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

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).

• AcknowledgmentsList of AbbreviationsIntroduction 1 US Law Trinity: Common Law, Statutory Law, and Contractual Law2 Utility of the Inquiry 3Structure of the Work 1 The Risks of Commercial Human Spaceflight1 Market Size and Loss Exposure 2 The Risks of Spaceflight to SFPs and Crewmembers.93 Conclusion 2 A Review of Liability Exposure and Ways to Manage It1 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 Otherwise4 Assumption of the Risk, Whatever That Means5 Conclusion3 Federal Legislation and Commercial Space1 Commercial Space Licensing2 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 Space1 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 Jurisdiction1 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 States1 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 States1 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 Activities1 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 States1 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 States1 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 SFPS1 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 SFPs 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