The use of automated drone technology on construction projects is well on its way toward becoming the industry standard, even as regulation and law struggle to keep up. The slow and deliberate Federal Aviation Administration process of issuing regulations governing unmanned aerial vehicle (UAV) flight may be the most visible example, but there are a number of others, some specific to the construction industry, as companies race to develop the software that allows drones to collect and process data in real time and in automated fashion. Drones enable construction companies to survey and plan their construction sites in an easy and economical fashion.

But the drones—that is, the hardware itself—are just tools. Enter software that companies are developing to automate those drones specifically for the construction industry, allowing them to fly over a construction project, survey the property, find construction defects in real, or almost real, time, and, eventually, control other automated un-manned construction vehicles in the job site. It is this fast-paced software evolution that could leave existing law behind and force the courts to rely on outdated legal precedents to resolve disputes involving drone technology.

The question will be what are the implications and liability exposure for using or relying on data gathered by an automated drone in a construction project. The use of automated drones to survey land in a construction project can serve as an example. The current law regulating the performance of land surveying in many jurisdictions refers, as it would be expected, to actual “persons” performing this activity. (See Cal. Bus. & Prof. Code §§ 8700-8805; N.Y. Educ. Law §§ 7203-7204 (Consol.); Tex. Occ. Code Ann. § 1071.002.) It is this concept of a “person” having to be the recipient of the license that might need to be addressed in the not-so-distant future as intelligent drones and software are able to actually perform these activities. The California Professional Land Surveyors’ Act (the “Land Surveyors’ Act”) can serve as an example.

The Land Surveyors’ Act requires that any data collected by an automated drone that is to be used in civil engineering or other surveying activities must necessarily be supervised or approved by a licensed land surveyor—a person. (Cal. Bus. & Prof. Code § 8725.) The Land Surveyors’ Act defines Land Surveying as “A person” who locates the alignment or elevation of any civil engineering design or plans, determines the configuration or contour of the earth by applying photogrammetry or mathematical principles, locates or retraces any property lines or boundaries or coordinates the work of other surveying consultants or technicians. (Cal. Bus. & Prof. Code §§ 6731, 8726.) The Land Surveyors’ Act also defines land surveying as any person who “Creates, prepares, or modifies electronic or computerized data in the performance of [surveying activities]” or any person who “[r]enders a statement regarding the accuracy of maps or measured survey data.” (Cal. Bus. & Prof. Code § 8726 (m), (n).)

The requirement that surveying data that is to be used in a construction project be conducted or supervised by a licensed person could give rise to liability for the software company facilitating the drone services to the extent that its data and maps are not reviewed by a licensed surveyor. Under California law, companies providing drone surveying services could be liable for a mistaken survey, even absent a contract with the owner. California law recognizes that liability “to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.” (Kent v. Bartlett (1975) 49 Cal. App. 3d 724, 728.)

In Kent the court found that a surveyor could be liable to an owner even if the surveyor had never entered into a contract with that owner because future reliance on its survey would be reasonable and anticipated. (Id. at 730-731.)

Using a drone as a tool to collect data or render a map of a construction site is fairly straightforward, and the requirements of the Land Surveyors’ Act can be met by having a licensed surveyor review the drone-collected data or the rendered map. However, as drones become capable of performing more automated functions, and their software enables them to constantly collect data on construction sites and render of maps with the click of a button, it will become increasingly unlikely that a licensed surveyor would be able to review all new collected data or every newly rendered map, as the law requires.

A drone company could try to address this issue by having a licensed surveyor on staff to periodically supervise and calibrate its software and conduct quality control spot-checks. But even such a measure might not be enough to shield a drone surveying company or the contractor that retains it from liability.

The liability standard in the construction industry could evolve as automated drones become the norm in the industry. To the extent drone companies can claim their software and hardware allow them to identify construction defects in almost real-time, thanks to the immediacy and specificity of the data they can provide, the negligence standard in construction defect cases could be determined with reference to industry standards, customs, and practices. A savvy plaintiff’s attorney might argue that this new technology is readily available in the industry, that a contractor would have had access to such drone services, that using this type of drone data collection would have allowed for the early discovery of construction defects, and that the contractor acted negligently by failing to take steps to retain such services.

Automation will certainly have other legal effects in the construction industry, from tort liability for unmanned construction equipment, to the future of the state considering the licensing of robots as surveyors, instead of only persons. Now is the time for the legislatures of California and other states with similar provisions to begin thinking about these changes and to update their professional occupation laws to account for the technological sea change that is already upon us.

Matt Richards and Aldo Ibarra are San Francisco-based attorneys with Nixon Peabody, a global law firm with offices in the U.S., Europe and Asia. They represent owners and general contractors in federal and state court construction litigation and in arbitration.