By Deirdre Sullivan Deirdre Sullivan practices in the legal department of The New York Times Company. The views she expresses here are her own and do not reflect the views of The New York Times Company. Introduction and Scope Any responsible media organization or journalist operating or deploying sensors should consider the risks that their actions pose to other people. Neither regulatory oversight nor journalistic ethics will be able to fully account for human error or bad luck. With an eye to the component elements of a personal injury claim of negligence, there are a few practical steps that can be taken to anticipate and mitigate some of those risks. It is difficult to predict the outcome of any personal injury claim; where the technology is as young as it is here, and the precedents as limited, it is nearly impossible. Personal injury claims are among the most fact-intensive litigations, and, like unhappy families, each claim will be unhappy in its own way. No two are ever alike. The smallest details can be dispositive in a personal injury case, making the outcome completely dependent on case-bycase findings of fact. As a result, especially in personal injury claims, there is limited predictive value in hypothetical fact patterns. Still, hypothetical situations can be more than an academic exercise or a guessing game. If we agree that the law seeks to direct and constrain human actions and social behavior by thinking about the risk drone and sensor journalism pose to
people and property in the context of civil and common law, we can import the social values embodied by hundreds of years of common law to formulate a path forward. Most personal injury claims arise from an action. Sensors, by nature, are often passive devices—the action taken is most typically in the deployment and collection. The largely passive nature of sensors offers few obvious narratives to illustrate the key concepts of a personal injury claim. By contrast, a sensor deployed by a drone offers a practical, active example (i.e., a journalist is operating a drone with a sensor when it falls and strikes someone on the ground, causing physical harm to the person). This section often relies on that example. Keeping this in mind, we will start with a brief survey of the law’s longstanding attempts to manage the risks of things falling out of the sky, followed by a primer on the elements of a negligence claim within personal injury litigation, and end with an overview of some practical considerations for journalists or media organizations planning sensible and effective usage of drones and sensors. The Historical Perspective Drones and sensor journalism may be new, but the law has a long history of extending generous interpretation to the victims of falling things. The Digest of Justinian, a mid-sixth century codification of Roman laws, includes a section on “Those Who Pour or Throw Things Out of Buildings.” It sets out the then-current state of the law: If anything should be thrown out of or poured out from a building onto a place where people commonly pass and repass or stand about, I will grant an action to be brought against whoever lives
there for double the damage caused or done as a result. If it is alleged that a free man was killed by whatever fell, I will grant an action for 50 aurei.1something falls (as opposed to being “poured or thrown”) from above, liability remains because “it is in the public interest that everyone should move about and gather together without fear or danger.” On July 18, 1863, a barrel of flour plummeted from a second story stockroom belonging to Liverpool flour merchant Abel Boadle onto Joseph Byrne, a cork manufacturer who happened to be passing by at precisely the wrong moment. Byrne was incapacitated for weeks, left in a great deal of pain, and ultimately unable to earn a living for many months. Byrne hadn’t seen what had caused the barrel to fall onto his head, and neither had witnesses. He eventually sued Boadle for negligence and prevailed, establishing the important legal precedent of res ipsa loquitur along the way. The phrase—Latin for “the thing itself speaks”—informs the doctrine of negligence law, stating that a breach of duty can be inferred from the very nature of an accident without direct evidence of how a defendant behaved. On December 9, 1979, John Bowen, a 20-year-old from Nashua, N.H., was attending a Jets-Patriots football game in Shea Stadium (ancient history) when he was struck in the head by a “radio controlled model airplane” that was part of the halftime show. He died six days later from brain injury.2later, a $10-million damage suit was filed in Federal District Court in Brooklyn. Named in the suit were the Jets; the Radio Control Association; and Philip Cushman, who designed, built and provided the model airplane. The settlement amount was not disclosed.
Personal Injury and Negligence A personal injury claim against a journalist or a news media organization arising from sensor or drone journalism would most likely assert the tort of negligence.3including negligence, are common law claims. Common law is the law of precedent or custom (as opposed to written statute): A judge’s decision is made based on the holdings of previous cases, reflecting the belief that similar issues should be treated similarly. Through this elegant evolution, common law provides society a set of broadly applicable principles. However, the specific application of those general principles is a messy, fact-intensive, jurisdiction-dependent process. When an objective standard is brought to the chaos and complexity of human behavior, the outcome relies heavily on the finding of fact. Under common law, conduct is negligent if it subjects another to an unreasonable risk of harm arising from one or more particular foreseeable hazards, and a successful claim for negligence must demonstrate that negligent conduct caused the plaintiff damages. Today, most jurisdictions (and the Second Restatement of Torts) organize the requirements for a successful negligence claim into four elements: (1) Duty, (2) Breach of that Duty, (3) Causation, and (4) Damages. A plaintiff must prove all four elements for a claim to succeed.
