BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 415 (Knight)
As Introduced
Hearing Date: May 7, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Space Flight Liability
DESCRIPTION
Existing law, the Space Flight Liability and Immunity Act,
limits the civil liability a space flight entity, as defined,
for injuries arising out of space flight activities if both the
risks are disclosed to the participant and the participant
provides informed consent, as specified.
This bill would add manufacturers or suppliers of component
services, or vehicles that have been reviewed by the Federal
Aviation Administration as part of issuing a license, permit, or
other authorization pursuant to specified federal laws (relating
to commercial space launch activities) to the definition of
"space flight entities" and expand the existing qualified
immunity for those entities to manufacturers or suppliers.
BACKGROUND
Under existing law, everyone is responsible, not only for the
result of his or her willful acts, but also for an injury to
another caused by his or her lack of ordinary care or skill in
the management of his or her property or person. Existing law
does, however, recognize an exception to this general rule
insofar as the person injured has, willfully or from lack of
ordinary care, brought the injury upon him or herself. (Civ.
Code Sec. 1714(a).) Accordingly, a person who injures another
may have a defense from liability based upon the doctrine of
assumption of risk or contributory negligence. Essential
elements of the defense of assumption of risk are (1) whether
(more)
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there has been a voluntary acceptance of risk and (2) whether
such acceptance, whether express or implied, has been made with
knowledge and appreciation of risk. (Gomes v. Byrne (1959) 51
Cal 2d 418.)
In order to promote the emerging commercial space flight
industry, various states, including Colorado, Florida, Texas,
New Mexico, and Virginia, enacted space flight limited civil
liability laws to protect space flight companies from potential
lawsuits brought by private citizens who participate in space
flights. In California, space flight liability legislation was
first introduced in AB 2834 (Maze, 2007), but that bill was
never referred to a policy committee. Then, last year, the
Legislature passed AB 2243 (Knight, Ch. 416, Stats. 2012),
providing limited immunity from civil liability for space flight
entities in order to encourage the development of the space
flight industry in California. That bill, however, was largely
predicated on the assumption of risk doctrine and incorporated
requirements to ensure that the participant knew of and
knowingly consented to the risks of space flight.
AB 2243 expressly stated that it would not limit the liability
of a manufacturer of a part or component used in space flight
activities if a defective part or component proximately causes
injury to the participant.
This bill now seeks to expand the definition of space flight
entities to extend the limited immunity created in AB 2243 to
manufacturers or suppliers of component services, or vehicles
that have been reviewed by the Federal Aviation Administration
as part of issuing a license, permit, or other authorization
pursuant to specified federal laws relating to commercial space
launch activities.
CHANGES TO EXISTING LAW
Existing federal law encourages private sector efforts to
provide commercial space flight. (51 U.S.C.S. Sec. 50901 et
seq.)
Existing federal law provides for the licensing of entities who
provide space launch and reentry services. (51 U.S.C.S. Sec.
50905.)
Existing federal law requires a license holder who provides
space launch and reentry services (space flight entities) to
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inform the space flight participant in writing about the risks
of the launch and reentry and requires that the space flight
participant be informed in writing of relevant information
related to the risk or probable loss during each phase of the
space flight. (51 U.S.C. Sec. 50905(b)(5).)
Existing law provides that everyone is responsible, not only for
the result of his or her willful acts, but also for an injury to
another caused by his or her lack of ordinary care or skill in
the management of his or her property or person, except so far
as the latter has, willfully or from lack of ordinary care,
brought the injury upon himself or herself. (Civ. Code Sec.
1714(a).)
Existing law requires a space flight entity to provide a space
flight participant, at minimum and in addition to any language
required to be provided by federal law, warning of the inherent
risks associated with space flight for which there is limited
civil liability under California law, including, but not limited
to risk of bodily injury, including death, emotional injury and
property damage, as prescribed. The space flight entity must
obtain the participant's signature acknowledging the prescribed
warning. (Civ. Code Sec. 2211(a).)
Existing law provides that a space flight entity's failure to
comply with the written warning and consent requirements above
shall prevent the space flight entity from invoking the limited
immunity. (Civ. Code Sec. 2211(b).)
Existing law provides that a space flight entity shall not be
liable for participant injury arising out of space flight
activities if both of the following apply: (1) the participant
has been informed of the risks associated with space flight
activities as required by federal law and the written warning
and consent requirements, as specified; and (2) 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, as required by federal law and the provisions of the
bill. (Civ. Code Sec. 2212(a).)
Existing law provides that if the participant provides informed
consent to the inherent risks, pursuant to the above
requirements, then the participant, his or her representative
(including the heirs, administrators, executors, assignees, next
of kin, and estate of the participant), or any person who
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attempts to bring a claim on behalf of the participant for a
participant injury, are precluded from maintaining an action
against, or recover from, a space flight entity for a
participant injury that results from the risks associated with
space flight activities. (Civ. Code Sec. 2212(b).)
