Guigi Carminati - Welcome to "Managing Commercial Human Space Flight Liability," which is an advanced space law course. My name is Giugi Carminati, and I have a doctorate in space law, as well as in LLM in space, cyber, and telecommunications law. And I look forward to sharing this next hour with you. The question we're going to answer today, or at least attempt to answer is who decides whether, and to what extent, space flight participants can recover from commercial human space flight companies for injury or death. And the way we're going to do that today is through a little hypothetical.

Once upon a time, Jane Plaine was very excited. She just found out she was going to fly on a sub-orbital flight by Gets Around sub-orbital flights, the airplane trip to the launch side. The day before the sub-orbital flight had been really long, about 14 hours, but Jane had taken a sedative and just slept for the entire plane, right? So she felt pretty rested. The flight had been offered by Gets Around sister company, Fast Flying, and all the other space flight participants had flown together from the last day of training to the launch site. Finally at 10:00 a.m on the day, off, she took off alongside the other participants, it was amazing. Jane felt mostly fine during the entire trip and seemed elated when she was done. That evening, Jane participated in a small reception for SFPs, Space Flight Participants and their families. Food was catered by one of Gets Around service companies. Although Jane had communicated all her allergies, at one point, she thought she tasted something she wasn't supposed to eat in her dish. No matter she thought, let's not ruin the moment. At night, Jane went to the home. She and her family had rented for the weekend. She went to bed by her husband's side. She didn't tell anyone, but during the evening, Jane had begun developing a chest pain and difficulty breathing, maybe it's just the excitement from today, she thought before she took another sleep aid and went to bed.

The next morning she was dead.

Can Jane's family recover from Gets Around? Well, first, let's talk a little bit about the fact that there are three things we're gonna be looking at today, right? We're gonna be looking at what is fault? What is responsibility, and what is liability? Those are three very different concepts. Fault is a layman's term of referring to something that makes another thing happen. But sometimes you may feel at fault for something, but really the relationship between cause and effect is pretty attenuated. So while you may feel at fault, you're not legally responsible. The question then comes to what is responsibility? Well, responsibility is something you were supposed to take care of and you didn't take care of, right? And then there's liability. Liability is illegal created concept of who is going to be held responsible, who is going to be found at fault. And it's not the same thing. And as an attorney, you probably already know those are very different concepts. So let's say that Jane's attorney or Jane's family attorney writes a letter to Gets Around Suborbital Flights. What are they going to answer? Well, they're gonna come up with one of four answers, and we know them as lawyers. We learn these in law school.

The first answer is going to be, well, stuff happens, right? And that's a factual scenario. That's a factual response, look, okay, bad things happened, and that's just the way it is, but it's not our responsibility. There's no legal connection to our conduct. The next one is we didn't make any mistakes and that's more of a factual inquiry, right? What did they do? What did they not do? Did Gets Around commit errors that it could be held responsible for, that led to Jane's death. The next response is you can't prove negligence. Now that is a legal fiction, right? Because it's not saying they didn't do anything wrong, it's not that they didn't do anything that caused Jane's death, is that they didn't do anything that meets the four elements of negligence, such that you can prove negligence. Number four, Gets Around could argue, "Hey, Jane signed a waiver. She signed a contractual release and pursuant to the terms of the release, your family cannot sue us for what happened to her." And then there's implied assumption of the risk, which is yet another legal fiction, right?

But as implied assumption of the risk is a common law doctrine by which an individual engaged in an activity and impliedly assumed the risks thereof, and I am oversimplifying that doctrine. Now we're gonna talk a little bit more about that later on. It gets very complicated. So the first thing you're gonna wanna ask as an attorney is, does federal or state law apply? Well, that's when we're gonna start talking about what I like to refer to as the US Legal Trinity, and the US Legal Trinity, is this relationship there is between statutory law, common law, and contract law, right? These are the three ways that under US law, you will find authority to determine who is going to be held responsible for what happened to Jane.

So, let's take a little wander first and talk about statutory law. Well, there are a number of states, which in my master's thesis, and then later in my doctoral thesis, which is what resulted in my book, which is "Managing Liability Exposure for Commercial Human Space Flight Participants," I identified what I would call space friendly states. And these are states that passed space activities statutes, and these are statutes that were meant to somewhat protect the commercial human space flight operators that avail themselves of the laws under those particular states.

And at this point, of course you notice we are talking about state level law. Okay, the states in particular are Arizona, California, Colorado, Florida, New Mexico, Oklahoma, Texas, Virginia. When you're looking at these space activity statutes, there are pieces of their anatomy that you're gonna be looking at to try to understand them. And what I did is that I identified these pieces of their anatomy. And then I broke them down to try to compare them to each other, right? Like if there's a head, you compare it to the head, the leg, to the leg, the arm, to the arm, right? So you can understand how these space activity statutes are same and how they defer from each other. So the things that I looked at were, first, how did they define a space flight entity? Because on paper, those space activity statutes are supposed to apply to space flight entities, but how they define them can actually be different.

