11.01.2006
Rocket Ride Waivers
Some lawyers and commercial space industry folks can't stop thinking, talking and writing about liability waivers. And with good reason. In its 4th Quarter 2006 Quarterly Launch Report, FAA/AST includes a short (four-page plus footnotes) section entitled, Waivers of Liability: Are They Enough for Permittees and Licensees?A good question. As we know, and FAA overviews here, under the CSLAA, "crew and each space flight participant must execute a reciprocal waiver of claims with the FAA." However, the statute "does not require crew and space flight participants to waive claims against each other or against a licensee or permittee." Thankfully, as FAA notes, "[e]ven though the federal government does not explicitly require it, licensees and permittees can still protect themselves by using contractual waivers."
A liability waiver (or, release, exculpatory clause,) is "a voluntary forfeiture of rights to causes of action otherwise available." And FAA says a bit about assumption of risk doctrine, then offers an overview of some key issues in waiver construction.
By the way, as FAA points out, liability for intentional torts, willful or wanton misconduct, or gross negligence cannot be waived. (Even I remembered that from law school.)
Drafting spaceflight participant liability waivers necessarily depends on the jrisdiction you are in. State law controls here and proper drafting is critical since courts of course do not love waivers and will quickly throw out defective ones. The FAA offers a round-up of major "limits on waiver effectiveness for states where personal space flight is being contemplated" which I've taken the liberty of copying here (and see the report for citations):
Alaska
• Use of the word negligence is mandatory.
California
• For waivers to be valid they should distinguish between injuries due to negligence and those due to the inherent risks of activity.
• Case law is not clear if the word “negligence” is mandatory to validate a waiver.
• Parents may execute waivers on behalf of a minor child.
Florida
• Waivers release all sponsors or parties even if not named in the waiver.
• Damages of parent’s loss of filial consortium is limited to the period of a child’s minority.
• Law unclear on whether a parent can waive a minor’s rights.
New Mexico
• State has a strong public policy of freedom to contract.
Oklahoma
• Public policy does not prohibit waivers, but since they are not favored by law they will be construed against the relying party.
• State Supreme Court stated gross negligence cannot be waived.
Texas
• Waiver will be narrowly construed in favor of the party releasing liability.
• Strict requirement for fair notice.
• Both loss of consortium and wrongful death are derivative of the claim of the injured spouse.
• Case law is unclear on whether gross negligence can be waived.
Virginia
• Public policy forbids releases from liability for personal injury due to future acts of negligence “universally.”
Washington
• Waivers will only protect the service provider from those risks contemplated or assumed by the client.
• Parental consortium is an independent cause of action.
• The Supreme Court has stated that Washington courts should use common sense in interpreting waivers.
• Gross negligence or willful and wanton misconduct cannot be covered.
• Parents cannot waiver childrens’ rights, but parents can waive their right to recover for the injury to the minor.
Wisconsin
• Supreme Court stated that each waiver case would be decided on its merits under strict scrutiny.
• While wrongful death claims are derivative of claims by injured parties, loss of consortium is an independent cause of action.
• Waiver signed by the parent on behalf of a minor is enforceable.
And FAA concludes:
Although the CSLAA does not protect launch providers explicitly from space flight participants’ claims of liability, the industry is not defenseless. Properly constructed waivers are now used successfully by other recreational activity industries and can also be used by the personal space flight industry. Further, the opportunity to lobby for state legislative protection is still available. Considering the strong public support enjoyed by the commercial space industry, creating a system of waivers seems to be quite an achievable task.
Image credit: “Sky Scooters” 1950's ad, via Lileks.com