Existing law provides that a space flight entity is still
subject to civil liability if it:
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;
intentionally causes a participant injury; or
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. (Civ. Code Sec. 2212(c)(1)-(3).)
Existing law specifies that the above provisions providing for
the qualified immunity of space flight entities shall not be
construed to limit the 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.
(Civ. Code Sec. 2212(e).)
Existing law provides specified definitions for "participant,"
"participant injury," "space flight activities" and "space
flight entity." Specifically, existing law defines "space
flight entity" to mean any public or private entity that holds,
either directly or through a corporate subsidiary or parent, a
license, permit, or other authorization issued by the United
States Federal Aviation Administration (FAA), as specified,
including, but not limited to, a safety approval and a payload
determination. (Civ. Code Sec. 2210.)
This bill would expand the definition of space flight entity
above to include a manufacturer or supplier of components,
services, or vehicles that have been reviewed by the FAA as part
of issuing a license, permit, or other authorization pursuant to
specified federal law.
This bill would correct a cross-reference in existing law to a
specified federal statute.
COMMENT
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1. Stated need for the bill
According to the author:
In order to promote the emerging industry of private human
space travel, California must provide 'manufactures and
suppliers' with regulatory latitude and limited
indemnification from civil liability to ensure the state's
competitive marketplace.
SpaceX, Virgin Galactic and the Spaceship Company are all in
the business for commercial space flights in the United
States. It is imperative that we provide them with the
incentives in California to bring the commercial flight
business to our state. Last year's passage of Assembly Bill
2243 was the first step in reducing liability, but adding
manufacturers and suppliers of these space flight vehicles
allows these companies to innovate and explore in California
without the worry of excessive liability.
Numerous proponents of the bill have written in support that,
"[o]ther states, such as Virginia, Texas, and Florida already
have full liability for commercial flights including for
manufacturers and suppliers. Most recently, New Mexico is
acting on legislation before the Governor that would join them
to the list of states with full limited liability for commercial
spaceflights. Senator Knight recognizes that spaceflight is an
inherently dangerous activity and California needs certain
protections in place in order to allow the industry to exist in
this state."
Also in support, the Commercial Space Flight Federation writes
that "[m]any prospective suppliers of parts and materials for
commercial spaceflight are primarily in the business of
supplying other industries[;] industries without the risks and
dangers of commercial spaceflight. The promise of commercial
space flight centers on leveraging technologies originally
developed in other industries, such as information technology,
automotive, and health care to applying them to spaceflight, to
decrease the cost of space access. In this way more Americans
and Californians will have access to the life-saving
technologies that space enables. From weather, wildfire and
tsunami warning satellites to scientific research and
educational experiments, the commercial space industry is in the
business of improving and saving lives-providing that the
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benefits far outweigh the risk. However, suppliers are leery of
entering a field that has inherent risks without having
protections from excessive liability."
2. This bill would extend the limited immunity provisions created
by AB 2243 in direct conflict with the policy approved by this
Committee in AB 2243 just last year
As noted in the Background, this bill is an attempt to expand
the immunity provided by the Space Flight Liability and Immunity
Act that was enacted last year by AB 2243 (Knight, Ch. 416,
Stats. 2012). The justification for the immunity provided by
AB 2243-the assumption of risk doctrine-does not extend to
manufacturers or suppliers who are the focus of this bill.
Under existing law, the assumption of risk can be raised as a
defense to the general rule that if a person injures another,
the person may be held liable for the other's injuries. The
defense "rests upon the plaintiff's consent to relieve the
defendant of an obligation of conduct toward him, and to take
his chances of harm from a particular risk." (Alcorn v. Davies
(1959) 173 Cal.App.2d 569, 574-575.)
As noted in this Committee's analysis, AB 2243 sought to
"provide limited immunity from liability for a space flight
entity if the entity provides a warning, as specified, of risks
associated with space flight and the participant acknowledges
these risks. This immunity is predicated on the participant
assuming the risk of the inherently dangerous activities of
space flight." (Sen. Judiciary Com, analysis of AB 2243
(2011-2012 Reg. Session), July 3, 2012, p. 4.)
Of note, while AB 2243 granted limited immunity to the space
flight entity, it expressly did not extend that immunity to any
entity that would be responsible for product defects that
proximately cause injury to a person. In fact, this Committee's
analysis commented specifically that, "[t]he bill makes it
clear that there is no limited liability for a manufacturer of a
part or component used in space flight activities if a defective
part or component proximately causes injury to the participant."
(Id. at p. 7.) That limitation, therefore, was a key component
to this Committee's consideration of the bill.
