BILL ANALYSIS Ó
SB 415
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Date of Hearing: June 10, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 415 (Knight) - As Amended: January 22, 2014
PROPOSED CONSENT
SENATE VOTE : 36-0
SUBJECT : Space Flight Liability
KEY ISSUE : Should the Space Flight Liability and Immunity Act
be amended so as to clarify that a flight participant's
acknowledgement of risk is not construed as contrary to public
policy?
SYNOPSIS
California's Space Flight Liability and Immunity Act (Act) of
2012 provides that an entity that offers space flight activities
is immune from civil liability for an injury to a flight
participant if the injury results from the inherent risks of
space flight. However, this immunity may only be invoked if the
participant signed a written acknowledgement that he or she,
having been informed of such risks, is participating at his or
her own risk. The immunity does not apply if the injury results
from the space flight entity's grossly negligent or intentional
conduct, or if the entity knew or should have known of a
dangerous condition in its facilities or equipment and that
condition proximately causes the injury. The Act specifies that
these limited immunity provisions do not extend to the
manufacturer of any component or part used in the space flight
activity if a defective part or component injures the
participant. Although an earlier version of this bill attempted
to extend the limited immunity to manufacturers of parts and
components used in space flight activities, the bill as most
recently amended simply specifies that the signed acknowledgment
required under existing law shall not be construed as contrary
to the public policy of this state. The bill is supported by
companies involved in space flight activity and by various
communities that hope to host such companies. There is no known
opposition to this bill.
SUMMARY : Provides that a legislatively prescribed warning and
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acknowledgement that must be signed by a voluntary participant
in a space flight activity shall not be construed to be contrary
to the public policy of this state.
EXISTING LAW :
1)Promotes and encourages, under the federal Commercial Space
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 inform 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, under California's Space Flight Liability and
Immunity Act, that a space flight entity, as defined, is not
liable for a participant injury arising from the space flight
if both of the following are true: (a) the participant has
been informed of the inherent risks associated with space
flight, as specified; and (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, as
specified. Specifies that nothing in this provision shall be
construed to prevent or limit the liability of a space flight
entity that 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 to the participant.
(Civil Code Sections 2210-2212.)
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4)Specifies that nothing in the Space Flight Liability and
Immunity Act shall 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. (Civil Code Section 2212 (e).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : In 2004 Congress passed the Commercial Space Launch
Amendments Act (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, create 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. In
an effort to encourage the growth of this industry in their
respective jurisdictions, California and a number of other
states responded by passing laws that limited a space flight
entity's liability for injuries to participants. California's
AB 2243 (Chapter 416, Statutes of 2012) limited the liability of
the commercial space flight provider for any injury to a space
flight participant that is caused by the "inherent risks" of
space flight, so long as the injury was not the result of the
gross negligence of intentional act of the space flight entity.
Most important for this bill, existing law specifies that such
immunity only applies if the space flight participant signs a
warning acknowledging that he or she understands the inherent
risks of space flight and understands the space flight entity's
limited liability under California law.
This bill merely specifies that the warning and acknowledgment
that is signed by the participant shall not be construed as
contrary to public policy. Arguably such a provision is
unnecessary. However, the author and supporters apparently
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assume that the warning could potentially be construed as a
waiver of rights and thus be deemed contrary to public policy.
It seems highly unlikely that the warning required by existing
law would be construed as contrary to public policy, for two
reasons. First, the "warning and acknowledgment" required under
existing law is not technically a waiver; it is simply an
acknowledgment that the participant understands the inherent
risks of space flight and understands that the space flight
entity's liability is limited under California. Because the law
grants the space flight entity a qualified immunity, the
participant therefore does not possess a right that can be
waived so long as the space flight provider's conduct falls
within the scope of the statutory immunity. Second, even if the
acknowledgement is deemed to be a waiver, waivers are generally
only deemed contrary to public policy when they are drafted by
the party that seeks immunity. Because the warning at issue
here is legislatively prescribed and drafted, it cannot be
contrary to public policy; it is public policy. Nevertheless,
this bill would expressly foreclose the possibility, however
unlikely, that a court could find a legislatively drafted and
prescribed notice as contrary to public policy.
REGISTERED SUPPORT / OPPOSITION :
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
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334