By Jim Sienicki and Ed Hermes, Snell & Wilmer L.L.P.
Unmanned Aerial Vehicles (“UAVs” or “drones”) have made and continue to make their way into the construction industry. Drones now assist project managers, superintendents, and design & construction teams to build maps, 3D models, and collect real-time data about projects to understand what’s happening on the construction site. Aerial insights may improve progress tracking and even catch problems early. Drones provide an effective means to provide a surveillance tool to track productivity, and the aerial capture of data. Drones may also help improve evaluation of a project, project security, and project inspections. This article is a brief look at how drones are being used in the construction industry and related legal issues to consider.
UAVs are rapidly replacing traditional land-surveillance methods. Drones reduce the labor and time involved in producing accurate surveys. Drones may eliminate some of the human error involved in the surveying process and drones may have the ability to capture data in much less time than traditional methods would take.
Communication and Management
Drone technology has allowed instant connectivity and communication on the job site. Drones are being used more and more as a means of maintaining constant contact at worksites. Mounted cameras on drones can provide real-time video footage to facilitate communication and surveillance. Drones allow owners to monitor progress by general contractors and allow general contractors to coordinate with subcontractors. Drones may allow contractors and subcontractors to more efficiently collect and communicate real-time data to prevent or mitigate potential delays. Because many inspections are performed as part of a preprogrammed flight plan, the same flights can be duplicated periodically to monitor the progression or remediation of any event and/or any related consequences.
When it comes to claims of delay, disruption, and inadequate staffing, parties often rely on sign-in logs and daily worksite notes. Then the parties often dispute whether machinery was operational, workers were on site, or whether certain activities of the project on the critical path had been completed by a specific date. Drone footage showing a contractor’s or subcontractor’s staffing, activity, and completion of specific milestones could prove to be definitive evidence when pursuing or defending delay and/or disruption claims in the future.
Showing Job Progress to Owners and General Contractors
General Contractors and subcontractors generally take numerous photos at the jobsite to keep Owners and General Contractors apprised of progress, to make inquiries to design professionals, and to document that work was done correctly and on time. Drone surveillance footage may expedite these processes, and some General Contractors may want to provide Owners or the Owners’ investors with access to see the jobsite via drone footage. Likewise, drone footage could also assist with giving remote owners or investors real time information on the progress of the project.
Risks Associated with Drones
However, not all observers are enthused about the prospect of increased use of drones on construction sites. In a column by attorney Mark A. Dombroff (“Why Contractors Should Nix ‘Casual Use’ of Jobsite Drones”), he notes that a higher volume of drone flights over construction sites inevitably translates into greater risk of accidents and regulatory violations. The industry has already seen at least one crash involving a drone flying over a construction site: In 2018, a survey pilot in the United Kingdom reportedly flew a 3D Robotics Solo drone into a crane. Dombroff opines that other negative events may become more likely as the number of flights increases. “In March, a man in Forest Park, GA, was electrocuted after trying to use a metal pole to dislodge a drone from a tree,” Dombroff cites, as an example. Dombroff further comments that “It is not difficult to imagine a similar tragedy occurring at a construction site where a drone could snag on exposed rebar or end up in some other hazardous spot.”
While direct injury from a lightweight photography drone might seem unlikely, in one case, a bystander at a wedding was partially blinded by a drone. The production company’s insurance carrier rejected the claim, and argued that drones are federally regulated as aircraft, and the policy excluded coverage for aircraft – or aviation-related injuries. A federal judge sided with the insurance carrier late last year.
The Legal Landscape of Drone Use on Construction Projects
In January 2018, U.S. Department of Transportation Secretary Elaine Chao announced that the Federal Aviation Administration (FAA) had received registrations for more than one million drones. Press Release, U.S. Dep’t Transportation, FAA Drone Registry Tops One Million (updated Jan. 10, 2018), available at www.transportation.gov/briefing-room/faa-drone-registry-tops-one-million/.
Currently, the single most controversial regulation governing the operation of a commercial drone is the requirement that the drone must always remain within the visual line of sight of the remote pilot. This means that in the absence of a waiver from the FAA, a drone is very restricted on the distance and topography it can fly. As the FAA collects more data and becomes comfortable with the safeguards and redundant capabilities included in the drone technology, this regulation and others are likely to become more user friendly. In the meantime, in the absence of a waiver, all drone programs must comply with the FAA’s Part 107 regulatory requirements and limitations. 14 C.F.R. Part 107. Decisions to establish a commercial drone program typically involve a business case evaluation that takes into consideration the interests and objectives of the users of the drones as well as the considerations of other functional team members (i.e., technology, legal, insurance, and risk departments). To fly a drone as a commercial pilot in the state of Arizona (i.e. for work/business purposes), you are obligated to follow the requirements of the FAA’s Part 107 Small Drone Rule, which includes passing the FAA’s Aeronautical Knowledge Test to obtain a Remote Pilot Certificate.
Furthermore, Arizona recently passed a law making it a state crime to operate a drone in violation of these FAA regulations. A.R.S. 13-3729. Additionally, Arizona makes it a crime to fly a drone in a way that interferes with a manned aircraft, police operation, or causes the death of a bird (whether intentional or unintentional), or to fly the drone within a horizontal distance of 500 feet or a vertical distance of 250 of a critical facility such as a hospital or school. Furthermore, this statute prevents cities and towns from enacting ordinances that further restrict drone use.
Before the construction industry wholly incorporates drones into its arsenal of services, consideration must be given to some of the existing hurdles and risks that are inhibiting the use of drones and the resulting data. Among other things, the industry’s use of drones likely will require the establishment and implementation of policies and procedures to ensure that information contained in the drone payload or built into the program or recorded by the drone, that may contain proprietary information, is not inadvertently released in a way that violates state or federal privacy laws. Contractors and subcontractors should do all they can to make sure all parties understand that drones should not be flown on site without explicit, written permission and understood terms. All workers at the jobsite need to understand that drones are not just harmless toys – they are in fact regulated by the FAA.
Contractors and subcontractors may want to consider getting assurances in writing from other parties at the site that they will not fly drones on site without a formal agreement. While drones may have many beneficial uses on the worksite, contractors and subcontractors must ensure that they are used in compliance with federal and state law and in a way that maximizes safety and mitigates liability risk.