Journal Issue Date: Feb. 2020
Journal Name: Vol. 56 No. 2
Drones, or as they are known in most statutes, Unmanned Aerial Systems, are consuming Tennessee’s airspace at a dramatically increasing rate. In October 2019, Federal Express announced that a drone, for the first time, delivered a package to a person’s home in the United States.1 Competitor UPS recently announced that it had delivered prescription drugs to someone’s home, via drone.2
In fact, “[m]any businesses have begun using drones for photography and videography in professions such as real estate, television and movie productions, mineral industry, agricultural industry, and even in search and rescue efforts.”3 One commentator noted that drones can be used for the following tasks:
[B]order surveillance, pipe and power line surveillance, suspect tracking, agricultural applications, traffic monitoring, communications, broadcast news, disaster response, relief, movie production, damage assessment, tunnel investigation, atmospheric weather research, mail, freight transport, critical infrastructure monitoring, flood mapping, damage surveying, real estate mapping, aerial photography, mining, sporting events coverage and wildlife monitoring.4
The Federal Aviation Administration (FAA) lists 1,493,687 drones currently registered in the United States.5 Companies have registered 413,360 drones for commercial purposes.6 By contrast, individuals have registered 1,076,086 recreational drones, and the FAA has certified 157,062 remote pilots.7
Out of all these tasks, the “[g]eneral public risks tend to be the highest with drones operating near or over people. Currently, commercial drone operations cannot be performed directly over people, unless the FAA grants a waiver. Many industries, including construction, view operations over people as an opportunity for progress in the near future.”8
A Kentucky case gives us insight into the issues that can arise through increased drone use. John Boggs sued William Merideth because Merideth shot down Boggs’s drone with a shotgun.9 One commentator described the situation that necessitated this lawsuit as follows:
On a blazing Kentucky summer afternoon in July 2015, William Merideth’s daughter lay outside sunbathing in their backyard whereupon a drone flew overhead. When Merideth discovered this, he grabbed his shotgun and blasted the drone out of the sky. Merideth later told the world, “I didn’t shoot across the road, I didn’t shoot across my neighbor’s fences, I shot directly into the air.” When four men approached Merideth’s home to redress the drone blasting, they observed Merideth open-carrying a Glock pistol, so they turned away instead. Merideth was charged with wanton endangerment and criminal mischief in a Kentucky state court, but the judge later dismissed the case, holding Merideth had a right to shoot the drone in the air.10
One can see this exact scenario unfolding in Tennessee. Additionally,
“[t]here have been a number of incidents taking place at public beaches where drones have reportedly been lurking around unsuspecting sunbathers.”11
These increased intrusions, however, are slowly eroding the property and privacy rights of Tennesseans. In light of this increased traffic, Tennesseans need to understand the implications of drones traveling close to their homes and invading their everyday lives. This article will attempt to provide guidance regarding these issues.
Current Tensions Related to Federal, State and Private Property Owners’ Control
The increased use of drones raises the question of who controls the airspace adjacent to a home. Under the early common law, “any intrusion into the space above another’s land was a trespass whether by the extension of an arm, the growth of a tree, the projection of the eves of a house, or the firing of a gun.”12 With the advent of aircraft, this rule was abandoned.13
One commentator, while discussing the history of aerial property rights, wrote the following:
The Supreme Court rejected the traditional common law doctrine in the case of United States v. Causby, where the Court held that property rights extend only so far as needed for the person to use and enjoy their property. The “enveloping atmosphere rule” announced in Causby established that landowners possess as much of the airspace above their property to which they can reasonably use and an invasion of this airspace is trespass subject to damages. But there is no clear authority as to exactly how far this right extends, creating continued uncertainty regarding low-altitude airspace rights. The Causby Court stated, “the flight of airplanes, which skim the surface [of land] but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it . …
[I]nvasions of it are in the same category as invasions of the surface.” The language of this statement indicates that it would be reasonable to expand the aerial trespass tort doctrine to situations that involve the use of drones.14
Another commentator noted:
Airspace property rights have been relatively free from controversy since the Supreme Court’s decision in Causby, but now that drones are becoming more prevalent, this area is once again becoming an issue. Because it is unclear how far airspace property rights extend, low-altitude airspace — the airspace where drones will be flying — is currently a “property rights ‘no-man’s land.15
Historically, the FAA has, at times, defined navigable airspace as 500 feet and above.16 The FAA has stated that it retains authority for regulating drones in the navigable airspace and that “states can regulate issues such as trespass and privacy.”17 This, however, creates a significant problem because there is no uniform definition of navigable airspace.
