California Legislators Water Down Spaceflight Informed Consent Measure

By Douglas Messier
Parabolic Arc Managing Editor

California legislators have significantly watered down a proposed law that would have held human spacecraft operators, manufacturers and suppliers not liable for injuries or deaths sustained by passengers if the participant signed an informed consent agreement acknowledging the inherent danger of their flights.

Under amendments to the bill, companies would have “limited civil liability” even if they were not grossly negligent or intentionally caused injuries. Legislators have also removed vehicle manufacturers and component suppliers from coverage under the measure.

The original bill was written to protect spacecraft operators, builders and suppliers from lawsuits that could drive them out of business. The emerging commercial space industry argues that the strong liability protection is necessary at this stage because the activity is inherently dangerous.

Under the measure, a company would not be liable for injuries or deaths unless it:

(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.
(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
(e) Nothing in this section 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.

Those conditions remain in the bill. However, legislators have narrowed the scope of what entities are protected. in May, the House removed the following section of the bill protecting vehicle manufacturers, component suppliers and service companies:

“Space flight entity” shall also include a manufacturer or supplier of components, services, or vehicles that have been reviewed by the United States Federal Aviation Administration as part of issuing a license, permit, or authorization pursuant to the federal Commercial Space Launch Amendments Act of 2004.

Last Tuesday, the Senate removed the “no liability” provision from the measure. Under the change, spacecraft entities would have to warn participants that “there is limited civil liability for bodily injury sustained as a result of the inherent risks associated with space flight activities.”

As a result, injured passengers could sue even if they signed the waiver and the companies involved were not guilty of gross negligence, wanton disregard of safety, intentionally caused harm, or ignoring dangerous conditions.

Senators also removed an entire section of the bill which focused on the rationale behind the law, which is to place California on equal footing with other states that have passed informed consent legislation.

The Legislature finds and declares all of the following:

(a)California has a long tradition of pioneering aviation over the last century, and human space flight since the Apollo era.

(b)California was the site of the first private human space flight event. This achievement resulted in the winning of the Ansari X Prize in Mojave, California, in 2004.

(c)Over the past few decades, California has lost much of its human space flight industry to other states, such as Alabama, Colorado, Florida, New Mexico, and Texas.

(d)The human space flight business in California continues to struggle due to the poor business climate in general.

(e)Human space flight is a young industry reminiscent of other industries in which the hazards were understood, but which would not have thrived in an inappropriately litigious environment.

(f)The States of Florida, Texas, and Virginia have acted to relieve the business risks associated with new and well-financed companies that provide human space flight by passing legislation limiting the liability of such providers, and the States of Colorado and New Mexico are in the process of passing similar legislation. Consequently, these states will become a magnet for human space flight companies currently doing business in California.

The measure was introduced by Assemblyman Steve Knight (R-Antelope Valley) in February. Officials of the Mojave Air and Space Port have strongly backing the law, arguing that it is necessary to keep aerospace companies from fleeing California’s unfavorable regulatory, tax and legal environment.

The High Desert spaceport has two companies, XCOR and Scaled Composites, that are developing Lynx and SpaceShipTwo, respectively, with the intent of sending tourists and researchers aloft. The Spaceship Company also has established operations in Mojave, where it is building WhiteKnightTwo and SpaceShipTwo vehicles for Richard Branson’s Virgin Galactic company.

Mojave spaceport CEO and General Manager Stu Witt said last week that the goal remains to pass the law this year despite what he views as negative changes. He hopes that Knight, who is running to replace the retiring Sharon Runner in the California Senate, will be able to strengthen the law next year.

Witt has been building regional support for the measure. On Aug. 4, the Mojave spaceport and XCOR co-sponsored Aerospace Appreciation Night during a game of the Lancaster JetHawks, a local Minor League Baseball team. Witt said he was able to talk to officials from Raytheon, Lockheed Martin, Northrup Grumman and other companies during the game.

To view the bill and the amendments, click here.