BILL ANALYSIS Ó
AB 2243
Page 1
Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2243 (Knight) - As Amended: March 29, 2012
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : Space Flight Immunity
KEY ISSUE : Should private or public entities that offer
Commercial space flights have qualified immunity from liability
for injuries that are caused by the inherent risks associated
with space flight?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
In 2004 Congress passed the Commercial Space Launch Amendments
Act of 2004 (CSLAA) to "promote the development of the emerging
commercial space flight industry." While the primary objective
of CSLAA was to create a licensing and regulatory regime that
would foster the growth of this emerging industry, it also
addressed the issue of the industry's potential legal
liabilities should the inherent risks associated with space
travel cause injury to property or persons. For example, under
CSLAA the federal government indemnified the industry for
liability to injured third parties through 2007 and required the
industry, thereafter, to obtain liability insurance for injuries
to third parties. However protection from third party liability
- e.g. property that might be damaged if a space vehicle crashed
on takeoff or reentry - did not cover potential death or injury
to persons who voluntarily participated in commercial space
flight as passengers. This bill - similar to laws recently
enacted in Florida, Virginia, Texas, and New Mexico - would
limit the liability of the commercial space flight industry for
death or injury caused to a voluntary participant. As proposed
to be amended, this bill would require a space flight
participant to sign a warning and acknowledgement that the space
flight provider will not be liable for any bodily injury,
including death, that the participant may suffer as a result of
the inherent risks associated with space flight activity. If
this informed consent is given and acknowledged, the space
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flight provider will be immune from liability for injury or
death to the participant, unless the injury is the result of
gross negligence or is intentionally caused, or if the space
flight provider knew or should of known of a dangerous condition
that caused the injury. This bill was initially opposed by the
Consumer Attorneys of California unless amended to model the New
Mexico statute, which appears to provide a more appropriately
limited immunity than the other states do. The author has
agreed to amend the bill in Committee in order to address those
concerns, and there is no longer any opposition to this bill.
In addition to those amendments, the Committee analysis
recommends technical amendments to correct erroneous cross
references to federal law.
SUMMARY : Provides qualified immunity from liability to a space
flight entity for injuries to a space flight participant, so
long as a written warning statement is provided to the
participant and the injury was not the result of space flight
entity's gross negligence or intentional acts, as specified.
Specifically, this bill :
1)Defines "space flight activity" to mean space launch and
reentry services, as those terms are defined by federal law.
Defines "space flight entity" to mean any public or private
entity that holds a federal license to provide space launch
and reentry services. Defines a space flight "participant" to
mean, consistent with federal law, any person, other than a
crew member, who is carried in a launch vehicle or reentry
vehicle.
2)Requires a space flight entity to have each space flight
participant to sign a prescribed warning statement
acknowledging that the participant understands the inherent
risks associated with space flight activity, including death,
and also acknowledging that the space flight entity has no
liability for injuries or damages sustained by a participant
as a result of these inherent risks.
3)Provides that a space flight entity shall not be liable for a
participant injury arising out of space flight activities if
both of the following apply:
a) The participant has been informed of the inherent risks
associated with space flight activities, pursuant to the
warning and acknowledgement described above.
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b) The participant has given his or her informed consent
that he or she is voluntarily participating in space flight
activities after having been informed of the risks
associated with those activities.
4)Specifies that if informed consent is given, pursuant to the
above, a participant, his or her representative, including
heirs, estate, or next-of-kin, or any person who attempts to
bring a claim on behalf of the participant, shall not be
authorized to maintain an action against, or recover from, a
space flight entity for injury, including death, that resulted
from the inherent risks associated with space flight activity.
5)Provides that nothing in this bill shall prevent or limit the
liability of a space flight entity if it does any of the
following:
a) Commits an act or omission that constitutes gross
negligence or willful or wanton disregard for the safety of
the participant, and that act or omission proximately
causes a participant injury.
b) Intentionally causes a participant injury.
c) Has actual knowledge or reasonably should have known of
a dangerous condition on the land or in the facilities or
equipment used in space flight activities and the dangerous
conditions proximately causes injury, damage, or death to
the participant.
6)Specifies that nothing in this bill shall be construed to
limit the legal liability of a manufacturer of a part or
component used in space flight activities if a defective part
or component proximately causes an injury to the participant.
7)Specifies that any limitation on legal liability afforded by
this section to a space flight entity is in addition to any
other limitations of legal liability otherwise provided by
law.
EXISTING LAW :
1)Promotes and encourages, under the federal Commercial Space
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Launch Amendments Act of 2004, the use of the space
environment for peaceful purposes and private sector efforts
to provide commercial space flight services. (51 USC 50901 et
seq.)
2)Provides, under federal law, for the licensing of persons or
entities who wish to provide space launch and reentry services
and requires, among other things, that the license holder
inform the space flight participant in writing about the risks
of the launch and reentry, including the safety record of the
launch or reentry vehicle type, and has informed the space
flight participant in writing of any relevant information
related to risk or probable loss during each phase of the
flight. (51 USC Sections 50905.)
3)Provides that every person is responsible, not only for the
result of his or her willful acts, but also for an injury
caused to another by his or her want of ordinary care or skill
in the management of his or her property or person. (Civil
Code Section 1714.)
