2.09.2007
Virginia leads the way
Attention, states that are serious about spaceports: take a look at the legislation pending in the forward-thinking Commonwealth of Virginia -- House Bill 3184 -- the nation's first Spaceflight Liability and Immunity Act, which flew through the 100-member House of Delegates this week by a vote of 99-0.The Act would grant to spaceflight entities immunity from negligence or wrongful death claims brought by suborbital flight participants (passengers and crew). That's one small bill for state tort law. One giant leap for personal spaceflight business in Virginia.
Under the proposed Virginia regime, to obtain immunity from liability a spaceflight entity must have its spaceflight participants read and sign a document that says:
"WARNING: Under Virginia law, there is no liability for an injury to or death of a participant of spaceflight activities provided by a spaceflight entity if such injury or death results from the inherent risks of the spaceflight activity. Inherent risks of spaceflight activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this spaceflight activity."
The immunity does not cover gross negligence, willful or wanton disregard for safety, or intentional torts.
What is the existing law on all this in the Commonwealth? Courts in Virginia have consistently held waivers of claims void as against public policy. (In Hiett v. Lake Barcroft Community Assoc., 244 Va.191, 418 S.E.2d 894 (1992), where injured triathalon competitor signed an entry form containing a waiver of claims for injuries, the court held "since the decision in Johnson's Adm'x v. Richmond and Danville R.R.Co., 86 Va.975, 11 S.E. 829 (1890), the law in Virginia 'has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy.'" See also, Aldridge v. Atlantic Rural Exposition, Inc., 13 Cir. LS22264, 67 Va. Cir. 404 (2005); and, Estes Express Lines, et al v. Chopper Express, Inc., 13 Cir LS26714 (2005), citing ol' Johnson: to uphold the agreement in question would be "to hold it was competent for one party to put the other parties to the contract at the mercy if its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void."
HB 3184 would preempt that state doctrine as to personal spaceflight immunity. The statute specifies required language for informed consent.
(Compare: The federal regs of course do not require waiver of liability between space flight participants and permittees or licensees (§ 440.17 (e)).
Will other states follow Virginia's lead? Watch the jurisdictions with spaceport dreams. For now, states and state courts are all over the map on this. For more background, take a look at FAA's Quarterly Launch Report for the 4th Quarter 2006 for a Special Report: Waivers of Liability: Are They Enough for Permittees and Licensees? -- which includes a quick overview of spaceflight participant liability waiver law in Alaska, California, Florida, New Mexico, Oklahoma, Texas, Washington and Wisconsin.
Jack Kennedy of Spaceports blog reports the next step foe the Virginia House measure is deliberation by the Senate Courts of Justice Committee; if approved by the Senate Committee the bill moves to the floor of the Senate and then to Governor Tim Kaine for signature, amendment, or veto in the spring.
HB 3184 is short, sweet, pro-space tourism as you please, and I don't mind posting it in full right here.
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Spaceflight Liability and Immunity Act.
§ 8.01-227.8. Definitions.
For purposes of this section:
"Participant" means any person, passenger, or crew participating in spaceflight activities.
"Spaceflight activities" means any activities necessary or antecedent to preparing, launching, carrying, or landing a participant on a suborbital flight.
"Spaceflight entity" means any public or private entity holding a United States Federal Aviation Administration launch, reentry, operator, or launch site license for suborbital flight.
"Suborbital" means a distance at or above 62.5 miles from the Earth's mean sea level.
§ 8.01-227.9. Civil immunity for spaceflight entities.
A. Except as provided in subsection B, a spaceflight entity is not liable for injury to or death of a participant resulting from the inherent risks of spaceflight launch activities, so long as the warning contained in § 8.01-227.10 is distributed and signed as required. Except as provided in subsection B, no participant or participant's representative is authorized to maintain an action against or recover from a spaceflight entity for the loss, damage, or death of the participant resulting exclusively from any of the inherent risks of spaceflight activities; provided that in any action for damages against a spaceflight entity for spaceflight activities, the spaceflight entity shall plead the affirmative defense of assumption of the risk of spaceflight activities by the participant.
B. Nothing in subsection A shall prevent or limit the liability of a spaceflight entity if the spaceflight entity does any one or more 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 injury, damage, or death to the participant;
2. Has actual knowledge or reasonably should have known of a dangerous condition on the land or in the facilities or equipment used in the spaceflight activities and the danger proximately causes injury, damage, or death to the participant; or
3. Intentionally injures the participant.
C. Any limitation on legal liability afforded by this section to a spaceflight entity is in addition to any other limitations of legal liability otherwise provided by law.
§ 8.01-227.10. Warning required.
A. Every spaceflight entity providing spaceflight activities to a participant, whether or not such activities occur on or off a facility capable of launching a suborbital flight, shall have each participant sign the warning statement specified in subsection B.
B. The warning statement described in subsection A shall contain, at a minimum, the following statement:
"WARNING: Under Virginia law, there is no liability for an injury to or death of a participant of spaceflight activities provided by a spaceflight entity if such injury or death results from the inherent risks of the spaceflight activity. Inherent risks of spaceflight activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this spaceflight activity."
C. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a spaceflight entity from invoking the privileges of immunity provided by this article.
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IMAGE CREDIT: AP (Minotaur I rocket on the pad, Wallops Island, Va. Dec. 2006)
