Proposed New Mexico Informed Consent Changes Would Further Narrow Lawsuits

Comments

ss2_hangar

By Douglas Messier
Parabolic Arc Managing Editor

Proposed changes to New Mexico’s informed consent law regarding suborbital spaceflights would not only extend protections from lawsuits to spacecraft manufacturers and their suppliers, they would also narrow the circumstances under which injured spaceflight participants and their heirs can sue.

Introduced by Sen. Mary Kay Papen, Senate Bill 63 would provide liability protections to a spaceflight entity (manufacturer, parts supplier and operator) except if it:

“(1) commits an act or omission that constitutes gross negligence evidencing willful or wantondisregard for the safety of the participant and that act or omission proximately causes injury, damage or death to the participant; or
“(2) intentionally injures the participant.”

Those provisions are essentially unchanged from the current law, which only covers spacecraft operators but not manufacturers and suppliers. However, the proposed bill removes the following provision that would permit injured parties to sue if  the spaceflight entity

“has actual knowledge or reasonably should have known of a dangerous condition on the land or in the facilities or equipment used in the space flight activities and the danger proximately causes injury, damage or death to the participant.”

That change appears to be a significant narrowing of the scope of possible lawsuits in a bill that was primarily designed to extend existing coverage to other entities.

The current law covers the spaceflight operations of Virgin Galactic, which is the anchor — and lone — tenant at $209 million, taxpayer-funded Spaceport America in the desert southeast of Truth or Consequences. It would also cover any other operators that might locate at that facility or elsewhere in New Mexico.

Virgin Galactic also the manufacturer of its own suborbital spacecraft, SpaceShipTwo, and its WhiteKnightTwo carrier aircraft. So, the company wants protections extended to cover its production operations and equipment suppliers. Efforts to extend the coverage have gone down to defeat twice before due to opposition from New Mexico’s trial lawyers.

Officials at Virgin Galactic and the New Mexico Spaceport Authority (NMSA) have said extending the coverage is vital to attracting other tenants to Spaceport America. Without them, operating the facility would become prohibitively expensive for both Virgin Galactic and NMSA. Unlike other spaceports co-located at existing airports, Spaceport America is a custom-built, stand-alone facility located in  the desert 20 miles from the nearest city.

In order to fly, spaceflight participants must sign an informed consent document acknowledging the dangers of space flight. In Papen’s bill, that language has been significantly beefed up and reads as follows:

“I understand and acknowledge that under New Mexico law, a space flight entity is not liable for any injury to, or death of, a participant resulting from space flight activities except for injury or death caused by the space flight entity’s gross negligence  evidencing willful or wanton disregard for the safety of the participant or caused intentionally by the space flight entity. Those injuries may include bodily injury, emotional distress, death or property damage. I understand that I have accepted all risk of injury, death, property damage and other loss that may result from space flight activities except for the risk of injury, death, property damage and other loss that may result from the space flight entity’s gross negligence evidencing willful or wanton disregard for the safety of the participant or from an intentional act or omission of the space flight entity.”

The measure deletes the current warning:

“WARNING AND ACKNOWLEDGMENT

I understand and acknowledge that under New Mexico law, there is no liability for injury to or death sustained by a participant in a space flight activity provided by a space flight entity if the injury or death results from the inherent risks of the space flight activity. Injuries caused by the inherent risks of space flight activities may include, among others, death, bodily injury, emotional injury or property damage. I assume all risk of participating in this space flight activity.”

Gov. Susana Martinez has backed the extension of protections. A group also has formed called Save Our Spaceport, warning that Virgin Galactic could pull out of the state and fly from elsewhere if it doesn’t get the protections it wants.