Over at the Volokh Conspiracy, Bryant Walker Smith has been posting about the development of automated technology and the regulatory and legal challenges that this technology will raise. One of these recent posts concerned the safety of automatic cars, a topic that has gained substantial attention.
This conversation fits into a broader conversation about drones, both autonomous and remote-controlled, and how to stay safe from harm in a world filled with drones. Benjamin Wittes notes the danger of potential drone crashes, and Kenneth Anderson posts about similar safety concerns. News outlets have also raised this concern (see here and here). Airborne drones deserve special attention now, as the Federal Aviation Administration will be integrating these drones into U.S. airspace with a deadline of 2015 to develop the relevant regulations.
Ensuring the safe use of drones is a complicated endeavor. Some commentators express reservations about the FAA's ability to effectively regulate this fast-developing technology, especially given the volume of drone use that the FAA predicts. Others are more optimistic, with John Villesanor noting that effective safety regulations could also protect privacy. Some citizens are taking matters into their own hands, although this is frowned upon by the government.
While regulations are all well and good, I think that an effective solution lies in tort law. Specifically, courts could treat drones as the next generation of abnormally dangerous animals, ultrahazardous activities, or water-filled Coal Shaft (see, Rylands v. Fletcher, L.R. 3 H.L. 330). Yes, I speak of strict liability for drone torts; a presumption of liability in cases where the plaintiff is physically injured by an airborne drone.
My argument is motivated by Haddock v. Thwale, an insightful (if fictitious) case presented by A.P. Herbert in his book, Uncommon Law. There, the court held that operators of motor vehicles were to be held strictly liable, as these vehicles were no different from a dangerous animal that one allows out of one's property to run free and wreak havoc.
Courts, unfortunately, did not adopt this approach. If they had, every citizen of Los Angeles would be mired in litigation at all times. Lawyers would thrive. Drones present a new opportunity for this standard to be considered and applied.
I limit my proposal to airborne drones because from what I have heard, driverless automobiles are far safer than human-piloted vehicles, and many torts arising from accidents involving robotic cars will likely be based on the mistakes of humans. Moreover, I limit my argument to physical injury cases because the less-tangible nature of privacy cases would make plaintiff-side abuse of tort suits more likely. On the other hand, if we are to truly assuage critics' fears of privacy violations in the age of drones, perhaps this strict liability framework should extend to privacy invasion cases as well.
This proposal will likely meet resistance, both from those who encourage the use of drones and from those who will argue that this rule would lead to an increase in litigation. While this approach may lead to more lawsuits, a clear rule of strict liability would encourage the safe manufacturing and use of drones, and would be a far simpler approach than dozens of new regulations.
Finally, this approach would make first year torts classes far more exciting.