It can be the licensee, so the person who actually got the license from the FAA to conduct the suborbital flight, it can include the subcontractors, contractors, and service providers of that licensee, which as you can see, as you can understand, would significantly expand the envelope of protection that that statute is offering. I also looked at how the statutes defined space flight participants, space flight activities, and that is very important. What consists of a space flight activity actually is not identical for every space friendly state. And this is where a lot of the analysis ended up taking place in my thesis and where we're gonna focus on a bit of this presentation.

The next one is the other very important piece of these space flight activity statutes, and that is the degree of culpability that they protect from, right? So if an operator is operating in Texas and they manage to avail themselves of the space activity statute in Texas, are they allowed to claim that they are immune from liability for their own negligence, for their own gross negligence? And for their willful acts? Of course not, right? I'm jumping right in right away. None of the statutes protect for willful acts, but negligence and gross negligence, there's some wiggle room there. And then I looked at what the statutory requirements were in each of the states, right? What did it operator have to do in order to avail themselves of the protections of that statutes?

So, let's first start with definitions of space flight entity, Arizona, Colorado, Florida, and Oklahoma took the most broad definition of a space flight entity. And that is consistent with federal law. And it's basically anyone that was reviewed by the FAA during the licensing process, fine, California took a very narrow view of a space flight entity and only included license holders, right? So just the person who is licensed. So in this case, it would be just Gets Around. And then New Mexico had a kind of in between option, and in New Mexico, space flight entity under the statute is defined as the license holder and manufacturer or supplier of components, services or vehicles, right?

So it's not everybody, but it's more than just the licensee. The next definition that I looked at was the space flight participant, no surprises there, actually everybody, all the states just used space flight participant is the same as that defined in federal law. Federal law, super excitingly defines it as anyone on the flight that is not crew, boom, that's easy, done. Activities, okay, so California, Colorado, Florida, Virginia, Oklahoma defines space flight activity as launch and reentry. Okay, but Arizona, Texas, and New Mexico defines space fight activities as including training prelaunch activities on orbit events and post reentry procedure, including crew and space fight participant recovery. That's very broad. And if you've watched my first lecture, the 101 Space Law, you will immediately notice, "Hey, wait a minute, federal law, the FA does not have jurisdiction over on orbit activities, right? And California, Colorado, Florida, Virginia, Oklahoma, are consistent with that in that they're not claiming that space flight activity includes on orbit activities, but Arizona, Texas, and New Mexico have stepped out of that zone and said, wait a minute, anything that's on orbit, we're gonna have jurisdiction over that. Even though the FA, the US federal government actually does not have jurisdiction over that particular segment of the flight. Okay, here is where things get pretty complicated. And you may wanna spend some time looking at this chart.

So, the way the chart is set up is that I'm looking at whether or not the degree of culpability is immunized, in the sense of is the operator protected, right? So, Arizona does not define the degree of culpability, which is actually a key to its survival. And we're gonna talk about that later, 'cause there's gonna be a big question of preemption and Arizona probably survives in part because it does not pin itself to a degree of culpability, but all the other states have degrees of culpability in there. So for instance, Colorado, Florida, New Mexico, the operator is probably not protected for their own negligence. And which begs the question, if you're not protected for your own negligence and you're not protected for what you knew or should have known, what are you being protected from? And this is actually unfortunately the result of a law that came to be for one purpose and then was basically negotiated out of existence on paper, but allowed to pass, even though it no longer achieves the goals that it was set out to achieve. In Texas, Virginia, Oklahoma, and California, an operator which availed itself of the space friendly statute in that state will in fact be protected for its own negligence, and will probably be protected for what they knew and should have known, but will not be protected for gross negligence. And obviously, will not be protected for willful and want, which is pretty standard in US common law.

But all of this was before 2015, and in 2015, the federal government passed the Competitiveness Act. And I was in the middle of writing my thesis and the law changed completely, and I had to start over. And now we're gonna take a little detour through federal law. This was gonna be a quick review for those who took my Space Law 101 course, and then we're gonna delve into how the law changed and how that impacts the landscape. So the US constitution gives the federal government jurisdiction over interstate travel, right? And so Congress took over that power as the legislative branch and enacted the United States code, but it then needed one of the executive agencies to take over the United States code and translate into federal regulations so that it could be enacted and enforced. And so the federal aviation administration is actually the agency that is in charge of space flight activities in the United States. And they do so through the code of federal regulations. And the FA does not have infinite jurisdiction. The FA has jurisdiction over launch, reentry, and launch sites. It does not have jurisdiction over on orbit activities, pre-launch activities, and post reentry activities. So let's talk about the Competitiveness Act. It was passed in 2015. And under 51, USC 509114, the federal government gave federal jurisdiction over space flight activities and disputes arising there from, so the language is federal jurisdiction, any claim by a third party or space flight participant. So are Jane Plaine and her family, for death, bodily injury or property damage or loss resulting from an activity carried out under the license, the FAA license shall be the exclusive jurisdiction of the federal courts. Snap, no more state courts interpreting those space activity statutes.

