BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2243 (Knight)
As Amended May 7, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
ME/RD/TW
SUBJECT
Liability: Commercial Space Flight
DESCRIPTION
This bill would provide a limited civil immunity to space flight
entities for injuries sustained by a space flight participant if
the entities meet certain requirements, including warning the
voluntary participant of the inherent risks of space flight and
obtaining the participant's informed signed consent.
This bill would not provide immunity for injuries proximately
caused by a space flight entity that is grossly negligent,
willfully or wantonly disregards the safety of the participant,
intentionally causes injury, or has actual knowledge or
reasonably should have known of a dangerous condition, as
specified.
BACKGROUND
Space travel has fascinated the public since the first human
space flight was launched in 1961. Since that time, various
government space programs have been established and have
launched astronauts in space. Now, space travel by private
citizens is an emerging commercial industry in the United
States. Indeed, in 2004, the first private human space flight
occurred in Mojave, California. That same year, Congress passed
the Commercial Space Launch Amendments Act of 2004 (CSLAA). The
CSLAA created a licensing and regulatory scheme to promote the
development of the commercial space flight industry. However,
the CSLAA does not address liability issues that arise when
voluntary participants in commercial space flight are injured or
(more)
AB 2243 (Knight)
Page 2 of ?
die during their participation as passengers of space flight
companies.
In order to promote the emerging commercial space flight
industry, various states, including Colorado, Florida, Texas,
New Mexico, and Virginia, have 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.
To similarly encourage the space flight industry in California,
this bill would enact a limited immunity from civil liability
for space flight entities.
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 to 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.S. 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).)
This bill would require a space flight entity to provide, in
addition to any language required to be provided by federal law,
a space flight participant with the following warning of
inherent risks associated with space flight:
AB 2243 (Knight)
Page 3 of ?
WARNING AND ACKNOWLEDGMENT: I understand and acknowledge
that, under California law, there is no civil liability for
bodily injury, including death, emotional injury, or property
damage, sustained by a participant as a result of the inherent
risks associated with space flight activities provided by a
space flight entity. I have given my informed consent to
participate in space flight activities after receiving a
description of the inherent risks associated with space flight
activities, as required by federal law pursuant to Section
50905 of Title 51 of the United States Code and Section 460.45
of Title 14 of the Code of Federal Regulations. The consent
that I have given acknowledges that the inherent risks
associated with space flight activities include, but are not
limited to, risk of bodily injury, including death, emotional
injury, and property damage. I understand and acknowledge
that I am participating in space flight activities at my own
risk. I have been given the opportunity to consult with an
attorney before signing this statement.
This bill would require the space flight entity to obtain the
participant's written acknowledgment of this warning.
This bill would provide 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 provided in this bill.
This bill would provide the following definitions:
(a) "participant" means a space flight participant as defined in
Section 50902 of Title 51 of the United States Code;
(b) "participant injury" means a bodily injury, including death,
emotional injury, or property damage, sustained by the
participant;
(c) "space flight activities" means launch services or reentry
services; and
(d) "space flight entity" means 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.
This bill would provide 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
AB 2243 (Knight)
Page 4 of ?
and consent requirements contained in this bill; 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.
This bill would provide that if the participant provides
informed consent to the inherent risks specified in the warning,
then a participant, his or her representative, including the
heirs, administrators, executors, assignees, next of kin, and
estate of the participant, or any person who attempts to bring a
claim on behalf of the participant for a participant injury,
shall not be authorized to maintain an action against, or
recover from, a space flight entity for a participant injury
that results from the risks associated with space flight
activities.
This bill would provide that a space flight entity is still
subject to civil liability if the space flight entity does any
of the following:
(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 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.
This bill would specify that any limitation on legal liability
afforded by this bill to a space flight entity is in addition to
any other limitations of legal liability otherwise provided by
law.
This bill would specify that it 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.
This bill would make various legislative findings and
declarations regarding space flight.
COMMENT
AB 2243 (Knight)
Page 5 of ?
