What Does Risk Mean in This New “Risky Space Business”?

Managing Liability Exposure for Injuries to Crew and Passengers Resulting from US Commercial Space Activities

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In the only analysis of its kind, Dr. Maria-Vittoria “Giugi” Carminati asks the question: if a commercial space operator kills or injures one of its spaceflight participants or a crewmember, what is the extent of the operator’s liability? In the United States, that question has no clear answer. Dr. Carminati explores the way the United States manages liability, at state and federal level, and from state to state.

Tort law in the United States exists at the state level. However, commercial spaceflight and its regulation are creatures of federal law. Understanding how these two systems interact and, often, conflict is critical to understanding how commercial spaceflight operators can manage exposure.

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Maria-Vittoria “Giugi” Carminati, JD, LLM, JSD, is an attorney, an entrepreneur, and an activist. She has published numerous articles on space law as well as co-authored The Laws of Spaceflight: A Guidebook for New Space Lawyers (ABA, 2012).
Acknowledgments
List of Abbreviations

Introduction
1 US Law Trinity: Common Law, Statutory Law, and Contractual Law
2 Utility of the Inquiry
 3Structure of the Work

1 The Risks of Commercial Human Spaceflight
 1 Market Size and Loss Exposure
 2 The Risks of Spaceflight to SFPs and Crewmembers.9
 3 Conclusion

2 A Review of Liability Exposure and Ways to Manage It
 1 The Existence of Liability (Otherwise Known as the Existence of Legally Attributed Accountability)
 2 Parties: Who are the Plaintiffs? Who are the Defendants?
 3 Defenses: Affirmative and Otherwise
 4 Assumption of the Risk, Whatever That Means
 5 Conclusion

3 Federal Legislation and Commercial Space
 1 Commercial Space Licensing
 2 Maximum Probable Loss
 3 Federal Informed Consent
 4 Federal Jurisdiction
 5 Federal Cross-Waivers
 6 What Does “Gross Negligence” Mean?
 7 Conclusion

4 Federal Jurisprudence and Commercial Space
 1 Understanding the Boundaries of Federal Jurisdiction
 2 The Federal Jurisdictional Gap
 3 Federal Preemption of State Statutes
 4 The Nature of Federal Jurisdiction
 5 Federal Contractual Choice-of-Law
 6 Conclusion

5 Federal Choice-of-Law for Disputes Outside Federal Jurisdiction
 1 Federal Supremacy v. State Sovereignty
 2 Federal Law of Torts
 3 Federal Choice-of-law Analyses: State v. Federal, State v. State
 4 Interpretation of Federal Waivers under Federal Law
 5 Conclusion

6 Exculpatory Agreements in Space Friendly States
 1 The Complicated World of “Express” Assumption of the Risk
 2 Waiver-Enforcement for Claims Brought by Heirs: General Overview
 3 Avoiding Claims by Heirs via Statute: Following the Letter of the Law
 4 Waiver-Enforcement between the Injured Party and the Operator Directly: a State-by-State Analysis
 5 Conclusion

7 Express Assumption of Risk in Non-Space-Friendly States
 1 Alaska
 2 Arkansas
 3 Connecticut
 4 Georgia
 5 Hawai’i
 6 Idaho
 7 Illinois
 8 Kentucky
 9 Michigan
 10 Minnesota
 11 Mississippi
 12 Missouri
 13 Nebraska
 14 New Jersey
 15 New York
 16 North Dakota
 17 Ohio
 18 Oregon
 19 Pennsylvania
 20 South Carolina
 21 Utah
 22 Vermont
 23 Wyoming
 24 Conclusion

8 Statutes Limiting Liability for Space Activities
 1 Spaceflight Entity
 2 Participants or SFPs
 3 Spaceflight Activities
 4 The Degree of Culpability Immunized
 5 Statutory Requirements of the Space Activities Statutes
 6 Conclusion

9 Statutes Limiting Liability in Space Friendly States
 1 Arizona
 2 California
 3 Colorado
 4 Florida
 5 New Mexico
 6 Oklahoma
 7 Texas
 8 Virginia
 9 Conclusion

10 Implied Assumption of Risk in Space Friendly States
 1 Defenses in Tort: Contributory Negligence, Assumption of the Risk and Comparative Negligence
 2 Assumption of the Risk’s Vexed Jurisprudence
 3 State Law’s Continued Relevance
 4 Conclusion

11 Medical Malpractice Suits against a Commercial Space Physician and the CHSF Operator by Co-employees and/or SFPS
 1 Sources of Liability for CHSF Operators Employing CHSF Physicians
 2 The Sources of Duty between the SFP /Crewmembers and CHSF Physicians: a Question of Scope
 3 Physicians and CHSF Operators: Why have a Physician at All?
 4 Crew and SFPS —Different Roles, Different Statuses
 5  SFP s and CHSF Physicians
 6 The Physician as an “Agent” of the Commercial Spaceflight Operator
 7 Crewmembers and the CHSF Physicians: Co-employee Immunity
 8 Conclusion
Conclusion
 1 The Phases of Spaceflight
 2 Navigating the Fragmented Landscape of US Jurisprudence
 3 The Federal Framework: From Federal Legislation to Federal Common Law
 4 Express Assumption of the Risk: Drafting is Key!
 5 Space Activities Statutes: What is Left after the Dust Settles?
 6 Muddling Through the Defense of Implied Assumption of the Risk
 7 What’s Up Doc? Aerospace Medicine Physicians within the Spaceflight Framework
 8 Closing Remarks

Bibliography
Appendix
Index
All lawyers, business leaders, physicians and legislators seeking to work in or advance the field of commercial spaceflight, both in the United States and worldwide.