But what we're gonna focus on today is the second part. Under 51 USC 50914, cross waivers became mandatory between commercial human space flight operators and space flight participants. And that was not the case until 2015, which means that we now have an overlay over our Trinity of state law, state common law, state statutory law, state contract law, we now have to overlay federal common law state, sorry, federal contract law and federal statutory law because there is, one, federal jurisdiction and, two, federal cross waivers. So how are we going to interpret those under state law? No, we have a big issue of preemption. And so the next question that I had to pose myself was how much of the space activity statute survived? So let's take just a minute to talk about preemption. Under Roth v. Norfalco, this is of course preemption has existed a long time. I just liked this language from 2011, the Constitution's Supremacy Clause elevates federal law above that of the states providing Congress with the power to preempt state legislation, if it's so intense. Okay, clear, right? No, not at all. Aaron O'Connor and Larry Stein, fantastic scholars wrote this great article only in 2013 where they wrote preemption doctrine is plagued by both indeterminacy and incoherence. These problems likely reflect the inevitable tension in a federal system between the appeal of having one clearly applicable federal policy and a commitment to preserving state and local sovereign authority. So, what are we gonna do? Well, let's talk about what preemption looks like. First, there's not one type of preemption, there's three.

There's express preemption, field preemption, and implied conflict preemption. Express preemption is when the federal government says, this is our sandbox and the states don't get to play in it. Okay, the second one is field preemption, where the federal government doesn't say that, but where they create laws that are so overarching and so thorough that they are basically taking over the field, right? There's no space left for the states. And then there's implied conflict preemption, and this is somewhat reductive. But for purposes of this lecture, think of it of, if someone cannot comply with both state and federal law, then federal law is gonna win. So the Competitiveness Act actually has a clause, and it's a preemption clause. The first one is, the first part of 51 USC 50919C says, that a state or political subdivision of a state may adopt or have an effect, a law regulations standard or other inconsistent or order, sorry, inconsistent with this chapter. That is the express clause. That is the federal government saying, this is my sandbox, but then they add, but may adopt or have an effect, a law regulation standard or order consistent with this chapter that is in addition to, or more stringent than a requirement of regulation prescribed under this chapter. This is traditionally called a savings clause, which is meant to say, okay, this is our sandbox, but you can play in that corner, right? Or you can play with us according to these rules.

So I did what any lawyer or would do. I ran case law and article searches, and guess what? Zero case citations for that language, as it is expressed in the express clause, zero case law with language as reflected in the savings clause. And there are two articles which are by Blas and Game and Schaffer. And Professor Schaffer was on my thesis committee just to indicate the fact that there is no clarity and that there is no answer about what the government meant and how we're supposed to apply it as practitioners, and certainly no guidance as to how judges are going to have to apply it when they have to interpret it.

So let's talk a little bit about field preemption. When federal regulation in a field is so pervasive as to make reasonable, the inference, that Congress left no room for the states to supplement it. And that's from Drake v. LabCorp of American Holdings, and that is a 2003 case, but there's a savings clause, as I've mentioned, and O'Connor and Stein's date, by including a savings clause, Congress made it clear that it intend for federal and state law to continue coexisting. But what does that mean for space law? The next type of preemption is implied conflict preemption, which I touched upon earlier, and implied conflict preemption applies either way. It is impossible to comply with both state and federal requirements or where the state stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.

All right, so there are compliance issues, right? State, if you look at these basic statutes and you look at the Federal Competitiveness Act, what we're going to look at, right? The analytical framework to understand whether there is implied conflict preemption is what do the state space activity statutes require of the commercial human space like operators and what they give the commercial human space flight operators in return in terms of degree and scope of immunity? So the first topic that I looked at was the entity. Under the Competitiveness Act, the waiver, the mandatory cross waiver has to be signed, has to release of liability, the licensee, the contractors, the subcontractors, and the service providers. And that is actually overall consistent with the space activity statute. So with respect to the entities that they cover, you can't really argue that there is conflict preemption because they're consistent with the exception of California. And I would submit that the argument can be made, that there is a conflict between California and the federal law because federal cross waiver evidently was meant to provide broader protection than the California Act.

 So under that analysis, I would say that the California Act is probably preempted and no longer effective. The next thing that I looked at was activity, right? And I've already mentioned it, but I'm gonna mention it again. The FA has jurisdiction over launch reentry and launch site. The space activity statute have self appointed jurisdiction over different types of activities and different phases of a sub-orbital flight. So that is where we're gonna spend some time analyzing and discussing. The next thing that we look at is the definition of space flight participant, which is the same across the board. That's easy to take care of. And then we're gonna look at degree of culpability.

