Tracey L. Knutson is a licensed attorney in Anchorage, Alaska whose primary practice involves working with recreation and adventure sports commercial operators, public land administrators and recreation oriented educational groups. An experienced trial lawyer, Tracey defends recreation companies and sports groups from liability claims, often negotiating pretrial conclusions that minimize time and expense. In addition, she provides risk management and training services. Tracey’s belief, when it comes to recreational endeavors, is that risk and opportunity exist simultaneously. Learning how to maximize the opportunities in your recreational endeavors by minimizing or mitigating the risks is a key component of operating a quality adventure sport or recreational endeavor or business. She is the author of “What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry?” in Volume 33, number 1 of the Journal of Space Law.
Res Communis: Can you give us a brief definition of what “informed consent” means?
Knutson: To me, the question really is, how is “written informed consent” being talked about in the space community? “Informed consent” outside of the space community means something a little different, by my way of thinking. As I wrote in “What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry?”, (JSL article) “informed consent” outside of the space community usually refers to a situation in which there is some type of therapeutic treatment, and a physician or therapeutic professional provides information on the risks associated with the treatment. This way the therapeutic provider obtains some legal liability relief from administering the treatment. In the space community, in the 2004 Commercial Space Launch Amendments Act (Act) Congress used the term, “written informed consent” or “informed consent” when it addressed how the commercial space flight providers would shift some of the risk back to a space flight participant (SFP). I want to be real clear when I talk about this: we are talking about different things inside and outside of the space community. Regarding space, Congress used the term “informed consent” and then in formulating the regulations, the Office of Commercial Space Transportation (AST) required “written informed consent”. I think what they are talking about is codifying a “duty to warn.” Commercial operators are going to have pretty strident duties to warn potential space flight participants about the risks associated with this emerging adventure activity.
Res Communis: What do you see as some of those duties? What do operators need to tell the SFP?
Knutson: It is clear that the Act required the AST to develop a set of regulations. This was done in 2006. It is also clear that Congress said to AST, take a hands-off and a wait-and-see-approach so we don’t harm this developing industry. And it’s clear that AST’s approach has been to establish a licensing regime, not a tort regime. So, the question of what do operators have to warn SFPs about is not really answered by the regulations. Right now they regulations really require only a couple of things. The current required warnings must state that the Federal Government does not license the vehicles themselves, that known risks, which could lead to, injury or death be disclosed and that simply participating in space flight could lead to injury or death. Therefore I think AST is trying to put an SFP on notice that the space flight vehicles don’t undergo the same amount of testing that a normal aviation style vehicle would before it would be licensed for public use. They require that an SFP be warned of all the things that could result in physical injury or death. The regulations are, of course, a lot more detailed than that but there really isn’t a lot mandated in them. So when the question, what do the operators have to tell SFPs is raised, other than those few things, they really aren’t required to tell an SFP anything. The bigger question becomes, if they want to engage in risk shifting; if they want to actually fulfill all the common law duties in warning cases; then they will have to tell you a whole lot. They will have to tell you that there really aren’t industry standards; that there are a myriad number of ways you can be sick; that you can die. One of the things that is going to be really critical is to be sure that warnings or explanations given to SFPs are done in a simple, cogent manner. Another really important issue will be to explain the risk-sharing regime established under space law. SFPs don’t really understand that as a participant she or he could be liable for damages caused by the space flight experience— not just for damages to themselves or to another SFP—but also for the damages if, for example, one of these vehicles drops out of the sky and drills a hole in the desert, or worse yet in a community. An SFP could bear a portion of the legal or financial risk for what happens. So, as to the question of what the operator has to tell an SFP, there is really going to have to be a lot of work to expand a full understanding of the various risks that have to be explained. It is an interesting, broad question. The JSL article that I wrote takes a stab at it. We are really going to have to expand on that and see what will satisfy the FAA AST when these groups apply for a permit. These written warnings—this “written informed consent”—has to be provided by the operators to take the SFP’s money, or to agree to fly them. So this certainly has to be accomplished before they are given a permit.
Res Communis: If operators are supposed to give written informed consent before they take an SFP’s money, does this include a deposit? Or, can a deposit be taken with the understanding that the full ticket price will be paid at a later date after the written informed consent is given?
Knutson: This can be argued both ways. The point is not to damage the industry through the kinds of discussions we’re having here. It will be up to AST to ultimately make the decision.
Res Communis: Is the law of informed consent mostly state, Federal, or some mixture of both?
