ASSOCIATION LIABILITY FOR THE USE OF DRONES
Daniel S. Rosenbaum, Managing Shareholder
Spencer Gollahon, Senior Associate
The recreational and commercial use of small, unmanned aircraft or “drones” as they are commonly known, is increasing. This new technology, however, creates risk to homeowner and condominium associations. There are several legal theories upon which the use of a drone could potentially lead to civil liability depending on whether the device is used by an association, by an owner or by a guest authorized to be in the community. An association that uses a drone or allows the use of drones should consider obtaining insurance that covers this liability, including liabilities that can arise from the use of a drone in the common areas.
Civil liability can arise from common law causes of action and state laws, such as invasion of privacy, negligence, nuisance, and trespass. Florida recognizes basic common law causes of action that can result in civil liability of an association. A primary concern from the use of drones in an association is privacy.
Under Florida law, an intrusion, whether physical or electronic, into one’s private residence by another is potentially subject to civil liability for invasion of privacy. This intrusion into an owner’s privacy even at the association’s swimming pool has become more prevalent with the use of drones that are capable of hovering outside windows or above common areas and recording the activities of those present. A drone is defined by Florida’s “Unmanned Aircraft Systems Act” as a powered, aerial vehicle that:
- Does not carry a human operator;
- Uses aerodynamic forces to provide vehicle lift;
- Can fly autonomously or be piloted remotely;
- Can be expendable or recoverable; and
- Can carry a lethal or nonlethal payload.
An “unmanned aircraft system” is both a drone and its associated elements, including communication links and the components used to control the drone which are required for the pilot in command to operate the drone safely and efficiently. The authority to regulate the operation of unmanned aircraft systems is vested in the state except as provided by federal regulations, authorizations, or exemptions.
When a person operates a drone that contains a camera or other imaging device, Florida law specifies that an image taken of a non-consenting person on his or her own property while in a location not ordinarily observable to the public violates the statute. As a result, the owner may pursue civil remedies in court. Florida law also prohibits law enforcement from using drones to gather evidence without a warrant. If the drone is operated by a law enforcement agency in violation of the statute, the injured party may file an action for compensatory damages, obtain injunctive relief to stop further intrusions, get punitive damages and attorney’s fees.
The Federal Aviation Administration categorizes a drone as a “small aircraft”, and therefore, it is governed by FAA regulations which imposes restrictions on the altitude, eligibility, and operation of drones. For example, with a few exceptions, a drone cannot fly below 400 feet, the operator must be at least 16 years old and pass an FAA examination to receive a “pilot” certificate, and the pilot must not operate the drone near an airport, hospital, or other controlled airspace such as a military facility. Drones must remain in the pilot’s line of sight while in flight.
Due to the potential liability presented by drones, community associations, especially condominiums, may wish to restrict owners and their invitees from operating any drones from the community property. However, associations can only regulate the actions of its members, as well as their guests, invitees and tenants. If a third-party from outside the community is operating a drone within the community, any injured parties would have individual rights against the third-party operator. If the association chooses to prohibit the operation of drones by those who can be restricted, it must first evaluate whether the board of directors has sufficient authority to do so or otherwise regulate flying drones within the community under its current or if needed, amended governing documents.
Also, rules regulating the operation of drones should be specific and should require the drone pilot to comply with all licensing and other governmental requirements, as well as provide the association with proof of insurance. Given the complex legal issues and potential liability associations face in dealing with both state and federal laws governing the use of drones, legal counsel should be consulted to draft such rules and regulations, as well as to determine the proper method of implementing restrictions governing the use of drones in the community.