By: WBG, LLP Published: January 2018

Drones In Construction - Utility and Risk

In the past few years, we have witnessed fast paced technological development in the area of civilian use of unmanned aircraft systems, commonly referred to as “drones”. While many may be familiar with drones as popular recreational toys, their commercial applications have quickly progressed, reaching all the way to the construction site. This development of drone technology has created new questions of utility and risk for those seeking to reap its benefits. Additionally, as the commercial use of drones has expanded, so too have the regulations relating to the commercial use of drones.

One of the most common current uses of drones, in the construction context, relates to project management and inspections. For instance, a daily morning flyover with one or more drones equipped with cameras could help track progress, as well as accuracy of work being completed. Images taken by the drones can be compared to As-Planned models to determine when and if something has gone right, or wrong, on a project. Drones could also be used to track occurrences on site during working hours and could be helpful in determining the cause of accidents. Drones could also perform flyovers at jobsites during non-working hours to ensure there is no trespassing occurring at the jobsite. All of these functions can be accomplished with basic, lightweight drones, offering large benefits for low costs.

There are many other potential applications for drones that, while currently might be categorized as “space-age”, may not be as far off in the future as they seem. For instance, some large drones currently used in the military are capable of carrying heavy payloads. One could imagine the typical crane being replaced by a host of drones capable of quickly and efficiently transporting project materials directly to difficult-to-reach areas on the jobsite. Project duration, as well as environmental impacts, could potentially be greatly reduced through this technique. At some point, in the perhaps more distant future, drones could be used to fully accomplish certain project tasks, such as delivering and installing modular components, allowing completion of large modular projects at impressive speed. Most mind-boggling of all is the potential for single operators for multiple drones, or wholly unmanned operation of drones. Entire projects could be completed with a fraction of the previously required manpower.

Of course, all of this innovation in the world of drones must be kept in check by government regulation as concerns about safety, privacy, and environmental impact are paramount in our society. As the use of drones becomes more commonplace, there is potential for great benefits in all of these areas. However, as the technology develops, and potential uses are pushed to their limits, government must keep a close eye on the progress to protect the public.

To date, this regulatory role has been assumed by the Federal Aviation Administration (FAA), which enacted regulations meant to strictly govern the use of drones in both commercial and recreational contexts. The basic regulations governing use of drones are codified in the Code of Federal Regulation. (CFR). For the purposes of this article, we will focus solely on the regulations applicable to commercial use of drones in construction, as well as what liability issues are presented by commercial use1.

CFR 47 sets forth registration requirements for aircraft (including drones) and generally requires that any aircraft must be registered with the FAA2. Building on CFR 47, the FAA issued a notice issued in 2007 entitled “Unmanned Aircraft Operation in the National Airspace System”3. This notice required drone operators to obtain an FAA Special Airworthiness Certificate as required for commercial use of any other aircraft. In order to obtain a Special Airworthiness Certificate, an operator is required to submit information to the FAA meant to allow the FAA to ensure safety in the operation of the drone. This information includes: the intended use of the drone; the estimated number of flights the drone will undergo; estimated flight times; and the geographical area over which the drone will be operated. The operator will also be required to submit detailed drawings or photographs of the drone intended for use. Finally, an onsite review of the drone and demonstration of its use may also be required.

Since the 2007 notice, the FAA, due to concerns over time and labor burdens placed on the FAA due to large numbers of applications, issued a December 2015 Notice entitled “Registration and Marking Requirement for Small Unmanned Aircraft”4, which implemented a new registration process for certain drones. The new system allows drones classified as small (weighing less than 55 lbs.), to be registered electronically, for a fee of $5.5 As such, the potential for employing drones of 55 lbs. or less on construction sites have improved greatly.

