Unauthorized Drone Use on a Construction Site? Think Again!

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Adams and Reese LLP

With all the ups and downs the construction industry faced in 2021, don’t let 2022 start off on an unexpected wrong foot. As unmanned aviation continues to take off, you may have an employee on your site who got a drone for Christmas. Unfortunately, if they decide to take their new hobby to work with them, they could potentially open up a host of liability issues.

In the hands of licensed pilots, drones can significantly reduce project costs, document site conditions, reduce insurance costs for construction defect coverage, and can improve workforce safety. On the other hand, an unlicensed pilot can wreak havoc.

The Cons of Unauthorized Drones on a Construction Site

So how does this happen?  An employee on a project receives a drone, learns to fly, and then decides to test out their new toy on the project site.  Unless that individual has obtained a Remote Pilot Certificate from the FAA, he or she is engaging in an unauthorized commercial use for which the Federal Aviation Authority can levy significant fines on the contractor.  Additionally, the operation of a drone by an unlicensed pilot poses safety risks, some of which may be specifically excluded by insurance coverage procured for the project.  Also, any images taken would not be helpful in gathering site condition data, as the site documentation images would not qualify to testify about the work performed and the accuracy of the images would be susceptible to attack.

While drones have a place in future construction projects and should be considered as a cost and risk-reducing measure, the use of such new technologies must be incorporated into the project specifications, contracts, and safety plans, and all project members should be educated on what can and cannot be done with respect to drone use on the job. 

It is also imperative that if a drone is used on a project, all parties (the Owner, GC, and pertinent subcontractors) are aware of the use, the responsibility for retaining any collected images is clearly delineated, the drone operation and scope of use is memorialized in the contract or as a change order, and the workforce is educated on the use of signs and where the drones can and cannot fly on the project.  A full-scale review of the specifications may be needed. 

The Pros of Authorized Drones on a Project Site

Contractors and other construction industry players who invest in drone technology, and use it correctly under state and federal regulations, can significantly impact the costs, conditions, and timeline of a project. New technology, including drones, always has high front-end costs and time-consuming set up, but they can more than pay for themselves once a program is established.  Project savings can include: avoiding manual laydown inspections of cranes by using drones; or documenting site conditions to prove that a particular contractor did not damage a certain construction line item. For example, a contractor can use drone images to show that concrete floors were properly finished in a large scale warehouse when turned over to the owner, fighting a claim of damage to the floors and proving that the issue occurred after completion of the project. . Additional benefits include potential reduction in insurance premiums, tracking and managing assets and materials, and maintaining site security.

Not all Fun and Games

However, where there is opportunity, there is also the threat of regulation.  While 2021 brought the advent of drone delivery and other major steps in this industry, it is likely that 2022 will bring a flurry of new state and local regulations seeking to address and restrain drone use.  One such potential regulation is Mississippi House Bill 259, an Act to Regulate Use of Drones.  The bill seeks to significantly restrict the locations over which drones may be used to capture images but does not specifically provide for how the permitted images will be maintained, stored, or accessed.  The proposed act also provides for fines and/or imprisonment for violations of the proposed restrictions.  This bill is only the first of many anticipated proposed drone regulations, and the construction and aviation industries should closely monitor how these proposals will restrict acceptable use.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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