NASA still is unsure where a giant six-ton six-ton satellite will hit this week, but they are trying to calm nerves by saying that the risk of someone being hit is only 1 in 3200. I was struck by that figure because in tort law that would be considered an unacceptable risk in cases of product liability or malpractice.

From a personal injury perspective, the satellite is a orbit-chasing lawyers dream. The 20-year-old research satellite is expected to break into more than 100 pieces with 26 metal parts expected to reach Earth– some weighing about 300 pounds. The debris field will cover 500 miles.

The biggest pieces will be composed of titanium, stainless steel or beryllium — one-tenth the mass of the satellite.

In past cases, 1 in 3,200 would not be viewed as a low risk to negate liability. For example, in 1974, the court in Helling v. Carey, found that a risk of one in 25,000 of glaucoma was too high to fail to give people under 40 a low-cost and pain-free test. Such questions of negligence are based on a balancing of risk and cost through such tests like the Hand formula (B = PL). Under Hand, a court balances the cost of precaution (B) against the probability (P) of an injury and the magnitude (L) of harm. If PL exceeds B, there is a presumptive basis for liability. If B equals or exceeds PL, then the defendant may have been reasonable. The injury here could be death. However, the satellite offers a novel example of how risk can be manipulated by changing the factors. The risk of someone being hit is indeed 1 in 3,200. However, the risk of any given individual being hit is 1 in 21 trillion. There is also possible claims of immunity under federal law for contractors. As a general matter, Congress waived sovereign immunity under the Federal Tort Claims Act (FTCA) in 1946. Under the FTCA, the United States made itself liable for negligence or wrongful acts committed within the scope of employment of federal employees. There are thirteen exceptions under the FTCA, including three major exceptions are (1) the Feres doctrine, prohibiting suits by military personnel for injuries sustained incident to service (an exception created more by the Supreme Court than Congress); (2) the discretionary function exception; and (3) a limited intentional tort exception for some types of torts. There is also an exception for injuries incurred in “foreign countries.” However, that was meant to protect the U.S. from being subject to the laws of other nations.

Companies are generally required to obtain liability coverage not just for themselves but the United States. Under Section 308(a), (b), (c), (d), and (e) of the National Aeronautics and Space Administration Authorization Act, 1980, companies are required to obtain insurance and indemnification for conduct resulting in “death, bodily injury, or loss of or damage to property resulting from activities carried on in connection with the launch, operations or recovery of the space vehicle.” Pub. L. 96-48, 93 Stat. 349 (Aug. 8, 1979). There are also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205; Convention on International Liability for Damages Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; Convention on Registration of Objects Launched into Outer Space, Apr. 14, 1975, 28 U.S.T. 695, 1023 U.N.T. S. 187; and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.S.T. 3. One case, however, Smith v. United States, 507 U.S. 197 (1993) (Rehnquist, C.J.) held that the waiver of sovereign immunity under the “foreign country” exception does not apply to tort claims against the federal government in Antarctica. Convention on International Liability for Damages Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187 does require payment of damage for people injured but does not extend that liability to injuries that occur in the same country as the launching country. Thus, if it landed in the U.S., the issue would return to a question of U.S. law.

This would appear an excellent candidate for strict liability since it is an activity that, even with due care, remains highly dangerous. If some debris will inevitably plunge to Earth, it would seem to have the same status as road blasting and other ultra-hazardous or abnormally dangerous activities.

Putting aside immunity questions, it would normally be presumptively negligent to have a product that falls to Earth when its use life is over. As a design defect question, the question is alternative design to having debris fall from space. That goes to the material used and whether more thought should be given to use of material that is more likely to burn up upon entry. It appears that NASA is now using 90 percent material that is likely to burn up. Moreover, countries can no longer leave debris in space with the reduction of orbit patterns do to millions of pieces of space junk currently speeding around the planet.

I do not expect satellite-crashing personal injury lawyers to be revving their engines this week. However, my love for NASA has finally yielded some terrestrial torts . . . for which I am galactically appreciative.

Source: Yahoo

Jonathan Turley