COMMENTS : In 2004 Congress passed the Commercial Space Launch
Amendments Act of 2004 (CSLAA). This Act was designed to
"promote the development of the emerging commercial space flight
industry." CSLAA creates a licensing and regulatory regime
designed to foster the growth of this emerging industry; it also
recognizes that the inherent dangers of space travel, especially
at this early stage of development, creates liability and
litigation concerns that could potentially stymie this infant
industry. For example, under CSLAA the federal government
indemnified the industry for liability to injured third parties
through 2007; thereafter, the industry was required to obtain
liability insurance for injuries to third parties. However
protection from third party liability - e.g. property that might
be damaged if a space vehicle crashed on takeoff or reentry -
did not immunize commercial space flight providers for injuries
to passengers who participate in the commercial space flight.
This bill - similar to laws recently enacted in Florida,
Virginia, Texas, and New Mexico - would limit the liability of
the commercial space flight industry for death or injury caused
to voluntary participant. As proposed to be amended, this bill
would require a space flight participant to sign a warning that
acknowledges both the inherent risks of space flight and the
fact that the space flight entity shall not be liable for any
bodily injury, including death, which may be caused by those
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inherent risks. If this informed consent is given and
acknowledged, the space flight provider will be immune from
liability for injury or death to the participant, so long as the
injury is not the result of gross negligence or intentionally
caused, or if the space flight provider knew or should of known
of a dangerous condition that caused the injury.
With the retirement of the U.S. space shuttle program, the
author claims that innovators in private industry are looking to
fill the void, but they are wary of civil suits if anyone is
harmed undertaking this inherently dangerous activity. By
providing this emerging industry with limited immunity, the
author hopes, this measure will ensure California's place in the
competitive marketplace.
Proposed Author Amendments Address Concerns : As introduced,
this bill was opposed by the Consumer Attorneys of California
(CAOC) unless it could be amended to adopt provisions of the New
Mexico statute. Although concerned about the general precedent
of providing immunity to a single industry, CAOC focused on
three concerns in particular that could easily be addressed by
adopting the New Mexico statute as a model: (1) a space flight
entity should only be immune for injury that results from the
"inherent" risks associated with space flight activity; (2) the
immunity created by this bill should only apply to space flight
providers, and not to the manufacturers of component parts; and
(3) immunity should not apply if the space flight provider knew
or should have known of a dangerous condition and that condition
is the proximate cause of injury. To address these concerns,
the author has graciously agreed to accept the following
amendments as author's amendments in this Committee:
1.Insert the word " inherent " before "risks" on page 3 lines 31,
34, and 38, and on page 4 lines 11, 16, and 24
2.On page 3 on line 17 delete "'Space flight entity' shall also"
and delete lines 18 to 22 in their entirety.
3.On page 4 after line 36 add a new subdivision (e) that reads:
(e) Nothing in this section shall be construed to limit the
legal liability of a manufacturer of a part or component used
in space flight activities if a defective part or component
proximately causes an injury to the participant.
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4.On page 4 line delete "evidencing" and insert: or
5.On page 4 line 27 delete "either" and insert: any
6.On page 4 after line 32 insert a new paragraph (3) to read:
( 3) Has actual knowledge or reasonably should have known of a
dangerous condition on the land or in the facilities or
equipment used in space flight activities and the dangerous
condition proximately causes injury, damage, or death to the
participant.
Technical Amendments: In the bill in print, the cross
reference to federal law cites Title 49 of United States Code
Sections 70101 et seq. However, in 2010, Public Law 111-314
transferred Chapter 701 of Title 49 and renumbered it as chapter
509 of Title 51. Therefore, the Committee recommends the
following technical amendments:
- On page 3 line 5 and again on page 3 lines 9-10 delete "70102
of Title 49" and insert: 50902 of Title 51.
- On page 3l lines 15-16 delete "49 U.S.C. Sec. 70101 et seq."
and insert : 51 U.S.C. Sec. 50901 et seq.
- On page 3, line 36 delete "70105 of Title 49" and insert:
50905 of Title 51
ARGUMENTS IN SUPPORT : The Commercial Spaceflight Federation
(CSF), which represents companies that are working to develop
commercial spaceflight, writes that "California is already the
home to many commercial spaceflight companies, and this bill
will bring more jobs to the state by allowing these businesses
to grow and attract new companies to open up in California." If
this bill is not enacted, CSF contends, "some of the companies
currently residing in California could ultimately decide to move
their business to states that provide spaceflight liability
protection, such as Virginia, Texas and Florida. The
Spaceflight Liability and Immunity Act must be in place for
California to continue to be a leader in this industry." CSF
believes that this immunity is also justified because the
"commercial spaceflight industry is still in its development
phase, and this bill will ensure clarity on liability in a state
that has been a hub for the industry. It provides the necessary
liability protections that will allow businesses in this sector
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to operate in an efficient and effective manner, and
acknowledges that spaceflight is not a risk-free endeavor and
passengers understand and acknowledge that risk."
REGISTERED SUPPORT / OPPOSITION :
Support
Commercial Spaceflight Federation
Virgin Galactic
The Spaceship Company
Opposition:
None on file (as proposed to be amended)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334