1.Stated need for the bill
The author writes:
The first human entered space over 50 years ago, a pursuit
that was decades in the making. Every astronaut since has
assumed the immense risk involved in being hurled into orbit
to further human development through the exploration of
countless scientific experiments producing everything from new
consumer products and the expansion of communications to cures
for diseases. Human space flight has been carried-out
exclusively by government spaces agencies of the United States
and Russia, with expertise provided by the private sector.
With the retirement of the U.S. space shuttle program,
innovators in private industry have developed new forms of
space transportation vehicles and are being looked upon to
fill the void of manned space flight. Undoubtedly, however,
they face the risk of civil suits if anyone is harmed
undertaking this inherently dangerous activity.
In order to promote the emerging industry of private human
space travel, California must provide innovators with
regulatory latitude and limited indemnification from civil
liability to ensure the state's competitive marketplace.
2. Immunity based on assumption of risk involved in inherently
dangerous activities
This bill would 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.
a. Assumption of risk
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, 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).) Under this provision, if a person injures another,
the person may be held liable for the other's injuries.
AB 2243 (Knight)
Page 6 of ?
However, the person who injures another may have a defense
from liability based upon the doctrine of assumption of risk.
The doctrine of assumption of risk is incorporated in Civil
Code Section 1714(a) and provides that a person who injures
another may not be liable if the injured individual brought
the injury upon himself or herself. An assumption of risk
defense is asserted on the basis of the plaintiff's consent to
relieve the defendant of an obligation of conduct towards him,
and to take his chances of harm from the particular risk.
(Alcorn v. Davies (1959) 173 Cal.App.2d 569, 574-575.)
Similarly, this bill, by requiring the space flight
participant to acknowledge in writing the risks associated
with space flight, and thus consent to exposing himself or
herself to the risks of space flight activity, would relieve
the space flight entity from liability for any injuries
sustained by the participant during the space flight. The
Commercial Spaceflight Federation, in support, argues that
this bill "provides the necessary liability protections that
will allow businesses in this sector 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." Further, they argue
that this "Act must be in place for California to continue to
be a leader in the industry."
b. Inherently hazardous activity
This bill would require a space flight entity to warn the
space flight participant of inherent risks of bodily injury or
death that may result from space flight activities. This
warning effectively would deem space flight an inherently
hazardous activity. An inherently hazardous activity is one
in which the nature of the activity or substance is so
inherently dangerous or complex that the hazard persists
despite the exercise of ordinary care. (Benwell v. Dean
(1964) 227 Cal.App.2d 226, 233.)
Existing federal law requires space flight entities to provide
to a space flight participant a written warning of the
inherent risks, as provided by the Federal Aviation
Administration (FAA), associated with space flight. (51
U.S.C.S. Sec. 50905(b)(5).) The FAA requires, among other
warnings, space flight entities to warn a space flight
participant of the risks of launch and reentry, including:
AB 2243 (Knight)
Page 7 of ?
(1) for each mission, each known hazard and risk that could
result in a serious injury, death, disability, or total or
partial loss of physical and mental function;
(2) that there are hazards that are not known; and
(3) that participation in space flight may result in death,
serious injury, or total or partial loss of physical or mental
function. (14 C.F.R. 460.45(a).)
Further, the FAA requires the space flight operator to inform
each space flight participant of: (1) the total number of
people who have been on a suborbital or orbital space flight
and the total number of people who have died or been seriously
injured on these flights; and (2) the total number of launches
and reentries conducted with people on board and the number of
catastrophic failures of those launches and reentries. (14
C.F.R. 460.45(c).)
These warnings serve to educate the space flight participant
on the potential harm that may result in voluntarily
participating in space flight activities. The FFA regulations
also require that, before flight, a space flight operator must
provide each space flight participant an opportunity to ask
questions orally to acquire a better understanding of the
hazards and risks of the mission, and each space flight
participant must then provide consent in writing to
participate in a launch or reentry. The consent must: (1)
identify the specific launch vehicle the consent covers; (2)
state that the space flight participant understands the risk,
and his or her presence on board the launch vehicle is
voluntary; and (3) Be signed and dated by the space flight
participant. (14 C.F.R. 460.45(f).)