CFR 107 sets forth numerous operating requirements6 for drones. Some highlights include requirements that:

  1. all operators of drones for commercial purpose must obtain a remote pilot certificate,
  2. a remote pilot in command be designated for any drone flight;
  3. all flights occur during daylight;
  4. an operator may only operator a single drone at any time;
  5. the operator or visual observers must maintain line of sight of the drone at all times;
  6. the drone shall not be flown at a height higher than 400 feet from the ground or, if flown from a structure, within 400 feet of the immediate uppermost limit of the structure; and
  7. operation of the drone cannot interfere with airport traffic and/or operations.

Finally, there are many local city and state ordinances, both pending and enacted, dealing with the operation of drones for private and commercial purposes. The validity and effect of these ordinances are largely unknown as the federal government has already enacted comprehensive (potentially preempting) legislation. Ultimately, it would take a legal challenge to determine the limits of such ordinances. Accordingly, if possible, compliance with them is likely the safest option.

While the potential applications for use of drones are vast, as with most construction related activities, there is risk involved that will likely affect the content of insurance policies contractors using drones will need to obtain. Potential liability in connection with the use of drones in construction generally revolves around privacy and safety concerns. In terms of privacy, drones operate at heights which may allow line of sight to otherwise private areas such as high-rise apartment windows. This privacy violation could be exacerbated by the potential for cyber-attacks, providing unintended parties with access to such lines of sight. Most drones also currently make at least some amount of noise, and in certain cases can be quite loud. Accordingly, construction in residential areas could mean complaints from local constituents about the effects of drones on their ability to enjoy their homes. As for safety, drone use creates potential for serious injuries and/or property damage. For instance, if an operator loses control of a drone due to negligent use or maintenance of a drone or through some manufacturer or product defect, there is potential for a collision with persons, property, or even other aircraft. There is also the potential for drones causing contamination of protected areas through transference of pollutants.

As drones have only recently become more commonplace, and even more so in the commercial context, insurance coverage for the risk associated with their insurance policies is a bit of a grey area. Currently, it appears that the Insurance Services Office Inc. (ISO) general form insurance policies currently exclude coverage for bodily injury and property damage related to use of drones (due to their classification as “aircraft”), with certain exceptions. However, under the generic ISO form, coverage for products liability injuries related to drone usage will likely be covered, as those forms lack an aircraft exclusion. The ISO form also appears to provide some coverage for certain invasions of right to privacy, but generally only to the owner, landlord and/or lessor. There is also apparent coverage for publication of material, for instance, any photos obtained from a drone-related cyber-attack. The ISO recently introduced some additional options for customizing its forms which can affect the risk allocation for drone related injuries by incorporating the use of the term “unmanned aircraft”.7 Until these issues are settled, the takeaway is that contractors, professionals and/or owners intending to use drones for their project must be mindful of contractual insurance requirements and/or risk allocation related to drone operations.

As the uses of drones in construction industry becomes more widespread and technology develops further, there will surely be expansion of federal, state and local legislation that governs their usage, as well as innovations in applicable insurance coverage. Still, regardless of the risks and restrictions, with all of the potential applications currently known and those to be developed in the future, now could be the time for the construction industry to embrace these useful machines. It is important that anyone in the construction industry that intends to utilize the drone technology be prepared to do so safely, and in accordance with federal and local laws.

If you would like to learn more about regulation of recreational use, see the D.C. Circuit decision in Taylor v. Huerta, No. 15-1495 (D.C. Cir. 2017) at


See 72 Fed. Reg. 6689 (Feb. 13, 2007) at

80 Fed. Reg. 78,594 (December 16, 2016)

Registration and Marking Requirement for Small Unmanned Aircraft 80 Fed. Reg. 78,594 (December 16, 2015).

6 https://www.ecfr.gov/cgi-bin/text-idx?SID=e331c2fe611df1717386d29eee38b000&mc=true&node=pt14.2.107&rgn=div5#se14.2.107_112

Information obtained from Professional Insurance Agents Industry Resource Center. Visit their website at https://pia.org.

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