As one commentator noted:
According to the Federal Aviation Regulations (FAR), “navigable airspace” refers to “airspace above the minimum altitudes of flight prescribed by [the FAR], including airspace needed to ensure safety in the takeoff and landing of aircraft.” The FAR establish that the minimum safe altitudes are 1,000 feet above the highest obstacle in congested areas and 500 feet above the surface in noncongested areas, but the rules differ for helicopters and powered parachutes, which can fly lower than these minimums under certain circumstances. These rules differ for small drones now as well, because the FAA does not permit them to fly above 400 feet. The FAA has significant discretion in prescribing minimum flight altitudes with regard to the navigable airspace, and they can and will differ depending on the type of aircraft and location. These differing minimum altitudes result in an unclear definition of the navigable airspace, leading to ambiguity surrounding the relative jurisdictions of the FAA and the states.18
The FAA has also proclaimed, at times, that “its jurisdiction is not limited to the minimum safe altitudes and that under the Federal Aviation Regulations, it is responsible for air safety starting at ground level, and it can create regulations that protect people and property located on the ground.”19 As a result, there is an argument that federal law preempts state law from the ground up. If this is the case, it could negate centuries of common law.20 One commentator, discussing the Supreme Court’s Causby opinion, which modified the common law, noted:
[T]he Court relied on the distinction between navigable and non-navigable airspace. Despite regulations for minimum safe altitudes of flight regulations that included take-off and landing, the Court went back to Congress’s definition: “The Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of them — the minimum safe altitudes of flight.” The Court even suggested that regulations allowing too low of a minimum safe altitude would have presented them with a “question of the validity of the regulation.”21
Thus, it appears that the FAA is going beyond the power that Congress granted it by expanding the scope of its authority to regulate the airspace below the navigable airspace. There is also an argument that the Preserving American Freedom Act allows for federal preemption of state drone regulations.22 The cases discussing this issue, however, seem to indicate that trespass liability is preempted by FAA regulations with regard to drones above 500 feet.23
Tennessee’s Reaction to Increased Drone Use
The Tennessee General Assembly has actively attempted to address some of these issues. The Tennessee Code defines a drone as:
[A] powered, aerial vehicle that: (A) Does not carry a human operator and is operated without the possibility of direct human intervention from within or on the aircraft; (B) Uses aerodynamic forces to provide vehicle lift; (C) Can fly autonomously or be piloted remotely; and (D) Can be expendable or recoverable. . . .24
This same part of the Tennessee Code creates strict guidelines related to law enforcement’s use of drones for surveillance, including a cause of action if law enforcement violates these guidelines.25
The Tennessee Code also restricts the use of drone photography related to specific locations and subjects for purposes that are not related to law enforcement.26 The punishment for violating these statutes ranges from a misdemeanor to a felony.27 In another statute, it is a Class C Misdemeanor if a person “[u]ses a drone with the intent to conduct video surveillance of private citizens who are lawfully hunting or fishing without obtaining the written consent of the persons being surveilled prior to conducting the surveillance.”28 It is also a crime for someone to use a drone to spy on an individual in a place where the individual has a reasonable expectation of privacy.29 While these statutes explicitly apply to drones, there are other statutes, which are several decades old that can implicate drone use in Tennessee.
In 1923, the General Assembly, in response to the increased usage of aircraft, enacted statutes regulating aviation within Tennessee. These statutes defined aircraft as “balloon, airplane, hydroplane, and every other vehicle used for navigation through the air.”30 At first glance, one would not believe that these statutes apply to drone use because one would not usually consider a drone to be a vehicle used for navigation. As discussed above, the Tennessee Code defines a drone as “a powered, aerial vehicle.”31 Additionally, another section of the Tennessee Code defines a “vehicle” as “every device in, upon, or by which any person or property is or may be transported.”32 Thus, it appears that a drone is considered a vehicle by the Tennessee Code, and these early 20th century statutes might apply to drone use.
Assuming that Title 42 Chapter 1 of the Tennessee Code applies to drones, one can see the implications immediately. For example, Tenn. Code Ann. § 42-1-104 provides:
(a) Flight in aircraft over the lands and waters of this state is lawful unless at such a low altitude as to interfere with the existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
(b) The landing of an aircraft on the lands or waters of another person, without that person’s consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the aeronaut shall be liable, as provided in § 42-1-105.33
Thus, it appears that the legislature has created statutory causes of action at the beginning of the 20th century that could implicate the use of drones in Tennessee today.
Furthermore, Tenn. Code Ann. § 42-1-105 provides:
(a) As used in this section, “owner” includes a person having full title to the aircraft or operating it through servants, and also includes a bona fide lessee or bailee of the aircraft, whether gratuitously or for hire. “Owner” does not include a bona fide bailor or lessor of the aircraft, whether gratuitously or for hire, or a mortgagee, conditional seller, trustee for creditors of the aircraft or other person having a security title only, nor shall the owner of the aircraft be liable when the pilot thereof is in possession thereof as a result of theft or felonious conversion.