Knutson: That is a very interesting question. Does the Act, Federal law, occupy the field in the terms of being preemptive of state law? I think I originally presumed it did. But the more I think about it, the more sure I am sure it does not. I have a defense attorney’s perspective, I defend industry. I have the view that because the Act directed the oversight agency to take a hands-off approach and because the regulation is very open ended, my view is that it establishes a licensing regime, not a tort regime. So I don’t think there is anything against establishing and codifying state law defenses. For instance, the Federal statute and regulations make it clear that Congress was saying that they want the commercial operators to be able to share or shift the risk shift back to SFPs, if they are given the appropriate warnings. That is what they were attempting to do with the informed consent language. Common law all over the country establishes assumption of risks; written informed consent; and the use of release and waiver style contracts. There are all kinds of different state level statutes for rafting, skiing, mountain climbing, and other adventure activities. They are all state legislative efforts to codify some assumption of risk ideas. I think that state level efforts to codify those ideas for SFPs will work hand-in-hand with the Federal statute and I don’t think that Congress intended to occupy that field yet. Congress also directed the oversight agency to put out the first set of regulations. They came out at the end of 2006. Beyond that the oversight agency is not supposed to regulate for eight years or until the occurrence of a critical incident. I don’t think that there is anything that says that states can’t get in there and legislate and that is, in fact, what they are doing and I think it is appropriate. I can make a pretty good set of arguments that we will not see preemption, at least in the area of legislative efforts that talk about risk shifting and assumption of risk and things like that.
Res Communis: There is a term-of-art used by some attorneys regarding informed consent: “cognizance test”. Is that a term with which you are familiar and if so, how would you define that?
Knutson: I used that term in the JSL article I wrote. In broader adventure sport law, that term is not often used but it has absolute application both in the space community and in adventure sports. This is because to effectively shift the risk back to a participant, courts will look at a lot of different things. Primarily they are going to look and see if the participant actually was warned about the risks they assumed. There are lots of different kinds of risks with adventure activities. They are aggregated into two primary types of risks. One is “inherent risk”. That is, no matter how competent the provider is, they can’t necessarily change that risk. The second is the simple risk of the provider’s negligence. What courts do with inherent risk, by and large, is to put it into one of two camps. They will either say, “We don’t care whether you understood it or not Mr. or Ms. Participant, it is an inherent risk. If you signed the document, or if you listened to the safety briefing, it really isn’t that important to us if you understood it. You assumed that risk.” In the second camp, we see that some state courts require that a participant not only be warned of inherent risks, but that they also must understand those risks. With negligence, Courts are a lot more strident. If they allow a provider to exculpate themselves in advance for their own negligence they usually want to know that the provider did a good job of explaining what the risk was. For instance, it is common for providers to warn or inform participants that, “You know our guides are trained but you also know they are human too. They are not infallible. So the risk you take is that the guides may make a mistake and that might be negligence. We want you to understand that.” The cognizance issue will go to a particular court’s examination as to whether a particular participant understood what she or he was doing when they signed up for the activity or that the participant understood because the provider did a good job explaining the risk to the participant. Each court is different. One may make an examination of what a participant understood, or not, in relation to inherent risk or negligence. Other courts won’t. This is a very relevant question. Did the operator do a good job of explaining so that the potential participants knew what they were doing when they signed up and went along? That in addition to the fact that the regulations require that operators provide an opportunity for SFP’s to question operators, is how cognizance relates to what is happening in the space community.
Res Communis: As part of its informed consent duties, would you advise an industry client to tell the SFP that he or she should have a will and get their final affairs in order before the flight?
Knutson: Absolutely. There are many statistics on the likelihood of flight crew and SFP death in this particular industry. Space News had an article in the January 14 edition. The authors made the point that the risk of dying in a commercial airplane is estimated to be one-in-2 million flights; the risk of being killed in combat or in a military jet aircraft is approximately one-in-10 thousand; and, that the risk of losing a life in human space flight is one-in-100 flights. I have also heard that figure to be one-in-200, one-in-50. These authors seem to be in the moderate one-in-100 range. If the SFP knows she or he is anywhere in the one-in-200 or one-in-100 range, they absolutely should have their affairs in order before they engage in this activity. It is clearly a right-minded type of warning for an operator to give a potential SFP. There is no doubt in my mind that this should be part of the advice or warning that is to be given between private operators and SFPs.
Res Communis: Can a parent give informed consent on behalf of a child?
Knutson: Not in the space community. Right now, under the regulations an adult can only give “written informed consent” for her or himself. There is a specific section of the regulations that expressly states that, at this point in time the FAA/AST does not consider someone under the age of 18 capable of providing written informed consent, nor may parental consent be substituted for the minor’s consent. It is pretty clear that this type of written informed consent can only be given by an adult because of the very high risk. The broader question in the normal adventure world is, can parents contractually or otherwise give written informed consent or written waiver documents on behalf of their child? Sometimes yes, sometimes no. That goes back to the issue of state law. Some states have legislation that allow parents to give consent for their child because it affects a lot of things like Cub Scouts, Girl Scouts, after school activities, things like that. Some states have said that because a parent’s consent releases liability, in other words gives away the child’s rights to sue and recover for injuries, that the parent is not empowered to so obligate or restrict their child’s legal rights In those states, if a parent does sign a release document on behalf of their minor child, the child will have until they are 18 to ratify anything that their parents signed. That is kind of a hot spot issue in larger adventure sports. But the space transportation regulations make it pretty clear that parents can’t do that.
