Selected aspects of tort liability for damage caused by unmanned aircraft

1. INTRODUCTION

Unmanned aerial vehicles commonly referred to as drones are a permanent fixture in the 21st century. They enable the streamlining of many needs. Drones make military operations more efficient, enable spraying, are widely used in the advertising industry and even – in the near future – are expected to deliver pizzas. As a result, the number of reports of aviation incidents involving drones is increasing every year. According to the report on the state of civil aviation safety published by the ULC [1], there were 94 aviation incidents involving drones in 2021, although it can be assumed that this figure does not reflect the real scale of the phenomenon. Seemingly insignificant collisions can lead to significant consequences. This is well illustrated by an incident that occurred in 2015 in Hollywood [2], when more than 650 people lost access to electricity after a drone damaged power lines. The incident was caused by the device hitting one of the power lines and, as a result, knocking it to the ground. The aforementioned drone then landed, fuming, in the middle of an intersection, which undoubtedly constituted a traffic safety violation. It is not impossible that such incidents will also occur in other countries. By increasing the risk of drones causing damage, the regulation of tort liability in civil law has taken on new importance.

2. WHEN IS TORT LIABILITY INVOLVED?

Civil law provides for two types of liability: contractual liability and tort liability. Contractual liability relates to the non-performance of obligations under a contract or the improper performance thereof, and applies only to the parties to that contract. Tort liability, on the other hand, results from the performance of a tortious act, referred to as a tort. With this type of liability, it is irrelevant whether the parties had any previous legal relationship or whether they know each other at all. What matters here is the occurrence of damage. What matters is the occurrence of the damage, in which the tortfeasor is the debtor and the injured party is the creditor. A prerequisite for tort liability is the violation of generally applicable rules or rules that apply to a specific group of persons, such as pilots or drivers. Such cases will include destruction of another’s property or bodily harm. Thus, in order for tort liability to arise, it is necessary that damage has occurred, that an event prohibited by law has occurred and that there is a causal link between the damage and the event. It is worth mentioning certain circumstances under which the unlawfulness of an act is excluded, with the result that tort liability will not arise. Part of the doctrine represents the position that unlawfulness is not a prerequisite for strict liability in tort, in which case the occurrence of circumstances excluding unlawfulness does not make the event not subject to tort liability [3]. Such circumstances excluding the wrongfulness of a tort may include:

1. Necessary defence – this is regulated in Article 423 of the Civil Code; it occurs in the case of repelling a direct, actual (the threat must really exist) and unlawful attack on any good of one’s own or of another person;
2. A state of necessity – regulated in Article 424 of the Civil Code; applies to the case of destruction or damage to another’s property or killing or injuring another’s animal in order to avert from oneself or others the danger directly threatening from that property or animal, except in situations where the perpetrator himself caused the danger or it could have been prevented in some other way; it is also necessary that the good being rescued is obviously more important than the good violated;
3. Permitted self-help – regulated in Article 343 § 2 of the Civil Code; it concerns the protection of possession and consists in the holder’s own restoration of possession; it excludes the use of violence against persons;
4. Consent of the victim – this must be informed and voluntary and occur before or at the latest at the time of the wrongful act.

In summary, tort liability can arise in many cases in everyday life, including incidents caused by inattention or insufficient skill in the handling of a device. Examples of such incidents include, for example, ramming someone’s fence or such a drastic accident as an 18-month-old baby’s eyeball being cut by the wing of a drone in the UK. It took place in the garden of the boy’s parents, where a family friend was flying a drone. While attempting to land, the drone became entangled in tree branches and went out of control, causing the child serious injuries.

3. THE REGULATION OF TORT LIABILITY

Polish legislation has not created specific regulations relating to civil liability for damage caused by unmanned aircraft. According to the definition contained in Article 2 of the Aviation Law, ‘an aircraft is a device capable of hovering in the atmosphere due to the action of air other than the action of air reflected from the ground’. – drones are also included within the scope of this definition. In view of this, the grounds for civil liability for damage caused by drones are referred to in Article 206 of the Aviation Law, which provides for a reference in this matter to the regulations contained in the Civil Code on liability for damage caused when using mechanical means of transportation powered by the forces of nature. The grounds for liability in such a situation can therefore be found in Articles 435 and 436 of the Civil Code and in practice are the same as in the case of an incident involving a car or a marine vessel.