(b) The owner and pilot, or either of them, of every aircraft that is operated over lands or waters of this state shall be liable for injuries or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any objects therefrom in accordance with the rules of law applicable to torts in this state.
(c) The person in whose name an aircraft is registered with the United States department of commerce or the Tennessee department of transportation shall be prima facie the owner of the aircraft within the meaning of this section.34
These statutes also create a potential crime for operators of drones by providing, “[a]ny aeronaut or passenger who, while in flight over a thickly inhabited area or over a public gathering within this state, drops any object except loose water or loose sand ballast, commits a Class B misdemeanor.”35 As drones become more prevalent, increase in size, and their tasks become more complex, plaintiffs might turn to these older statutes to remedy problems not foreseen when the General Assembly passed these statutes. It, however, remains unknown whether these statutes provide a remedy in addition to those remedies the common law provides.
Remedies Under the Common Law for Land Owners
Tennessee common law provides that “a defendant is subject to liability for trespass if he intentionally enters land in the possession of the plaintiff or causes a thing to do so.”36 Thus, if a drone operator intentionally sends his drone over the land of another, the operator can be liable to the possessor of the property. This, however, raises a few questions. At what altitude would the drone have to be flying to constitute a trespass? The Restatement (Second) of Torts provides that a trespass above someone’s land occurs when the aircraft “enters into the immediate reaches of the air space next to the land [and] substantially interferes with the other’s use and enjoyment of his land.”37 Therefore, a drone operator, according to this persuasive authority, can send a drone over another’s property without trespassing as long as the drone stays clear of the “immediate reaches of the airspace next to the land.”38 What damages can the property owner recover for an aerial trespass? Can the property owner abate the trespass using self-help? Unfortunately, no Tennessee case answers these questions.
Another tort similar to trespass to land, nuisance, might be more useful in dealing with this modern problem. While discussing a cause of action for a private nuisance, the Tennessee Supreme Court wrote the following:
Tennessee courts have defined a private nuisance as “anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable ... [and] extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.”
Depending on the surroundings, activities that constitute a nuisance in one context may not constitute a nuisance in another. Whether a particular activity or use of property amounts to an unreasonable invasion of another’s legally protectable interests depends on the circumstances of each case, such as the character of the surroundings, the nature, utility, and social value of the use, and the nature and extent of the harm involved.39
Stated another way, “[s]o ‘long as the interference is substantial and unreasonable, such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.’ Thus, nuisance does not describe a defendant’s conduct, but a type of harm suffered by the plaintiff.”40 A plaintiff who succeeds on a claim for private nuisance may receive injunctive relief and “damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property.”41
Another potential lawsuit for anyone being harassed by a drone operator is intrusion upon seclusion. In order to succeed on this cause of action, a plaintiff must show the following:
“[The defendant] intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” No especial publicity needs to be given to the plaintiff or to the plaintiff’s affairs, and a cause of action may be stated where the plaintiff shows an intentional, and objectively offensive, interference with his or her interest in solitude or seclusion.42
Based on this test, it appears that Tennessee would allow a person to sue a drone operator who uses his or her drone to invade peoples’ private moments around their property. There is some authority from other jurisdictions, however, that persistent recording or repeated tracking of a person with a drone in public can constitute the tort of intrusion upon seclusion.43
It should also not be forgotten that a drone operator will also be responsible under the common law for his or her negligence that causes damage or injuries to another.44
By the time a plaintiff gets a civil judgment, however, any photographs or video taken by the drone may already be made public. This incentivizes a property owner to use self-help. In Lane v. W. J. Curry & Sons, the Tennessee Supreme Court determined that “[an] adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.”45
At least in the context of encroaching vegetation, a property owner can use self-help to remedy a trespass that does not constitute a nuisance. With regard to abating a nuisance, the Tennessee Supreme Court has long held that “an individual citizen may abate a private nuisance injurious to him when he could also bring an action; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing.”46 The court, however, cautioned that self-help should be used with great care in order to avoid any excess or a breach of the peace.47 In fact, one commentator has opined that shooting a drone might not only be a violation of local ordinances, but it might be a violation of the Aircraft Sabotage Act, which would constitute a felony under federal law.48
In conclusion, attorneys should look to a combination of solutions for issues raised by drone use in the common law, state statutes and federal statutes. Additionally, they should keep current on these ever-changing issues of federal preemption, and regulation by the FAA in this area.
