We’ve all seen the YouTube videos or Facebook posts of a drone in action. The recent article in the ENR magazine highlights a new testing program by MnDOT that is starting to use the technology in an effort to save time and money on bridge inspections. According to the article, closing off traffic is part of the inspection process, which is a cost savings when the use of drone technology is introduced into the process. However, according to federal standards outlined in the ENR article, drones may only be used to inspect the bridge components and they cannot take over the job fully under current laws:
The Federal Highway Administration’s National Bridge Inspection Standards state that a drone can be used to inspect a fracture-critical bridge span but cannot replace a crew of on-site inspectors. Therefore, drones represent only added cost.
Compare Abaffy’s article with Tom Sawyer’s article in ENR, where a drone operator was recently fined $1.9m by the FAA for unauthorized flights over New York City and Chicago. This was the largest civil penalty against an unmanned aerial-system operator.
The issue therefore raises the question of whether the use of new technologies, such as inspection by drones, present a risk or a reward? As a construction attorney, I think the answer is: both risk and reward.
For example, photography has been used in the construction industry to document the progress of the work. Over the years, this process has become more efficient through the use of digital photography and more recently with smart phones. Project team members have the ability to document the status of work on a real-time basis and preserve the photographs in a project management system. This has become more useful when dealing with claims regarding delays and construction defects.
The problem arises, however, when the project management team does not have a protocol in place to preserve the evidence. When I am asked to represent a contractor in a dispute, the claim is most likely pursued or defended based upon the information known to the client, whether by witness statement, project records, or photographs/videos. Provided that this information is readily accessible, it helps in pursuit of the claim process, whether pursuing additional compensation or defending a claim of construction defects. The real challenge becomes getting access to this information as early as possible.
When you think of the rewards versus the risks, I think the use of drone technology will be helpful (just as photographic evidence is useful) to the claims analysis. At this stage, there does not appear to be any reported case law on whether a court or arbitrator would find any challenges to the use of drone technology on a construction project. Likely, the judge or arbitrator would apply traditional, evidentiary standards in reviewing the proposed evidence. Unless there is an issue like the limitations placed by the Federal Aviation Administration rules about the use of drone equipment (i.e., that the drone cannot fly within 500 feet of anyone who isn’t the operator of the drone), then I think there is a greater reward based on the cost savings to a contractor in using these technologies.
As they say, time flies… And only time will tell.