Issue # 01-2016

Tech Talk:

Drones,….. Are they worth the headache?

There is no lack of controversy with regards to the use of drones. You can’t pick up a newspaper or read a national magazine without some reference to the proliferation of drone use. Why should our industry be any different?

While drone use being very controversial, does hold some practical applications within our industry. Drones are most controversial when applied to the investigative industry, and for good reason. However, this controversy is less prevalent in the adjusting industry.

The populace has frowned upon the use of drone technology while conducting investigations. Even when these investigations are with regards to insurance fraud. People, and more overly juries, perceive the use of drones in the investigative industry as being a violation of one’s constitutional rights to privacy. I happen to concur with this philosophy. While drones, might make it easier for the investigator to see over the claimant’s fence and into their backyard, and while these claimants may be engaged in activities that they normally claim they are not able to engage in, the use of drones to capture this footage is in my opinion, an unreasonable intrusion into the privacy of another individual. Whether that individual is a claimant or not is irrelevant.

Some would argue that the use of drones is identical and parallel to the use of hidden covert cameras. While on the surface, this argument may appear to have merit, one must consider whether or not you feel the use of a hidden covert camera to be appropriate in a locker room or bathroom. I happen to feel at the use of drones is similar to the use of covert hidden cameras in a locker room or bathroom. Neither should be considered and investigators’ accepted practice of gathering video evidence.

In the past, we have been more than able to gather evidence to the current physical capabilities of an individual without the use of drones. Pri*Con Investigations Inc. has always gathered its’ videotape evidence the old-fashioned way, boots on the ground, physical surveillance. We have honed our skill of physical surveillance to the point where we have been able to provide a 90% Success Rate in all physical surveillance for our clients. This also guarantees, that the evidence we bring to our clients is admissible and accepted by a jury within the New York Court System.

On the other hand, we do employee and utilize drones while conducting our property adjusting cases. Many of the larger carriers are currently utilizing drone technology while conducting roof inspections. We’re glad to see the industry has caught up with us.We have been employing the use of drones for the past three years while conducting roof inspections. The drones may not be able to peel back shingle, yet, but they are still a very good tool while taking the necessary slope photographs many carriers require during roof inspections. They set up much quicker and are far more cost-effective than a “slope” team. This also gives the adjuster the ability to settle the claim on-site instead of waiting for a slope team to conduct its inspection.

As an independent adjusting company, the normal progression of any independent adjuster was; licensing, Xactimate training, rope and harness training, flood certification, and then any other additional certifications you can acquire. Somewhere between licensing but prior to rope and harness training the industry’s turning towards drone training. It would not surprise me, if in the future you would see large third-party administrator firms to include an additional day of drone training with their new adjusters. Since most adjusters would utilize their drones below 1000 feet the requirements of needing FAA licensing would not come into play.

Legally Speaking:

While recently shoveling the snow off the sidewalk outside of my office, it brought to mind a recent New Jersey Superior Court case regarding snow removal from personal versus commercial properties. The case was entitled Qian-v-Toll Brothers 2015 New Jersey Lexis 825. The justice in this matter made a distinct difference with regards to snow removal from commercial, private and homeowner associations liability with regards to snow and ice removal. The courts decided that the first determination must be whether or not the property is owned, occupied and used as a residential dwelling, or is the property owned, operated and utilized by a commercial establishment. However, this line gets fuzzy and gray when dealing with cooperatives and homeowner associations.

With regards to residential dwellings, the courts have determined, that the property owner’s responsibility is to ensure that a reasonable path of the snow has been removed from the homeowners’ property. In short the property owner only has to remove snow from their property and are not expected and or liable for snow that remains an adjacent public property and or municipal property.

However, with regards to commercial property the snow must be removed from both the buildings property and any adjacent municipal or public property. In short, this means that commercial property owners must remove snow from their entire property area. This would mean, that commercial property owners and or their tenants, whomever is responsible for snow removal, must remove the snow from building to curb. Simply making a path through the snow on commercial property is no longer sufficient.

The lines become grayer when dealing with homeowner associations and cooperative associations. Both homeowner and cooperative associations are owned and operated generally by the residential members of that community while the community itself may be residential the Association is a corporation. It had long since been held in the state of New Jersey under Luchejko -v- City of Hoboken that an individual who slips and falls on a sidewalk that has an adjacent or abutting municipal property that was not deemed commercial would be held to a residential standard. The Qain Case differed in that Qain had slipped and fallen on a sidewalk within a residential community. The community was cooperatively owned and maintained by a homeowners’ association. While the outside of the property may abut and be attached to public property, he had slipped and fallen on one of the walkways within the community itself.

After considerable consideration by the New Jersey Supreme Court, the court had determined that the proper standard to be utilized in this case would be to consider the walkways and pathways similar to that of a homeowner’s property and sidewalk. For this reason, the court determined

“it is who owns or controls the sidewalk not who uses it that is the key distinguishing point between the public and private sidewalk.”

The court viewed the sidewalk is private because nothing in the record suggested that the municipality had control or responsibility over the interior walkways of a VCB.Accordingly, the Supreme Court held that the Association had a duty to keep the private walkways on the property reasonably safe just as a private homeowner would have a duty to keep his or her private walkways reasonably safe.

The court furthermore stated, that a homeowner association would not be liable in a civil action brought on behalf of a unit owner unless the injuries are caused by willful, wanton or grossly negligent acts or omissions on the part of the HOA.

The facts in the Qain case had been established in the lower court, showing that the homeowner Association did have a landscape company remove snow and ice from walkways and parking lots. The landscaping company also utilized salt and sand on walkways and paths within the community. The homeowner association and the landscaping company’s actions show that due care was taken with regards to snow and ice removal. This, as does many court cases was simply determined by the “reasonableness” standard. Since the homeowner association took reasonable measures to protect the pedestrians on its premise, Qain had no legal right for recovery and the summary judgment of the lower court was upheld.

We found this case to be relevant and timely with regards to the needs of many of our clients. We assist in representation of many law firms and insurance carriers within the New York City Metropolitan Area, many of whom insure property in New Jersey. These attorneys, and insurance companies face this question of liability on a daily basis. Pri*Con Investigations, Inc. strives to keep its investigators and adjusters current on all legal issues pertaining to our normal case activity. This ensures that our investigators and adjusters are in the field with the knowledge to necessary to provide our clients the with the services they deserve. It is this knowledge, that helps our staff gain the professional RESULTS our clients have come to expect and deserve.

Helpful Web Links:

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