Res Communis: Please define “adventure sports”.
Knutson: In my mind, “adventure sports” are things like heli-skiing, whitewater rafting, bungee jumping, mountain climbing, things like that. They are the individual-oriented, adrenalin-type sports that are different from large, commercial, team sports like football, soccer, and things like that. That is the critical distinction in my mind.
Res Communis: To be in the category of “adventure” does an activity have to have a certain amount of risk associated with it?
Knutson: You are exactly right in making that point. People are looking for that challenge, that rush, that adrenalin. It’s the getting off the couch; getting out of the normal parameters of day-to-day life: a job, a family, or whatever. It’s that challenge to go above and beyond, to see what one’s own capacities are. My career has been in adventure sport defense for a dozen or more years. I see all kinds of things being done in using the ‘juice’ of adventure sports, not just interpersonal one-on-one challenges, although that is the most common version. I see executives taking on sports challenge courses, rope climbing courses, whitewater courses. All manner of advertising is done using adventure sport images and themes. As individuals, many people want to face or push their personal boundaries. That’s why adventure activities are important. I have always been on the defense side and have said “Good. You ought to be able to go out there and do that kind of thing! It is healthy! It’s normal! It’s good for people! You should be able to make the choice to push your own boundaries.”
Res Communis: We understand that you are defense counsel, but if you were to represent a potential SFP, what one piece of advice is the most important to give him or her?
Knutson: The best advice I could give to a potential SFP is to understand that their role in the decision making process is equally important and as critically responsible as the operator’s. The operator will provide the hardware, the technology, the warnings, all of that kind of thing. The SFP has to come home to his or her own realization that this is worth doing, that they really want to risk everything to undertake this activity. They are going to have to critically decide that they feel confident that they want to do this. We have been talking a lot about the duty to warn; but under the law the duties between an operator and a participant run both ways. Both entities have to act reasonably in whatever situation they find themselves. At this moment in time, when everything is so new and so experimental, the best thing that an SFP can do is to decide for themselves that this is nobody else’s responsibility, that they have to decide for themselves that this thing is worth doing. They or in are confident enough in the machinery or in the relationship with the operator or in the whole endeavor. They have to take home this idea to themselves that they are assuming the risks. The best piece of advice that I could give somebody is to really get their head around the idea that it is their own responsibility to decide whether they want to take the risk; whether this is safe or not; whether they are willing to give it all up for this one opportunity.
Res Communis: And that they could die?
Knutson: Yes, and that they could die.
Res Communis: Space flight tourism has been getting a lot of press. A lot of people interested in the idea are generating a lot of publicity. Does publicity tie into what constitutes “informed consent”?
Knutson: Yes, it does. We do see an awful lot of publicity. Notably of course is Virgin Galactic: publicity about their company and for their innovative efforts. I find it both positive and problematic. It is positive for the industry because the public constantly hears about what is coming. It keeps the interest level up and the fascination factor going. On the other hand, looking at the experience of the adventure sport world and applying it to space flight, I urge a little note of caution. In the adventure sport world, lots of people see beautiful, sexy marketing and they take that marketing and receive it like it is a confirmation or an express representation of the way the activity is going to go. Then, they show up for the activity and they are handed the release, the contractual exculpation document, and of course they sign it and away they go. They may or may not read it but what they do have in their mind is the expressed representations in the marketing. Then when it doesn’t go the way the marketing depicts, what they argue in court is that those expressed marketing representations were something they were entitled to rely upon, in addition to the representation made in the release contracts. They are having some success with those arguments. So it may be true that marketing can be a type of express representation or commitment. Operators need to be aware of what people are thinking about the flight activities and what they think they are going to be provided; or what they think the activity is going to be like. In addition to how much fun, how much champagne, how sexy it’s going to be, operators have to realize that they could be held responsible for those marketing representations at a later point in time.
Res Communis: This has been fascinating. Is there anything you would like to add to make this a complete interview from your perspective?
Knutson: The only thing I would add is how fascinating it has all been for me, as well. I sort of got pulled into space; space kind of came and found me. I didn’t have a huge awareness of it a few years ago and it is a fascinating industry. The people, the products, the direction that it is going are fascinating, so I feel fortunate to be watching it, participating in it, and I think that should be said.
Res Communis: Would you become a space flight participant?
Knutson: Not now. I have a very young son for whom, and to whom, I will be responsible for a long time to come. He is my first priority. I have to limit taking risks that can prevent me from fulfilling my responsibility to him.
Res Communis: This was a fantastic conversation. Thank you.