In the case of torts, the Civil Code provides for three types of liability – on the grounds of equity, fault and risk. The liability established in Articles 435 and 436 of the Civil Code is strict liability, i.e. objective liability. In order to be held liable, it is therefore sufficient to recognise the behaviour leading to the damage as objectively wrong – it is not important in this aspect whether the action was culpable or not, nor is it necessary to prove the fault of the perpetrator. 

An important proviso is also the prohibition on excluding or limiting in advance liability for damage caused when using mechanical means of transport powered by the forces of nature, as set out in Article 437 of the Civil Code. Thus, it is not possible to specify in advance a proviso that no liability is incurred for the flight that occurs.

4. WHO IS RESPONSIBLE?

Liability for damage caused by the movement of an aircraft is borne by the person operating it, i.e. the person using it at the time when the damage was caused. Thus, we can speak of this in the situation of, for example, damage to a billboard due to the pilot’s inadequate control of it or a more intentional act, such as committing an act of vandalism and making graffiti on a billboard of a well-known celebrity using a drone – which occurred in New York [4].

However, the pilot is not the only person who can be held liable, although the provisions of the Aviation Law regulating the issue of liability for damage caused by the movement of aircraft, in particular the provision of Article 207 of the Aviation Law, should be interpreted taking into account the specifics of unmanned aviation and the regulations relating to it. Indeed, in accordance with the aforementioned provision, the catalogue of potential liability may be broader and includes:

1. a person who has transferred the right to use an aircraft to another person, if that person has retained the right to decide on matters of flight operations;
2. a person who uses the vessel himself or through persons acting for him, even if they have exceeded the authority given to them;
3. a person recorded in the aircraft register as the operator, unless that person proves that another person was using the aircraft at the time;
4. a person unlawfully using the aircraft (jointly and severally liable with him/her are the persons mentioned above, unless the use of the aircraft was without their fault).

There is also provision for joint and several liability of the person at whose fault the damage occurred – he or she is liable together with the above-mentioned entities.

5. CIRCUMSTANCES EXCLUDING LIABILITY

It is worth remembering the possibility of avoiding liability, the so-called exoneration grounds. In the case of tort liability for damage caused when using mechanical means of communication moved by means of forces of nature, there are 3 such prerequisites.  A person driving a drone is liable for causing any damage, apart from the exceptions set out in Article 435 §1 of the Civil Code, i.e. when:

• the occurrence of the damage is due to force majeure – e.g. the drone is rolled away during a sudden and unexpected gust of wind and the UAV damages the roof of the building;
• the occurrence of the damage is solely the fault of the injured party – e.g. throwing objects at a flying drone, as a result of which they are damaged;
• the occurrence of the damage is solely due to the fault of a third party for whom the potential debtor is not responsible – e.g. the creation of obstacles in the flight path by the third party or obstruction of the drone’s control by snatching the control device and the drone causing injury to a passer-by as a result of such behaviour.

6. DRONE COLLISION

The legal situation is different when there is a collision between two drones. The specific regulations contained in the Civil Code provide that in such a case there is liability under the general principles regulated in Article 415 of the Civil Code. The same applies to so-called courtesy carriage (however, in the case of drones, this is more of a future prospect). The difference in these two types of regulation lies primarily in the difference in the type of liability. In the case of a collision, it is shaped on the basis of fault. It is possible to conclude that the perpetrator is at fault if it can be alleged that he or she could have acted lawfully under the circumstances. It is irrelevant here whether the person caused the collision knowingly or through undue care, i.e., for example, through inattention or driving a drone despite being tired enough to be unable to concentrate. However, it is worth mentioning that according to Article 426 of the Civil Code, liability on the basis of fault cannot be incurred by a minor, i.e. under the age of 13 (however, according to the Aviation Law, the minimum age of a person who is a drone pilot is 14). The second condition excluding liability on the basis of fault is insanity, which follows from Article 425 § 1 of the Civil Code.