Okay, so here's something that's interesting. The federal government did not actually tell us what the waiver should look like. And the reason that is peculiar is because it did do that when the waiver was between the US government and the space flight participant, there is actually a template out there that is a form, it's in the appendix to the FAA regulations, but there is no such thing for space flight participants. So the best thing to do as a practitioner would likely be to take that waiver between the US government and the space flight participant, and then just apply it to the contractor as well, sorry, to the operator, the contractors, the subcontractors, everybody down the line. And that's usually referred to as a waiver with a flow down of provision.

If you look at that template that was created for US and space flight participants, the waiver is very broad and it immunizes against liability for all degrees of culpability except willful misconduct, but under federal law, willful misconduct includes gross negligence because if you've ever had to look at this and I've done this, there's no actually definition of the degrees of negligence in federal jury patterns, because as Dobbs says it in his treatise, there is no federal torque law, it just doesn't exist. And so you're trying to look at the tea leaves, and there is a little bit of case law that says that willful misconduct includes gross negligence. And then you have to try to understand, well, hold on, does gross negligence at the federal level, do those words mean the same thing as gross negligence in each of those space friendly states? And if that is the case, then is the waiver inconsistent with federal law or are they consistent with each other? Are they immunizing the same degree of liability or are they not? And this is what I ended up with, in Arizona, because there is no definition of that degree of culpability, and because Arizona has such a broad definition of what consists of space flight activity, it's probably not preempted. If you look at California, the operators are protected for engaging in negligence. And then newer should have known is not a term that's used. They're not protected for gross negligence and they're not protected for willful unwanted conduct. Okay, so if under federal law, willful misconduct means gross negligence. And if gross negligence under federal law means same thing as it into federal law, that it does under California law, then we're good, right? You are protected to the same extent for the same degree of culpability.

Under Colorado, you are probably as an operator, not protected for your own negligence and you're not protected for what you knew or should have known. And if that's the case, then this is inconsistent with the federal waiver. And therefore, I would argue that the competitive snacked with its mandatory cross waiver preempts Colorado space activity statute, the same logic applies to Florida and to New Mexico, right? If you are not protected for negligence or actions where you knew or should have known of the risk, then that is inconsistent with the cross waiver, which based on the language for the template we found protects an operator for everything up to, but excluding gross negligence. In Texas, you, an operator would be exempt from liability. Would be protected from liability for negligence and what you knew or should have known, and not for gross negligence. And then willful unwanted is not mentioned. And the same thing largely is true for Virginia. You're protected for your own negligence and you are protected in Oklahoma from your own negligence, if you're an operator. And so the conflict preemption would knock out Colorado, Florida, and New Mexico, but now the other states only on the issue though, let's be careful, only on the issue of the degree of culpability, 'cause that was where I started, because that was gonna be the big crux, right? The big battle, how much protection am I getting? And am I getting less protection if you put me under state law? And if the answer is yes, as an operator, I get less protection under space law under state law, then federal law should apply, I'll certainly argue it does apply. And I would have probably a very good argument about preemption.

The next piece of the analysis for me was looking at the definition of space flight activities, right? So, I said this to you earlier, that California, Colorado, Florida, Virginia, and Oklahoma limit their space flight activity statute to applying to launch and reentry. Arguably, there is field preemption, arguably because the federal government has jurisdiction explicitly over launch and reentry. And it has passed a law that not only says that there is a mandatory cross waiver, but that there is federal jurisdiction over disputes arising from space flight activities, then there is a good argument that those states' statutes, regardless of the language, regardless of what they say or don't say are out, they're done, but Arizona, Texas, and New Mexico would survive under these space flight activities definition analysis, because they include training pre-launch activities on orbit events and post reentry procedure, including crew and space flight participant recovery.

All right, so let's take a moment to think about Jane Plaine, right? Jane Plaine was on a 14 hour flight before she got to the launch site, and it was a flight that was given to her, that was offered to her and all the other space flight participants by Gets Around. And it was condemned by a sister company of Gets Around. If it was part of the training and the training was part of what was disclosed to DFA, which it most likely had to be, then there is an argument, right? That if what killed her, and obviously I put a lot of red herrings, but if what killed her is a pulmonary embolism from a very long fight during which she took meds, fell asleep, and didn't move for 14 hours, then there is a good argument that even though it wasn't the actual sub-orbital flight that hurt her, Gets Around is responsible because they were in charge, right? Well, let me rephrase that, 'cause I just tricked myself there. They are liable because they were responsible for that flight and the conduct of that flight is part and parcel of their activities, okay? And the same is true for post flight activities, if she, for example, had an allergic reaction to the food, right? She disclosed her allergy, they fed her something she wasn't supposed to. The company is a sister company of Gets Around, a subcontractor, right? And if they're the ones that harmed her, this is a post reentry activity 'cause it's a party everybody is there, and it's organized by the operator.