Duty Put broadly, we all have the legal obligation not to place others in foreseeable risk as a result of our conduct.5Regardless of the jurisdiction or statutory obligation, a journalist operating a drone to deploy a sensor has a duty to those around her to do so in a safe manner that does not present others a foreseeable risk of injury, much as one does when operating a car, driving a delivery truck, or riding a bicycle. The duty of care requires us to mitigate those risks. Breach If our conduct is unreasonable in light of foreseeable risks, we have breached our duty. The court evaluates behavior against the “reasonable person” standard, asking if a “reasonably prudent person” with the same duty would have engaged in the same conduct. Determining what this prudent person might do in a given set of complex circumstances can be difficult. It demands carefully structured reasoning, so much so that it’s spawned its own algebraic equation: B\
6example, the difficulty of operating certain drones in a city might be known, and operating one in the wrong circumstance—perhaps without a GPS fix over an outdoor concert in Central Park—isn’t something the mythical reasonable person would be likely to do. Tweak the facts slightly, however, and the duty might not be breached: Perhaps there is some urgent safety need served that supersedes the known risks. In that case, a reasonable person might see the risk but proceed anyway, and the breach of a general duty of care might not actually have occurred. But if there was another, less risky way to address that need, then the calculus of risk shifts again. Causation In a personal injury claim, the plaintiff must also demonstrate that the injury was caused by the defendant’s negligent conduct: But for the placement of a sensor on the windiest side of a skyscraper, for example, the injury would not have occurred.7damages that were foreseeable and a natural consequence of the negligence. In the case of a sensor falling from the sky, for example, the victim is not likely to have witnessed the defendant’s operation of the device or, by extension, the defendant’s breach of her duty of care. (To the extent that personal injury results from the operation of a drone unseen by the victim, we can turn to the poor immortal Joseph Byrne and the case that established the doctrine of res ipsa loquitur in negligence cases.) Damages Compensation for the injuries caused by negligent conduct is at the heart of any negligence claim—indeed, it is the very purpose of the claim itself. If no physical injury or damage occurred, no damages will be required, and even if all the other elements of a negligence claim are made successfully, the claim will fail.
Practical Considerations Negligence Per Se in an Uncertain Legal Regime For the most part, action in violation of a statute (that is to say, a law), particularly a safety statute (e.g., running a red light or speeding), will conclusively establish negligent conduct. This is called negligence per se. If the placement or operation of a sensor is in violation of a law and injury occurs, the claim will succeed regardless of whether the injured person can show duty or breach. If the action is in violation of a local ordinance or administrative regulation (as opposed to a statute), however, courts are split on whether to find negligence per se or to continue with a full negligence test. Applying the split to the current uncertainty around FAA regulation of U.S. airspace, and the inconsistent laws across states, there is a reasonable chance that merely operating a drone for commercial purposes could establish negligence per se in one jurisdiction but not another, and could theoretically make an operator’s training and certification an important fact—again, in one court but not another. Insurance and Litigation In a personal injury lawsuit, everyone up and down the chain of events should expect to be named in the lawsuit—the journalist in her individual capacity; the drone spotter; the media organization; the manufacturer; and the individual responsible for the maintenance, testing, and calibration of the drone or sensor. Insurance can mitigate exposure to a negligence claim and will probably become a key consideration for any news organization or journalist engaging in sensor journalism, especially where sensors are deployed using drones. In the near term, we can expect insurance companies to enter cautiously into the commercial drone market and explore opportunity with narrowly scoped policies. Premiums for a drone operations policy may be relatively
high until underwriters have data points (in the form of real life examples) to more carefully calibrate the spectrum of risks they would be underwriting. High premiums may present a material barrier to entry for smaller newsgathering organizations and freelancers who are only occasional users. Most large news organizations have a general commercial liability policy that may cover personal injury arising from use or deployment of sensors. However these policies typically contain an aircraft exclusion that would not cover claims arising from employees’ operation of drones. Even corporate- owned aircraft insurance policies are unlikely to address the expected risks presented by drones. Freelance journalists who own and operate their own devices may not be protected by the terms of their engagement and would likely want to get their own insurance, but could again be confronted by high premiums. Even if a commissioning publication indemnifies the freelancer, that indemnity would probably not include damages and liability arising from the freelancer’s negligence. If insurance is prohibitively expensive, or the use of drones is only occasional, organizations and journalist may prefer to outsource exposure—that is, hire a third party to operate a sensor drone. Risk is bought and sold every day in service agreements in the form of indemnification and insurance provisions. If the operation, maintenance, and calibration of drones or sensors force a journalist or organization to confront unwelcome questions of potential negligence, contracting with an experienced and qualified third party willing to provide indemnification (though possibly at a premium) might be a useful alternative to an in-house drones or sensor program.