In the above case, it is necessary that all drones involved in the collision are in motion. Thus, there can be no liability for damage caused by a collision between devices if only one of the devices was in motion and hit a drone at rest on the ground. It is important to note here, however, that under the case law (which admittedly refers to motor vehicles, but which can be applied by analogy), for a vehicle to be considered to be in motion it is sufficient that it had its engine running, even if it was standing still [5].

7. EXCLUSION OF LIABILITY FOR DAMAGE RESULTING FROM OVERFLIGHT

Another important note, contained in Article 206 §2 of the Aviation Law, is that liability for damage caused by a drone does not arise if the damage resulted from the mere fact of the flight of the aircraft taking place in accordance with the law. So let’s outline a situation, if the noise caused by the flight of a drone frightens the grazing cows, which, frightened, move away from the pasture and get lost, the drone operator will not be liable for the damage suffered by the farmer who owns the herd.

8. INSURANCE ISSUES

The popularity of drones in recent years means that more and more people are deciding to purchase one. However, in addition to the many benefits and the provision of entertainment, such a purchase also carries considerable risks. The damage caused by these devices can range from an estimated insignificant amount to a huge amount. Not only can these devices cause accidents such as damaging the propeller of a second drone or breaking an ornamental shrub in the garden, but they can also damage the bodywork of a vintage Rolls-Royce or contribute to serious bodily injuries as mentioned in the previous paragraphs of this article.  For this reason, many owners of drones choose to purchase third-party liability insurance, which means that in the event of a potential loss, the insurer will cover the costs. In addition to their willingness to transfer risk, drone owners are also burdened with an insurance obligation. This is provided for in the provision of Article 2(2)(b) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators. However, only users of drones with MTOM, i.e. a maximum take-off mass of more than 20 kg, are covered by this obligation.

9. CONCLUSION

The topic of tort liability for damage caused by drones is a very capacious one and constantly raises new questions and issues that raise more and more questions. In today’s reality, restricting access to drones would undoubtedly be a retrograde step. These devices are used, among other things: to monitor air pollution levels, to support defence and even to provide an expert opinion on the condition of a facade or roof in the construction industry. Despite a plethora of aviation law regulations, there are still many drone-specific issues remaining unregulated. As in other rapidly developing fields of technology, the law has not always kept up with new developments.

In Poland and around the world, the number of owners of unmanned aerial vehicles (UAVs) is steadily increasing, and so is the risk of damage caused by incidents involving them. In addition to an excellent invention that is undoubtedly a convenience for many areas of life and has great potential, especially in the field of transport, like any change in the outside world, it also carries a risk of damage. It is worth knowing what the consequences of using a drone might be and what kind of liability you could be held liable for in the event of a possible accident.

It is very important to take all precautions when using an unmanned aircraft. From a civil perspective, drone users are potentially liable in tort for causing damage to property or persons. This liability cannot be waived or excluded in advance. In the case of damage caused by a drone crash, one is liable on the basis of the strict liability principle (Articles 435, 436 of the Civil Code), while in the case of a collision with another device, one is liable on the basis of the strict liability (Article 415 of the Civil Code). The law provides for certain circumstances to escape liability in the event of damage caused by a drone. Whenever using an unmanned aircraft, you should always be aware of the potential liability of the person operating it and scrupulously observe all safety rules. This will minimise the risk of damage and being subject to potential liability.

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Maciej Szmigiero, PhD in Law, attorney at law

cooperation: Magdalena Paź, 3rd year student at the Faculty of Law and Administration of the Jagiellonian University in Kraków

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[1] Official website of the Civil Aviation Authority, www.ulc.gov.pl/pl/zarzadzanie-bezpieczenstwem/sprawozdania-o-stanie-bezpieczenstwa-lotnictwa-cywilnego/6015-sprawozdanie-o-stanie-bezpieczenstwa-lotnictwa-cywilnego-za-rok-2022, accessed (04.12.2022).

[2] www.bbc.com/news/technology-34656820

[3] M. Kaliński, Bezprawność jako przesłanka odpowiedzialności deliktowej. Glosa do wyroku SN z dnia 14 lutego 2013 r., II CNP 50/12, PS 2016, no. 2, pp. 109-114.

[4] www.nypost.com/2015/05/01/graffiti-artist-uses-drone-to-deface-kendall-jenner-ad/

[5] Judgment of the SA in Białystok of 12.07.2017, I ACa 123/17.

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