Space Torts: Duties and Causation

As any first year law student knows, torts are generally broken up into two categories: intentional torts, and negligent torts. A prima facea cause of action in negligence requires the plaintiff to prove duty, breach, causation, and injury. In other words, the defendant must have owed a duty to the plaintiff, breached that duty, and actually injured the plaintiff through that breach. But our current concepts of duty and causation would likely require some important revisions in order to be extended to outer space.

Relationships give rise to duties. For instance, a doctor has a duty to his patient, a mother to her child, a business owner to his business invitees. In the absence of Good Samaritan statutes, US courts have declined to impose a duty between one stranger and another who happen to encounter each other in a crisis. For this reason, a person who sees a stranger drowning has no duty to save him, even if he could do so with no risk to his own safety. But the traditionally recognized duties between human beings are likely to undergo some evolution in outer space. This evolution will be driven by economic factors that are unique to space travel.

Whether traveling for business or pleasure, those who go into outer space in the not-too-distant future will most likely be protected by some sort of relationship. Business travelers will be owed a duty of care by their employers, and tourists by those who accept their money for ferrying them beyond the grasp of the Earth's gravity. Like on Earth, manufacturers of spacecraft and machinery used in outer space will be liable for negligence based on design defects, manufacturing defects, and failures to warn.

But imagine two individuals in a hotel orbiting the moon. Both are vacationers, free from the demands of their Earthly jobs. One of these vacationers decides to go on a leasurely space walk, floating outside the hotel in a space suit to protect him from the extreme cold and lack of pressure of the vacuum. The other vacationer, also outside the hotel, is sitting on a patio admiring an unobstructed view of the moon when he sees the other waving to him frantically. He realizes that the man is untethered, and slowly, helplessly floating away into the abyss.

Like the man who sees a stranger drowning, US courts would not impose a duty on the one vacationer to save the other, even if he could throw him a rope with no risk of injury to himself. But Good Samaritan laws will almost definitely be in effect in space. Because of the high cost of space travel, as well as other economic expenses associated with injuries or deaths in space, a duty should exist between these two people. Space is extremely dangerous, and small human errors can result in massive costs. At current rates, the cost of bringing 16 ounces of blood into near Earth orbit would be about $10,000, and sending it to moon orbit would cost even more. It is easy to see how expensive simple first aid would be in space, and hospital resources will be so valuable, that ethics and economics both would demand a strong Good Samaritan statute.

This statute could resemble certain laws in effect around the globe today, which provide tort immunity for one who attempts to rescue someone in danger, assuming he does so in a reasonable manner.

Of course a orbiting hotel will owe a duty of care to its guests, requiring it to take every precaution to prevent injuries in the first place. But the idea that I am getting at is that in space duty will be assumed to exist, and will have to be disproved rather than proved.

At this point it should be noted that exculpation agreements (agreements waiving liability) are left out of this discussion, and would be better approached within the framework of contract law. Furthermore, this discussion should be explored keeping in mind the classic defenses such assumption of risk.

Beyond the issue of duty, causation will also be an important issue in space. First year law students typically study the unfortunate case of Mrs. Palsgraff. Palsgraff was standing on a train platform while a train was leaving the station. A man far down the platform was attempting to get on the moving train when one of the railroad station employees gave him a helpful push onto the train. The man dropped a package which contained fireworks. The package fell underneath the train, blew up, and knocked over a giant scale far down the platform where it landed on Mrs. Palsgraff, injuring her.

The case of Mrs. Palsgraff is important because it raises the question of causation. At what point is someone's actions so far removed from an injury, and so unforeseeable, that he cannot be held accountable for the resulting injury? This issue was also strongly argued in the DES daughters cases. In those cases, children born with birth defects, caused by a drug prescribed to their mothers, sued the manufacturers of the drug DES. Later, the grandchildren of the original mothers also brought suit for their own defects and injuries. At what point do the courts say "enough is enough" and cut off the liability for far reaching negligence?

This is an important question for space torts. Because objects in space are not restricted by air friction, they tend to continue on their trajectory for years and years without slowing down. But what if a man-made object placed into orbit hits another object hundreds of years later? What if this collision was caused by the negligence of the object's owner? How long does the owner of an artificial satellite need to worry about the tort implications of it's journey through space?

This may seem like a trivial question, but it is quickly becoming a legitimate concern. The number of artificial objects orbiting the Earth is reaching a hazardous level, leading to increased occurrences of mid-orbit collisions. Furthermore, modern tort law is unprepared to judge what is or is not negligent in the launching of an artificial satellite.

One solution could be a "launch at your own risk" approach, where the law refuses to address these issues of negligence because of the inherent dangers of launching an object into outer space. A person who is financially injured as a result of engaging in this inherently dangerous activity could be deemed to have assumed the risk, with little prospects for tort remedies in the event of a financial injury.

Another solution could be to have strict liability in outer space. This would create an incentive amongst the newly privatized space transportation and tourism industries to maximize safety precautions a cooperation so as to avoid any possibility of mid-orbit collisions or similar torts.

Assumption of the risk and strict liability are both tort theories that are alive and well in today's court systems. Future legislators and judges could draw on these and other tort theories, or chart new legal ground all together. Whatever the solution, it will require some out-of-the-box thinking, creativity, and a little imagination in order to provide the most nurturing legal environment for our burgeoning space exploration programs.