So while federal law would say that's none of my business anymore, because what happens before the launch and after reentry is not under federal jurisdiction, it may well fall under a space activity in the states like Arizona, Texas, and New Mexico. And it may therefore fall under the state statute, and this is a very long, and because it is a complex question, which is a long way to say that while federal law may have been the one governing the relationship during the launch and the reentry, if the operator availed itself of space activity statute under Arizona, Texas, and New Mexico, actually under Texas and Arizona, and I'll remind you why in a second, then they may have an argument that there is immunity, but only if they were able to avail themselves of a space flight activity statute under those two states. And the reason I excluded New Mexico was because you remember, but I'm gonna remind you if you don't, that New Mexico got kicked out on the issue of degree of culpability, right? That's preempted.

So the only two states that survive the preemption analysis when the dust settles are Texas and Arizona. So what does it look like? All right, this is a diagram of what I was explaining earlier. And this is for an orbital trajectory, which is gonna be different from a suborbital trajectory, which is the subject of our hypothetical. But hang in there with me just a second, right? So if you are looking at an orbital trajectory and the activities go from screening to training, testing, launch, on orbit reentry, crew recovery, and post flight assessment, right? You would have Texas and Arizona's basicity statutes governing the screening training testing, part of the orbital trajectory. You would also have any liability waivers that were entered into, right? Contracts would still apply, and you would have state common law. Okay. If you're launching out of a state that is not Texas and Arizona, you're still gonna have state common life issues, right? Well, did you put them on the flight that was 14 hours long knowing that there was a risk, it would cause a pulmonary embolism?

Yeah, well then, maybe you're liable, right? It's probably your fault, but it's also maybe you're liable, and obviously, a defense or trainee would argue, well, she's the one who decided to make her to put herself asleep and not follow directions about getting up and walking around and taking care of yourself, so on and so forth, okay. During the launch, the operator and the space flight participant's relationship is governed by the mandatory cross waiver. That's easy because now you have Competitiveness Act and you have preemption of the field, then you have, and sorry, and also implied conflict preemption, right?

Okay, on orbit, you would be subject to international law. You would still be subject to state common law. There's no reason why state common law doesn't apply to a citizen of California who decides to go on a sub-orbital flight. And then you would be subject to optional waivers, whatever waivers or express assumptions of the risk the parties enter into, whatever contract they entered into waving claims by the participants and their families. And then when you reenter, you're back under mandatory federal cross waivers, and after reentry, you fall back into the lap of Texas and in Arizona space activity statute, if the operator chose to avail themselves with them, liability waivers and state common law. And for sub-orbital trajectories, you're looking at something very similar. You're looking at the same thing in the pre-launch, Texas Arizona space activity statutes. If the operator chose to avail themselves by following the requirements of those statutes, there's liability waivers state common law, then you're under mandatory federal cross waivers for the launch and the reentry. So verbal trajectory because its suborbital, does not have an orbit component. And then after reentry, you're back under Texas and Arizona space activity statutes, if they avail themselves of them, liability waivers and state common law, which creates a bit of a Swiss cheese situation when figuring out what law applies to what.

So what's left to look at? Okay, well, contracts and common law. Under contracts, there's two things to look at. First, the federal mandatory cross waivers that we've discussed, and second, waivers under state law. What are the requirements for the waivers? When are they enforced? When are they not enforced? Similarly, you're gonna wanna look at common law. As I told you, according to Dobbs and his treatise, there is no federal law of torts. So if you're looking at common law, you are basically going to be looking at the doctrine of assumption of the risk across the states. If you doubted me, here is my citation, the law of torts, section 136, there is no general federal law of torts. Okay, federal common law of torts. All right, so let's talk about express assumption of the risk. Contractual waivers, that's a pretty broad inquiry, right? And in my treatise, I actually looked at express assumption of the risk, which is another way of call it, of referring to waivers in jurisdiction all over the United States.

But for now, let's look at the eight space friendly states, okay? First, there's going to be common factors that courts look at basically across the country. And these are very well summarized in this particular quote, the areas of controversy include whether there were gross disparities between the party's bargaining power, whether the agreement was freely and fairly made, whether the agreement applied to the defendant's alleged misconduct, and whether the activity is one involving the public interest. All right, so if we break these down into a multifactorial test, as we learned in law school, you're looking at knowledge, you're looking at power, you're looking at how society feels about it, and you're looking at whether it applies to the activity. Okay, so for space flight and space activities, what we're talking about is this. Under knowledge, the parties will be looking at the informed consent process, which is mandatory under federal law.