Given the extensive warning of risks associated with space
flight required to be provided under federal regulations, in
addition to the warning required under this bill, the
opportunity to ask questions about the inherent risks
associated with space flight, and the opportunity to consult
with an attorney prior to consenting to voluntarily
participate in a space flight, the space flight participant is
arguably well-informed of the risks associated with the
potential for serious injury or death. If the participant
then consents to participate in the space flight, then the
doctrine of assumption of risk would arguably relieve the
space flight entity of liability. This bill would codify the
doctrine of assumption of inherent risk associated with space
flight and make the space flight entity immune from liability.
AB 2243 (Knight)
Page 8 of ?
c. Arguments in support of immunity for assumption of
inherent risks
Supporters of this bill assert that the commercial space
flight industry feels vulnerable to law suits that may arise
if passengers are injured or die during commercial space
flight. Indeed, the commercial space flight industry is
working to get state laws passed that limit their liability
for participants injured as a result of the inherent risks
associated with commercial space flight. Since California is
an industry leader in commercial spaceflight and home to the
nation's first licensed commercial spaceport, housed in
Mojave, proponents of the bill argue that California must
enact similar legislation to remain competitive and not lose
industry jobs to the other states that have enacted limited
civil liability laws for commercial space flight.
Virgin Galactic and The Spaceship Company, in support, assert
that "the human spaceflight industry and the jobs it creates
require sensible regulation governing liability." Further,
they argue that "the net effect of AB 2243 will be to provide
�their companies] with important assurances that are already
offered by a growing number of competing states . . . and
ensure that California remains a center of American aerospace
leadership." They also assert that their "companies have
invested �since 2005] approximately $200 million in
California, and created or supported roughly 500 high quality
jobs in the state."
Mojave Air & Space Port, also in support, argues that time "is
of the essence" and California "must take all means to insure
barriers such as civil liability litigation does not hinder
the efforts of those that strive to innovate."
3. Providing civil liability for space flight entities in some
circumstances
This bill makes it clear that nothing in this Act limits the
liability of a space flight entity whose gross negligence or
willful or wanton disregard of the safety of a participant was
the proximate cause of the participant's injury.
This bill also makes it clear that nothing in the Act limits the
liability of a space flight entity that intentionally causes a
participant injury, or had actual knowledge or reasonably should
AB 2243 (Knight)
Page 9 of ?
have known of a dangerous condition that proximately caused the
injury or damage to the participant.
4.Civil liability of manufacturers of defective parts or
components
This bill does not extend limited civil liability to product
defects shown to be the proximate cause of injuries. The 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.
5.Suggested amendments
This bill contains two technical errors and one substantive
issue that should be resolved.
a. S tatements in findings and declarations
Section 2 of the bill includes findings and declarations that
are opinions and not substantiated by evidence. As a matter
of policy, these unsupported findings and declarations should
be stricken. Accordingly, this bill should be amended as
follows:
Suggested amendment:
Page 2, strike lines 3 through 23
Page 2, line 24, strike "3" and replace with "2"
b. Technical error in Warning and Acknowledgment
The statement in the "Warning and Acknowledgment" that "under
California law, there is no civil liability for bodily injury
. . ." does not conform to the limited liability provisions
contained in this bill. To accurately inform participants
about the limited liability provided by this bill, the
following amendment is suggested:
Suggested amendment:
Page 3, line 24, strike "no" and replace with "limited"
c. Technical amendment to correct cross-reference
AB 2243 (Knight)
Page 10 of ?
The following amendment is also suggested to correct and
internal cross-reference:
Suggested amendment :
Page 4, at line 13, strike "this section" and insert
"Section 2211"
Support : Commercial Spaceflight Federation; Mojave Air & Space
Port; The Spaceship Company; Virgin Galactic
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 2834 (Maze, 2007) See Background.
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************