In contrast, this bill would extend the immunity provisions of
AB 2243 to those exact manufacturers, even where their
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negligence could be the proximate cause of the injury to the
participant. As a result, a manufacturer would be immune from
liability unless it (1) commits an act or omission constituting
gross negligence or willful or wanton disregard for the safety
of the participant, and that act or omission proximately causes
a participant injury; (2) intentionally causes a participant
injury; or (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
As such, the bill would not be consistent with the policy
approved by this Committee in passing AB 2243, nor would it be
consistent with general California law with respect to each
party accepting responsibility for their own acts that cause
injuries to others, unless the person has assumed the risk of
the injury to him or herself. Arguably, while a person may
assume the risk of injury or death with an inherently dangerous
activity such as space flight, they do not assume the risk for
product defects.
In opposition to this bill, the Consumer Attorneys of California
(CAOC) write that:
Just last session, CAOC worked in good faith with [Senator
Knights'] office and the judiciary committees on AB 2243
(Knight). As part of that debate, CAOC removed its opposition
to the bill, which was signed by the Governor and is now law.
AB 2243 created new and unprecedented immunities which related
to space travel. However, the original bill was amended after
CAOC opposition to delete the remaining controversial
provision which is now contained in SB 415. We believe our
good faith efforts from last year should be respected.
Simply put, it is one thing to presume people assume the
inherent risks found in space flight. It is quite the
opposite to immunize manufacturers from liability for product
defects. No one ever assumes the risk that a product will be
defective. [ . . . ] If the product is faulty and can be shown
to be the proximate cause of the injury, the current law
should apply.
3. Removing strict liability for product defects is arguably
an imprudent means to incentivize companies to develop
innovative space flight technologies in this State
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As a matter of public policy, encouraging innovation to promote
commercial space flight activity should be done in a reasonable
manner that does not unnecessarily expose participants to
avoidable risks or preclude them from any recovery for injuries
suffered as a result of un-assumed risks. In passing AB 2243,
the Legislature sought to balance the goal of promoting space
flight activities in California with such policy considerations
by providing for a limited civil immunity that was predicated on
the well-established assumption of risk doctrine, while not
extending that immunity to shield manufacturers from liability
for product defects that proximately cause the injuries or death
of participants.
By extending the limited civil liability provisions of AB 2243
to manufacturers and suppliers, this bill would arguably disrupt
that balance. Civil liability has the primary effect of
ensuring that some measure of recourse exists for those persons
injured by the negligent or willful acts of others, and the risk
of that liability has the primary effect of ensuring parties act
reasonably to avoid harm to those to whom they owe a duty. In
tort law, there are a few areas in which the law provides for a
standard of strict (i.e. absolute) liability, instead of simply
requiring that reasonable care be taken. Strict liability
mandates the imposition of legal responsibility for damages or
injuries caused by a party's acts or omissions, regardless of
culpability or carelessness. Over 50 years ago, California was
the first state to implement strict liability in the area of
products liability, in the landmark case of Greenman v. Yuba
Power Products (1962) 59 Cal. 2d 57. There, Judge Traynor set
forth that "[t]he purpose of such liability is to insure that
the costs of injuries resulting from defective products are
borne by the manufacturers that put such products on the market
rather than by the injured persons who are powerless to protect
themselves." Since then, the rule in this state has been that
when a defective product causes injury to a party, the
manufacturer of that product or defective part is strictly
liable to the injured party. (See 6 Witkin Sum. Cal. Law Torts
Secs. 1449, 1526.)
By including manufacturers and suppliers in the definition of
space flight entity for the purposes of limited liability, this
bill would instead only provide for liability if the
manufacturer or supplier: (1) 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
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proximately causes a participant injury; (2) intentionally
causes a participant injury; or (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.
To provide an analogy, it would be unthinkable to imagine a
manufacturer of a plane or car from escaping liability for a
plane or car crash caused by their defective product simply
because they were "merely" negligent, as opposed to grossly
negligent, in the manufacturing of that product or did not
"intend" to cause harm to a specific passenger.
As a matter of public policy, whereas the proponents of this
bill argue that the bill would remove "excessive liability" for
manufacturers, it is not clear why it is justifiable to shift
any burden for the damages caused by a defect in a
manufacturer's product onto a consumer who has no control over
the design or manufacturing of that product and who is
financially less capable of absorbing those losses. Moreover,
insofar as strict liability can help provide a measure of
assurance to consumers by encouraging the manufacturer to take
the utmost care in making a product, it is unclear that it is in
the interest of public safety or the interest of a newer
industry to decrease the incentive to choose safety over
cost-saving measures. It is also unclear why this industry
should be held to a different standard than other growing or
established industries.
Support : City of Lancaster; City of Palmdale Commercial
Spaceflight Federation; Firestar Technologies, LLC; Greater
Antelope Valley Association of Realtors; Mojave Air & Space
Port; SpaceX; The Spaceship Company, LLC; Virgin Galactic
Opposition : Consumer Attorneys of California
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
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AB 2243 (Knight, Ch. 416, Stats. 2012), See Background.
AB 2834 (Maze, 2007), would have made various legislative
findings and declarations relating to commercial human space
flight in this state, including its inherent risks, and provided
related definitions. This bill was never heard in any policy
committees and died at the Assembly Desk.
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