James L. Cresswell Jr. is a member in the Memphis office of Petkoff & Feigelson PLLC, a law firm practicing throughout Arkansas, Mississippi and Tennessee. Cresswell primarily practices civil litigation including aviation matters. He has successfully defended airports, airlines, corporations and insurance companies in all stages of litigation. Prior to joining Petkoff & Feigelson PLLC, he served as a judicial law clerk for the Mississippi Court of Appeals. A graduate of the University of Mississippi School of Law, he holds his private pilot certificate, and he is the author of “Applying the Discretionary Function Exception to the Waiver of Sovereign Immunity in Airport Litigation,” published in the Southern Methodist University School of Law’s Journal of Air Law and Commerce (2014) and “The Time Has Come to Reconsider Liability in Aerial Application Cases,” published in the Drake Journal of Agricultural Law (2018).
1. “Wing Drone Deliveries Take Flight in First-of-Its-Kind Trial with FedEx” (Oct. 18, 2019), https://about.van.fedex.com/newsroom/wing-drone-deliveries-take-flight-in-first-of-its-kind- trial-with-fedex/
2. Jon Porter, “UPS delivers prescription medications to US homes by drone for the first time” (Nov. 6, 2019, 6:48am EST), https://www.theverge.com/2019/11/6/20951213/ups-drone-
3. Jamie Busby, “Drone Delivery: The Danger of Opening the Air as a Commercial Highway,” 18 Loy. Mar. L.J. 287, 289 (2019).
4. Vivek Sehrawat, “Liability Issue of Domestic Drones,” 35 Santa Clara High Tech. L.J. 110, 114 (2018).
5. UAS by the Numbers, faa.gov, https://www.faa.gov/uas/resources/by_the_numbers/ (Page last modified: Nov. 19, 2019 9:40:12 AM EST).
8. Jennifer Trock, Paul Alpern, Christopher Leuchten, Kevin Grover, “The Use of Unmanned Aircraft Systems in the Construction Industry in the United States and Canada: An Overview of the Applicable Frameworks,” 12 No. 1 Journal of the American College of Construction Lawyers.
9. Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 WL 1088093, at *1 (W.D. Ky. Mar. 21, 2017)
10. William J. Black III, “A No-Drones Home: Solving the Home Airspace Dilemma,” 11 J. Marshall L.J. 1, 23–24 (2018) (footnotes omitted).
11. Jordan M. Cash, “Droning on and on: A Tort Approach to Regulating Hobbyist Drones,” 46 U. Mem. L. Rev. 695, 705 (2016).
12. Reynolds v. Wilson, 67 Pa. D. & C. 286, 290 (Com. Pl. 1949).
14. Cash, supra note 11, at 729.
15. Lane Page, “Drone Trespass and the Line Separating the National Airspace and Private Property,” 86 Geo. Wash. L. Rev. 1152, 1163 (2018).
16. Busby, supra note 6, at 293.
17. Page, supra note 15, at 1160.
18. Page, supra note 15, at 1160–61.
19. Page, supra note 15, at 1161.
20. Page, supra note 15, at 1167.
21. Stephen J. Migala, “UAS: Understanding the Airspace of States,” 82 J. Air L. & Com. 3, 66 (2017).
22. Cash, supra note 11, at 721.
23. Sehrawat, supra note 7, at 123.
24. Tenn. Code Ann. § 39-13-609(b)(1) (2018).
25. Tenn. Code Ann. § 39-13-609(f) (2018).
26. Tenn. Code Ann. § 39-13-902 (2016); Tenn. Code Ann. § 39-13-903 (2019).
27. Tenn. Code Ann. § 39-13-903 (2019).
28. Tenn. Code Ann. § 70-4-302 (2014).
29. Tenn. Code Ann. § 39-13-607 (2014).
30. Tenn. Code Ann. § 42-1-101 (1928) (emphasis added).
31. Tenn. Code Ann. § 39-13-609(a)(1).
32. Tenn. Code Ann. § 55-1-103 (e) (2019) (emphasis added).
33. Tenn. Code Ann. § 42-1-104 (1932).
34. Tenn. Code Ann. § 42-1-105 (1972).
35. Tenn. Code Ann. § 42-1-109 (1989).
36. Holzemer v. City of Memphis, No. 06-2436, 2008 WL 8954888, at *28 (W.D. Tenn. Dec. 31, 2008), aff’d, 621 F.3d 512 (6th Cir. 2010).
37. Restatement (Second) of Torts § 159 (AM. Law INST. 1965).
39. Lane v. W. J. Curry & Sons, 92 S.W.3d 355, 364–65 (Tenn. 2002) (citations omitted).
40. Id. at 365.
42. Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 411 (Tenn. 2002) (citations omitted)
43. Cash, supra note 11, at 727.
44. Sehrawat, supra note 7, at 126.
45. Id. at 364.
46. Walker v. Davis, 139 Tenn. 475, 202 S.W. 78, 79 (1918) (quoting Brown v. Perkins, 78 Mass. 89, 101 (1858)).
48. Sehrawat, supra note 7, at 129.
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