In order for an operator to fly a space flight participant, they have to go through an informed consent process and there are six particular topics that have to be covered. And so the breadth, the understandability, the clarity and how this conversation is memorialized are going to be critical to the analysis of whether there was full knowledge, right? Full appreciation of the dangers that were being undertaken. Next, the question of power, is actually going to be in my opinion, and obviously, there's no analysis of this, not very complicated because you're dealing right now at this time, the way the industry is happening, you're dealing with high net worth individuals and CHSF operators, right? So you're dealing with people who have lawyers, who have accountants, who have doctors, who have everything they need to really understand and be able to negotiate and bargain and push back if there's conditions that they don't want. And then society, well, the question are, is this what society wants or needs? Does the government agree with these agreements? Are they somehow unlawful? And here, preemption is a big, big light going, just blaring, just the sound, br-br-br. There is no way that someone will be able to argue that waivers in a space flight activity context are not what the government wants, are not what society wants, why? Because the federal government made the mandatory. So evidently, there is a will to create immunity, to protect the operators from at least a certain degree of liability.

So public interest I think, is basically done with the enactment of the Competitiveness Act. And then there's a question of inheritance, is the danger inherent? Does it matter? Well, in California, it doesn't, this would take a whole other lecture to discuss inherent and what's considered inherent and what's not considered inherent. And what parts of an activity are considered as naturally creating risk and what are not. So in California, the inherence doesn't matter, but in Texas it does, because in Texas, everything that is inherent to the activity basically falls under the activity. So if you're immunized for anything that is related to the activity, it includes anything that's inherent in the activity. I mentioned this, and now we're gonna delve into it a little bit more. The issue of preemption is big.

So I've talked to you about appendix E, not by name, but now you know it's appendix E of CFR part 440, and this is the language I was referring to. This is the language between the government and the SFP, which I am assuming will be the one that practitioners will want to apply between the SFP and the operator, and appendix E says, space flight participant shall hold harmless, the United States and its contractors and sub-contractors for bodily injury, including death or property damage sustained by space flight participant from licensed permitted activities, regardless of fault. Okay, but hold on, regardless of fault, except it's in a different section of the appendix, to the extent that as provided in section six B of this agreement, claims result from the willful misconduct of the United States or its agents. Okay, so I was trying to interpret a federal waiver and I was trying to understand what does it have to look like? What would I try to challenge it with?

If I was trying to say, I didn't want it to apply, right? If I'm Jane Plaine's lawyer. So what I looked at were federal waivers under maritime law, because they're the closest you get under federal law to this kind of scenario, and under maritime law, a pre-accident waiver absolves the defendant of liability for recreational activities on navigable waters. If the exculpatory clause is clear and ambiguous, is not inconsistent with public policy, and is not an additional contract. Well, if I were to apply these criteria to a space flight waiver, I would not have a good argument as to any of them. I'm gonna start from the bottom. Is it an addition contract? When someone pays a quarter million dollars to take a sub-orbital flight, it's not an initial contract. They're making this as a completely optional event, right? And as I said, they're high net worth individuals who have the power and ability to negotiate or fight back or review what they wanna do about this or not do the flight at all. Two, is it not inconsistent with public policy? Well, any defense attorney worth the result would say, how can it be inconsistent with public policy if it's the one that's contained in appendix E of the FAA regulations, right? Yeah, not gonna win that argument. And third, clear and ambiguous, well, there's a little wiggle room there, but if someone has gone through the informed consent process and then there is language that says that you are immunized, except, regardless of fault, that's a big, broad wording. And then in field, regardless of fault, except for willful misconduct, I think it's hard to say that it's unclear or somehow ambiguous about what it is that they're releasing. So if I were to look at this federal waiver and I would, well, we're gonna use the same one for space flight activities, I would say, you know what? More likely than not it's gonna be upheld.

So the next thing I would look at, right? So remember when I looked at that little chart, right? If we've wanna look at it again, I now understand that likely if the fault, right? If the responsibility happened during the launch in the reentry, and there is, as there is supposed to be a federal mandatory cross waiver in place, it's going to be very hard to prove liability. So the next step would be to take a step back and say, okay, but what if the thing that hurt my client happened pre-launch or post reentry, and what if we're not under Arizona and Texas statute, right? We're just under good, old fashioned common law. Then what you would fall back onto is assumption of the risk, right? The operator would say, look, they assumed the risk. This is how the argument would go. Here's a cross waiver, right? 'Cause cross waiver applies. You can make it apply to the entire activity. It doesn't have to be limited, right? The FAA only has jurisdiction of a launch and reentry, but you can write up the contract to say, and by the way, this regardless of fall, language applies to all of it, everything at all times, okay. If that fails, then the last resort is saying, look, under common law, there is an assumption of the risk. You decided to put yourself on a suborbital flight. You understood there were risks, okay? Jane Plaine family, I'm so sorry, but she got on a plane. She understood what was gonna happen, she put herself to sleep for 14 hours. And then she got on the sub-orbital flight and then she ate something funny and she didn't tell anybody about it, and she went to bed. Throughout, you try to make the argument that throughout those things, she just assumed the risk of what she was doing.

