significant distinction worthy of note. Similarly, some states, like Texas, restrict the use of drones within certain space limits of critical infrastructure facilities and for certain purposes. And many states have yet to adopt specific legislation governing the use of drones for private or commercial purposes.

Separate and apart from drone-specific state law, traditional tort law should also be considered by drone manufacturers and operators. Standard notions of products liability, strict liability, and negligence are all likely equally applicable to drones, creating fertile ground for plaintiffs’ attorneys to pursue litigation for personal injury and property damage proximately caused by drones. Crashes, especially given the complex technology involved and the ability to operate drones beyond line-of-sight of the operator, are, after all, arguably reasonably foreseeable and may proximately cause personal injury and/or property damage. And commercial enterprises operating drones may also have business interruption claims depending on the cause of drone failure or other accident.

Even under circumstances in which a drone operates as designed and does not cause personal injury or property damage, per se, drone operators may still be exposed to liability for potential claims of trespass, nuisance and/or for invasion of privacy. It is not uncommon, after all, for drones to incorporate photographic and/or video recording capabilities. Use of such drones where individuals have a reasonable expectation of privacy may open up additional bases for liability. But the parameters for such liability are not entirely clear (e.g., how many vertical feet above private property are included in the private property owner’s property or curtilage) and may vary by state. In Texas, for example, the Texas Privacy Act provides that an offense is committed when a person uses a drone “with the intent to conduct surveillance on the individual or property captured in the image.” Accordingly, it is important for drone operators to be cognizant of state laws that may be applicable to drones and that likely differ by and between different states.

As more and more individuals and companies incorporate drone technology into their operations, it is reasonable to expect a concomitant rise in litigation asserting claims against manufacturers and operators of drones for resulting damages caused by those drones. With that in mind, it becomes increasingly important for those manufacturers and operators to have a clear understanding of the legal landscape in which they operate.

Important Employee Considerations Upon Termination or Layoff

Even in good economic times, businesses of every size scrutinize their operations and costs, sometimes leading to workforce reductions. With the recent economic downturn, employee reductions and terminations have become even more common. For employees, talk of difficult economic circumstances, downsizing, tough decisions and the like offers little consolation for losing their jobs. Instead, the primary concern is often, “what now?”

Among employees’ many concerns when they are notified of a workforce reduction or that their job is being terminated, there are several important considerations that employees should not overlook.

During Exit Meeting

This is a stressful meeting, likely filled with concern about your future and some measure of disbelief about what’s happening. Since the decision to terminate your employment has already been made, this is not a time to argue about how good an employee you are or how you are better than other employees being retained. Nor is this the time to argue that you are being discriminated against or that the employer is retaliating against you.

How you react during the exit meeting may be important to securing concessions from the employer and/or putting yourself in a better position for a possible lawsuit against the employer. Be polite and respectful. To the extent possible, you should consider obtaining the following from the employer:

  • A statement of the grounds for your termination. When it comes to filing a claim for unemployment benefits and deciding whether to pursue litigation, a stated reason for termination, in writing if possible, can be helpful.
  • A commitment from the employer for a positive or neutral reference. You will likely be on the market for another job. Securing a commitment from the employer to provide at least a neutral reference may be important to your job search.
  • An understanding as to departure mechanics. You should discuss how you will leave the premises, how you will get your personal items, and whether you will be permitted to send a departure email.

Release or Severance Agreement

In conjunction with a termination, it has become increasingly common for employers to require employees to sign a Release or Severance Agreement to obtain any severance from the employer. Gone are the days of gratuitous severance as a reward for an employee’s service. If your employer asks you to sign a release or severance agreement, you should take it seriously and carefully scrutinize its terms and requirements.

  • Review the agreement. Do not feel pressured to immediately review and evaluate it when the employer provides it. Instead, take it home and review the proposed Release or Severance Agreement.
    • Make sure you understand the agreement
    • Make sure the terms are clear and specific
    • Check for deadlines and act promptly
  • Consult an attorney. Even if you have no intention of filing a lawsuit, it’s worth consulting an attorney to ensure the proposed agreement is valid and adequately protects your rights and interests.
    • Consider whether the terms of the agreement are reasonable
    • Verify that your employer is supplying you adequate time to review and consider, as legally required for employees over 40
    • Confirm the agreement is offering you something of value to which you are not already entitled
    • Weigh costs and benefits of waiving rights and potential claims against your employer

General Considerations

When an employee is terminated or laid off, there are a lot of things to consider. One, of course, is future employment. But there are other important issues the employee must consider sooner rather than later, including the following:

  • Applying for unemployment benefits
  • Maintaining insurance coverage with COBRA or other private insurance
  • Scheduling health care appointments before existing employer-sponsored insurance expires
  • Obtaining pay from employer for accrued vacation time
  • Receiving your final paycheck
  • Whether to sign a release or severance agreement
  • Whether to pursue legal action against the employer relating to your termination

Many employers attempt to do right by their employees, even when making termination decisions, and most terminations are not driven by unlawful motives. Nonetheless, employees should diligently protect their rights and make sure that they get what they deserve.

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