Use of Drones on Construction Projects: Legal and Contractual Considerations

Drone Use in Construction

On a construction site, drones can assist with pre-construction site review; aerial surveying and mapping; measurement of excavation depths and material stockpiles; monitoring and documenting jobsite progress; productivity, safety and security; and inspecting work that is difficult or dangerous for human inspectors to reach. Drones provide a bird's eye view of expansive project sites that is not ascertainable from the ground.  Data taken by drones can be used to assist a design team in understanding the project site, orienting structures, and locating utilities.  Drones can also assist owners and contractors in inspecting both long horizontal projects, such as power lines, pipelines, and rail lines, as well as tall vertical structures, such as bridges and high rises.  Contractors and owners can use imagery and data collected by drones over time to visualize progress of work, monitor the location of workers and equipment, and assess and document the impact of weather, force majeure events, or accidents on the job site.

Drone software systems can provide convenient and time saving desk top or mobile device access to job site conditions and help facilitate rapid assessment and response to developments in the field.  In addition to GPS and high resolution cameras, drones can be equipped with advanced technologies, such as LiDAR (remote sensing pulsed laser to detect objects and measure distances), or thermal, moisture, or gas sensors. With the right software, users can integrate imagery and data into CAD, BIM or other 3D models or use drones in conjunction with other tools, such as land based 3-D laser surveying and equipment and inventory tracking devices.  After the construction project is completed, the imagery can be useful to construction counsel in post-project dispute resolution and for owners to promote sales and leasing of the completed project.

While drones have potential to improve efficiency and safety on construction projects, their use is regulated and carries risks both in the use of the drones themselves and compliance risks associated with statutory and regulatory restrictions on the use of drones.  Accordingly, it is important for construction lawyers and project management teams to understand the applicable laws, implement proper operational procedures, negotiate appropriate contractual provisions, and procure appropriate insurance coverage.

Highlights of FAA Regulations

In 2016, the Federal Aviation Administration ("FAA") introduced regulations for the commercial use of small unmanned aircraft systems, 14 C.F.R. Part 107 ("Part 107"), that apply to commercially used unmanned aircraft weighing no more than 55 pounds. Part 107 was developed rather quickly in response to concerns about the burgeoning use of drones and safety issues.  The regulations continue to evolve, so construction lawyers and project participants should check regularly for updated Federal, state, and local regulations.  This section highlights several important provisions of Part 107, which must be followed, though operators may apply to the FAA for waivers of certain provisions.  As a general matter, however, if a contractor or owner is planning to use drones on a project and will need to obtain waivers from the FAA, that process typically takes months.

First, drones must be registered with the FAA and flight operation must be headed by a "remote pilot in command" ("RPIC") who has been issued a remote pilot certificate by the FAA. The controls for the drone may only be operated by the RPIC or a person under the RPIC's direct supervision where the RPIC can immediately re-take the controls. Drones may not be controlled from a moving vehicle, except in sparsely populated areas, and a drone's groundspeed may not exceed 100 mph.  Flight altitude may not exceed 400 feet unless the drone is flying within 400 feet of a structure.  Significantly, drones may not fly over people unless those persons are directly participating in the operation of the drone or are located under a covered structure or vehicle that provides protection.  Thus, unless the FAA grants a waiver, the drone may not fly over project site workers or visitors.

Drone flights may only take place during the day; however, if the drone is equipped with  anti-collision lights, it may also fly during civil twilight.  The RPIC and the person operating the flight controls, or a "visual observer" (if one is used), must maintain an unaided visual line of sight with the drone in order to monitor it and its surrounding air space at all times.  Drones may only be flown when there is at least three miles of visibility from the control station, they must yield right of way to aircraft, and they may not interfere with any operations or air traffic at an airport, heliport, or seaplane port.  Further, the drone operator must avoid prohibited, restricted, and controlled airspaces unless they have permission from Air Traffic Control and/or other controlling agency. Recently, the FAA, in partnership with the drone industry, launched a beta version of the Low Altitude Authorization and Notification Capability System ("LAANC"), a system for obtaining expedited authorization for drone flights in certain controlled airspaces, generally near certain airports.

Additional Legal Considerations

In addition to FAA regulations, construction lawyers and drone users should be alert to common law principals and state and local laws, including those directly regulating drone use, as well as other implicated legal principles such as privacy, trespass and nuisance, intellectual property rights, and potential contractor licensing issues. For example, in California there is an anti-paparazzi statute that, among other things, establishes liability for invasion of privacy when a person knowingly enters or causes another person to enter into another property's airspace without permission in order to capture such images, recordings or impressions of a person engaging in private, personal or familial activity, and the invasion occurs in a manner that is offensive to a reasonable person.

Similar privacy concerns may exist as to workers and visitors to the project site.  While job site cameras are now common-place on construction sites, drones differ in that they do not record activities from a fixed position, and thus may be more vulnerable to an argument of infringement of a reasonable expectation of privacy.  Hence, it is prudent to provide notice and obtain written consent and releases from workers, site visitors and neighbors.  Collective bargaining agreements should also be checked for any restrictions concerning video surveillance of workers.  Cyber security is another concern that should be considered, both from the perspective of the drone's operational controls, and in transferring and securing imagery, data and flight records once they are recorded.

The potential for drone accidents is another risk.  There have been several high profile drone accidents involving construction projects. Indeed, plaintiff lawyers in the Millennium Tower ligation, a case in which the authors are involved, employed drones to document certain conditions only to have a high profile drone accident that narrowly avoided potentially serious consequences. Construction lawyers and project management need to be aware that in the event of an accident involving serious injury to a person, loss of consciousness, or more than $500 damage to property, an accident report must be filed with the FAA. The potential for accidents also raises liability and insurance concerns.  As aircraft accidents are not commonly insured under the typical insurance policies, owners and contractors should consult with their insurance brokers and counsel to obtain proper insurance coverage. 

Equally important is the development of contract language, policies, procedural guidelines, and forms for drone operations.  Here are some ways in which constructions lawyers can assist their clients:  

• Review applicable law and regulations.
• Create/update site visit release forms, employee materials and job site signage to facilitate notice and consent regarding drone flights and imagery.
• Develop procedures for drone accident reporting and response.
• Incorporate provisions for obtaining and preserving drone imagery, data and other records into litigation hold memos, document collection checklists, and discovery requests.
• Develop contract provisions or a drone rider allocating costs of using drone technology and responsibility for complying with applicable laws.  Such provisions might address:
  • Who may use drones at the site and under what conditions?
  • Qualifications and vetting for pilots and drone companies and who contracts with them and coordinates their services.
  • Who oversees drone planning and operations, provides notice to and collect releases from neighbors, workers and site visitors as needed? 
  • Allocation of costs for drone operations, software and data storage.
  • Indemnities and limitations of liability.
  • Insurance requirements.
  • Safety and communication plans and training requirements.
  • Cybersecurity measures.
  •  Intellectual Property rights.
  • Who will process, distribute and store the data, who may access it, by what means, and for what purposes may it be used?
  • Who will keep flight logs and records, for how long, and who can access them?
  • Post-project retention and archiving requirements for imagery, data and records.

Conclusion

Drones have the potential to improve efficiency and safety of construction projects and will be used with increasing frequency in connection with the design and construction of projects as well as proving or disproving claims.  For these reasons, construction lawyers should stay abreast of how drones are being used and regulated so that they can effectively advise clients on appropriate contract provisions on projects using drones and be prepared to use data from drones when disputes arise.