So what does it look like, right? What does assumption of the risk that I keep talking about? Well, assumption of the risk is the norm when you're referring to this doctrine we're talking about, but there are anywhere from two to six types of assumption of the risk in the US. And I'm gonna define it broadly, but just keep in mind that this is a very reductive definition and you can absolutely find a variety of ways that courts have defined this concept, this doctrine, which is why I'm referring to it as last resort. Assumption of the risk means that if someone does something dangerous and sufficiently appreciates the risk it entails, then get hurts for or dies in the process, when they are their grieving family sue the operator, the operator can argue that the participant assumed of the risk of the activity and can therefore avoid liability.

And there has been difficulty with this for a number of reasons. One of them is that it's very difficult to incorporate into the comparative negligence framework. And therefore, that difficulty means that even though assumption of the risk is how it's normally referred to nowadays, it's actually going away as a doctrine because it's so difficult to incorporate into comparative negligence, which is what is actually taking over now. Just as Frankfurt of 1943 wrote this great sentence, which I found, and it's actually at the front of my master's thesis, 'cause I thought, well, that's the answer, right? Kind of, the phrase assumption of the risk is an excellent illustration of the extent to which uncritical use of words, but doubles the law. A phrase begins the life as a literary expression, its felicity leads to its lazy repetition and repetition soon establishing it as a legal formula, undiscriminating used to express different and sometimes contradictory ideas. And that's true. According to most commentators and a growing number of courts, the tort of doctrine of assumption of risk should be abolished. That was 1987. It hasn't happened yet, but as I said, it's just getting really complicated to include it in the way courts now handle negligence.

So there are two types of assumption of the risk. The first one is primary assumption of the risk. And this says that there is no duty to protect from risks that if removed would fundamentally alter the activity. Okay, but still there is a duty not to increase risks beyond those inherent in the activity. Inherent risk is really, really hard to define when you are dealing with something like commercial human space flight. And I'm gonna tell you why, because we don't have a lot of information about the risks of suborbital flights. The data that we have is for a very small group of individuals who are professional astronauts, who were trained to do this, and who had a certain level of physical fitness before they engage in these activities. We are now taking people from the public, right? With whatever underlying conditions they have, underlying health issues, underlying limitations, and taking them up for a suborbital flight.

 So while we understand some of the risks, we don't understand all of them. And so there's a question about how well can you really explain what is inherent and what is not inherent, right? So that's one thing that comes up for the aerospace community. But I wanna spend a little bit more time explaining to you these two concepts. So there's no duty to protect from risks that if removed would fundamentally alter the activity, I'm gonna give you an example. There was a case about a motorbike, right? So a bike ride, but it was motorbikes in California, and someone got hurt. I think one of the bikes fell over and then it made other bikes fall over. And that was an accident and people got hurt, and the court said, yeah, the whole point of a motorbike is that you are balancing on it, right? You can't make the motorbike safer in that respect and still call it a motorbike. And also it was like a bike parade. And so the plaintiffs were saying, well, that was really dangerous to have so many people altogether are doing a bike parade. And the court said, yeah, but if you remove the element of parade from a bike parade, then it's not a parade anymore, right? I can't remove that element of risk and still engage in the activity as it is, okay? And we're not talking about an activity that is so dangerous that it shouldn't be done ever, ever, ever, ever. That's what they mean when they're saying, look, I can't make the activity safer and still call it that activity, but what about the second part, right? How do you have a duty not to increase risks beyond those inherent activity? There's a good Colorado case about that. So, there were some skiers and I believe that they were maybe employee that built a jump and they had, people were jumping, taking the jump and then landing, and the difference between not making something more dangerous than it needs to be and allowing something to be as dangerous as it has to be, is this is a really good example. If somebody takes the jump and lands bad and hurt themselves, that's an inherent risk of jumping, right? I can't make the jump safer and still call it a jump. That's just what it is.

But, and this is what had happened in that case, if there's a piece of snowplow equipment that is left under the snow at the landing zone and somebody lands and hurt themselves on the equipment, then what hurt them is not the jump, what hurt them is the equipment, right? So the equipment made the activity more dangerous unnecessarily so, and in a way that is not required for that activity to take place, that is where you're looking at primary assumption of the risk, there is no duty to protect from the risks, that if removed would fundamentally alter the activity, but there is a duty not to increase risks beyond those inherent in the activity, right? So primary assumption of the risk, and this is really the thing that the first time I understood it caught my attention. Primary assumption of the risk actually has nothing to do with assumption of the risk, it has to do with the existence and the extent of duty, that's primary assumption of the risk. Secondary assumptions of the risk is what we more traditionally, and I think what you would've understood as assumption of the risk when you came into this lecture, secondary assumption of the risk is, look, the plaintiff knew of a risk and fully appreciated that risk, and still chose to undertake the activity.

