By: Stuart Poage and Caryn Bellus
Published as part of West Coast Casualty Construction Seminar materials, May 2017
If you have a male child between the ages of 8 and 14, then you know that some of the coolest toys around these days are “drones,” the remote control flying spaceships hovering around neighborhoods and soccer fields. Combine these flying toys with a GoPro camera and you are ready to produce high definition adventure films comparable to any X-Games performance. But are these toys more than just…well… toys? Absolutely!
Drones are becoming commonplace in industries ranging from video production to sports marketing, future retail delivery, and even law enforcement. But what are drones and what are some of the advantages and disadvantages of using them on a daily basis in these and other industries?
Technically speaking, a “drone” is an “Unmanned Aircraft System (“UAS”)” or “Unmanned Aerial Vehicle (“UAV).” Despite their consumer-friendly relatively small size, they are actually classified by the Federal Aviation Administration (FAA) as aircraft and subject to strict licensing and regulation unless certain exemptions apply.
In August 2016, the FAA in conjunction with the U.S. Department of Transportation issued the Small Unmanned Aircraft System Rule Part 107 of the Federal Aviation Regulations. “Rule 107,” as it has become known, provides the first comprehensive guidelines for ownership and commercial use of an UAS weighing under fifty-five pounds. The major key points to Rule 107 include:
- The commercial operation of the UAS must only take place within the visual site line of the licensed operators.
- Operations must take place during daylight hours or during hours of civil twilight (immediately before sunrise and sunset). i.e., nighttime commercial use is prohibited.
- Drones weighing between .55 pounds and 55 pounds must be registered with the FAA.
- An individual must be at least thirteen years old to register an UAS or, if he or she is under thirteen, a parent may assume liability and register the drone for their child.
- Commercial flights are permitted near “non-participating” or adjacent structures, but such flights are not to be conducted directly over “non-participating” people.
- If the flight is to take place over an area of controlled airspace, the drone operator must first obtain air traffic control permission before proceeding.
- Drone operators must be certified by taking and passing a written test.
One of the largest, and exponentially growing, industrial uses for these small and mighty machines is found in the worldwide construction industry. Whether it involves the construction of a single residence, commercial high-rise, or roadway expansion, drones now provide an economical solution to help reduce employee injuries and lower risks associated with subsequent construction defect, property damage, and personal injury claims. Mobility and portability are two of their greatest attributes.
Today, construction companies are using drones to perform routine unmanned aerial reconnaissance of their proposed, current, and even completed construction projects. Overall, the practice avoids placing human workers in unnecessarily dangerous positions, minimizes costs, and creates objective records of the project for use by the company decision makers and by other third-parties at a later time.
Virtually all commercial drones and their cameras can be paired with a computer, tablet, or other device. The development of these small, affordable high-definition cameras and scanners have increased the availability and use of these technology driven ideas. These cameras can record video as well as still photography for use in multiple applications. Thermal scanners can be used to measure moisture content. Geographic scanners can be used to map specific topography with extreme GPS-based precision. Gone are the days of requiring a helicopter or expensive crane/lift rental to perform necessary aerial or above-ground inspections.
The attached cameras and scanners work in symbiotic conjunction with the drone unit and either provide real-time live feeds of their operations or scan and record pre-set coverage of a particular area. The flights themselves are either controlled by a licensed “pilot” using a handheld remote-control until, or by a computer utilizing pre-set coordinates to create a designated flight pattern. This practice, known as “3D scene mapping” uses specialized photo techniques to create a point cloud from an aerial perspective. The more points obtained during the flight, the higher the quality of the resulting video. Much like its ground-based companion, the 3D Scanner, the millions of points obtained from the drone’s airborne camera are then overlapped with each other to make sure that every angle, every component, and every object are recorded in their exact position at a given place and time. When used with corresponding computer software, the user can change perspective, measure distances, and examine potential risks of the construction site at any time.
