Negligence in Space

No one looks forward to a sub-orbital or an orbital accident that results in the first personal injury or wrongful death lawsuit against a space tourism company.

Unfortunately, one will happen.

As I mentioned last week while quickie - blogging from the FAA's
commercial space transportation conference in Washington DC, on the second day of the gathering, they sure did let the lawyers out.

And one of the more engaging lawyers on Friday, (again, no offense to the good folks on the undazzling but nonetheless important NEPA management panel), rounding out the presentation entitled, "Space Toursim: Thought-Provoking Questions," was recreation and adventure sports defense counsel Tracey Knutson of Anchorage, Alaska's
Knutson & Associates who stopped by to "make some noise in the background" about risk and negligence law in the adventure and recreation arena. And noise she made.

First, (and see also Clark Lindsey's good
summary of Tracey's talk and the whole panel) Tracey acknowledged that while she represents a lot of groups and individuals who like to engage in sports and activities widely considered "extreme," and has come to find the world "extreme" overused, based on what she has learned about space tourism, as she told this audience of folks involved in the emerging human space flight business, "you are the only guys who really are extreme."

(Already she gets it.)

Tracey wants space companies to think about the inherent risks of the activity they offer, as well as the risks to the company or operation that derive from that activity. Questions of concern include: If an accident occurs, will your company survive? Will your carrier drop you? Will your customer sue you?

As yet we have no litigation stats with regard to the emerging space tourism industry (just wait), but according to Ms. Knutson, 60 to 65 percent of claims made against the recreation and tourism industry involve "some garden variety negligence."

In light of that, Tracey gave a solid talk on the basics of
negligence law and how to think through risk management. She outlined principles of duty of care, duty to warn, the reasonably prudent person standard, informed consent, contributory negligence, gross negligence and assumption of risk. She seemed to be channeling my torts professor from first year of law school. (Except that I was terrified of him; whereas Tracey is the kind of girl with whom you would not mind going heli-skiing. With your avalanche beacon on, of course.)

Tracey did not tie in or reference the FAA proposed human space flight requirements (I'll have to send her a copy of the NPRM now that she's catching the space tourism bug and correctly finding that this all fits nicely into her well-established, extreme law practice ;), but she did list the fundamentals of risk and waiver documents under state law, and pointed out that these documents are contractual in nature and are not drafted by corporate counsel but by lawyers who specialize in her area.

But she warned, "courts are extremely paternalistic" when they scrutinize waiver and release documents and go out of their way to shoot them down.

(And keep in mind, although defense lawyer Knutson did not note it, high-powered counsel the likes of Hogan & Hartson's
Peter Pettibone represents billionaire space tourists, which these days means those commercial customers flying Russian Federal Space Agency's Soyuz spacecraft. But of course legal and other circumstances for private space-goers will evolve, so be careful going up against lawyers who follow Peter.)

(By the way, wait until the ABA hears about Clark Lindsey's proposition here: "Seems to me that the space tourism companies should require that a participant have his or her own lawyer co-sign the forms to make it very clear that the person was fully informed of the meaning of the legal language." Ahem. And he's not kidding. Well, we could explain to the physicists why we don't have this. But then we'd have to make them honorary lawyers.) (There. That ought to scare him off ;-)

For now, assumption of the risk is among the first legal doctrines we naturally think of when it comes to people riding rockets and engaging in private sub-orbital as well as orbital activities. I'm no tort lawyer but I agree with Ted Frank on
Overlawyered who, in connection with a well-publicized honeymoon kayak shark attack case, for example, comments, "For legal scholars: one asks whether anything remains of the doctrine of 'assumption of the risk' if a company called 'Extreme Sports Hawaii' can't invoke it without going through a trial and an appeal." One certainly might ask exactly that.

Meanwhile, as Tracey notes, litigation in recreation is booming.

And let's face it, to do business in America -- on the ground or in space -- is to assume the risk of getting sued.

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