So the common understanding requires an inter plaintiff to knowingly and freely expose him or herself to a risk of harm, which takes us back to inherent risk, right? It is what happened to them, a risk that they understood, right? Knowingly, and that they freely expose themselves to that risk. So what's an inherent risk? And this is where I get on my soapbox for just a few minutes, because fault may or may not be a fact, but it doesn't automatically have legal significance, right? Someone can be at fault for something, but they may not be legally liable. Liability is a fiction. Liability is the satisfaction of the four elements of negligence, right? Duty breach, two types of causation damages. And that is a fiction, right? It is a construct of the legal community to try to have portion fault in a way that is illegally enforceable. Then there's assumption of the risk, which is probably even more so than anything else, a fiction, and we just talked about it, right? It's trying to parse out what somebody can and cannot be responsible for, and what somebody had or did it not have a duty for, okay. But the one fact in between, the one that keep going back to is what is an inherent risk. And I really would exort legal practitioners to go into the analysis of what is an inherent risk with a truth seeking eye. And that's really hard, I understand when you're advocating for your client, but we truly, we have the opportunity to shape jurisprudence over space flight activities. And we have the opportunity to create good law and to marry good science with good law, to be honest and accurate, to the extent possible about what is an inherent risk of space light activities, what is not an inherent risk, and to truly hold operators responsible when they should be held responsible and not fabricate, right? Not make inherent risk of fiction to.

So, let's spend a couple of minutes talking about Jane Plaine and her situation, because that was the hypothetical that we started off with. Jane Plaine got on a plane for 14 hours, put herself to sleep, which is, we all know this right, is a risk factor for pulmonary embolism, which is why I put the chest pains at the end of the story. And in part, I did that because I'm not a physician, but I had a pulmonary embolism in October of 2020. And I figured, well, I know how that feels. So I put that in there. And then she does this suborbital flight, which seems to be uneventful. And then she goes to this dinner where they probably feed her something they're not supposed to feed her, and she may or may not have had an allergic reaction. And then she goes to bed and she dies, okay. So the question is, this goes around responsible. Well, let's take it through, right? They probably had her sign a waiver, and it was probably broad, but did it include the effect of a long flight? I don't know. And is the long flight and inherent risk of space flight activities? If you have a really broad definition of space flight activities, that includes the training, the pre-launch activities, yeah, it does. And the operator might be in trouble because it would fall under the definition, right?

Arguably, you would have a very fact intensive analysis about whether they warned her, that she needed to walk around whether they warned her, that it's dangerous for you to sit in your seat the whole time, so on and so forth. And that's probably an easy fix for the company to have taken care of, right? And then the question is, did she assume the risk of a pulmonary embolism by sleeping 14 hours on the plane? Maybe, maybe not. And so there's a lot of gray in there. The suborbital flight itself is supposed to be an eventful and there's no trick, it really isn't eventful.

The question I would really pose for that pre-flight activity is, did the company engage in conduct that rose to the level of gross negligence? And my answer to that would be absolutely not. They put her on a plane, they landed her safely, bad stuff happens, right? But they weren't grossly negligent, I think there's a little bit of a different analysis when you're looking at the allergic reaction, if that's in fact what killed her, because in that case, right? They are feeding her something that she told them not to feed her. And this is a Gets Around activity that is conducted by one of their companies. And so even if you were to take the language of the federal cross waiver, and even if you were to take it under state law interpretation, I think though there, that behavior would rise to the level of gross negligence, which they're not protected from. And so if they did poison her with allergic food, they're probably liable. If she died from the flight, I would say they probably aren't. But the question is going to really come down to causation. What is it that killed her?

And I'm gonna give you one final example, which to me was really a turning point when I was writing my thesis. There was a case from Florida and it was an assumption of the risk case where a boxer went in the ring and had the fight and the fight caused a subdural hematoma, right? He had a bleed in his brain. He got out of the ring, he wasn't doing well. And it took a long time for the medics to show up. It took a long time for him to get help, and he died. And the organizers, when they got sued by the family said, yeah, getting punched in the head is like 101 of boxing. I don't know why we're having this lawsuit, it's an inherent risk. Getting punched in the head is an inherent risk of boxing. But the court said is, which is why I'm so fixated on this post recovery stuff. The court said, punch in the head, yeah, that's inherent, having to wait court side for medics to show up with a brain bleed, that's not inherent, that's negligent.

And so they found the organizers responsible, which is why what caused it and when is going to become of critical importance when analyzing suborbital flight events, bodily injury or death, because it's really going to come back down to when did the injury happen? Really what caused it? And that will trigger a whole series of different analyses under different types of law that will have very different consequences for finding of liability. Now I'm really done. Thank you so much for listening today to this one hour CLE, my name is Giugi Carminati. Feel free to reach out. Thank you so much for hanging out with me for this hour. And I hope that you learned something, and I hope that you found this interesting. Have a great day, weekend, week, month, holiday, whatever it is that you're doing right now, and see you soon, bye.