As early as the pre-construction and underwriting stage of the proposed construction project, recorded photographs and video can be produced to detail the environment and potential risks associated with a particular construction project. For example, the anticipated repair/construction of an eroded coastline or mountain roadway can be obtained in the early stages of design and even used as part of the bidding process by potential subcontractors. This allows risks associated with the terrain, environmental considerations, and even common weather events for a particular area to be assessed before a single piece of equipment or worker is assigned to the project. In certain circumstances, prospective liability carriers can assess the photos and video to ensure that such projects are within their means and that adequate protection is in place should something go awry. In other situations, a company’s use of pre-emptive and ongoing drone footage could impact certain underwriting risks thereby lowering potential insurance premiums.
During construction, daily or weekly video can be obtained and easily downloaded for future reference. In fact, many of the leading construction companies nationwide have made drone use part of their traditional old-school business practices.
Much like the routine Monday morning toolbox safety meetings, a regularly scheduled drone flight and project recording is now becoming commonplace. Imagine a commercial high-rise project where high definition video is obtained and stored each week depicting the status of the construction, the installation of steel beams, wooden frames, windows, components like HVAC and exterior cladding details, or even thermo graphic moisture readings. For roadway projects, imagine being able to see changing details such as specific areas of lane closures, the existence and placement of necessary warning signs, and deployment of industrial equipment to specific areas of the jobsite.
While use of the drone photos and video are certainly helpful during construction, one of the best benefits of this technology may arise months or even years after the project’s completion. It is at that later time that most issues regarding a construction project are litigated. However, the common practice in litigation is for all of the parties (usually a litany of developers, contractors, and subcontractors) to exchange piles and piles of paper documentation (or their electronically saved counterparts) to recreate the project and attempt to assess what (a) was actually done and (b) what probably should have been done.
However, in conjunction with the paper documents, imagine being able to watch videos or examine quality detailed photographs and scans of the actual conditions present at any time during the construction project. How many litigation cases could have either been easily resolved, or perhaps avoided altogether, if it could have been shown what components were installed at which location at a given point in time? In roadway projects, questions like “What lane markings were there?” and “How many warning signs were present?” could avoid liability completely or at least shift some of the liability to other parties. These recordings become part of the project file and are susceptible to discovery requests. Accordingly, company employees should be cognizant of verbal or even visual commentary that may become part of any video or photograph.
Thus, the construction industry is changing not only in the use of products and the means of construction, but also in the methods in which the projects are designed, monitored, examined, and litigated. The use of Unmanned Aircraft Systems, i.e., drones, is certainly a large and ever increasing component of the changing construction industry landscape. Companies, including both the contractors and their respective liability carriers that utilize and master this expanding technology, can likely create economic advantages over their less tech-savvy competitors.
 While Amazon is attempting to perfect its retail drone delivery service, North Dakota rancher Rodney Brossart was recently sentenced to a three-year prison term for his involvement in an armed standoff with law enforcement following an alleged cattle theft. His conviction was based, in part, on footage obtained from a military style Predator drone utilized by the U.S. Border Patrol assisting in the investigation. He is the first American to be arrested with the use of a drone. See, State of North Dakota v. Rodney Brossart, 32-2011-CR-00049,00071, Nelson County Northeast Judicial District.
 Drone Operation and Certification Regulations – 14 CFR 107
 The registration is an easy process that can be completed on-line and requires a five-dollar ($5.00) processing fee. The designated registration number must be applied to the drone itself for easy identification and assessment of liability for any damage.
 This raises an interesting question about use over roadway or other projects where pedestrians may be present, but have nothing to do with the subject construction project or its inspection. Non-participating individuals in vehicles or underneath covered structures are exempted from this requirement.
 Prices for small, camera inclusive recreational drones can start as low as $100. High quality drones used for commercial applications with interchangeable camera mounts and stability control features being used by today’s construction and engineering professionals typically fall within the $1,500-$3,000 price range with much higher prices required for more complex devices.
 See, Rule 34, Fed. R. Civ. Pro., Rules 401 & 402, Fed. R. of Evid., and respective corresponding state rules.