Making Commercial Space Flight Passengers into “Employees” – A Way Around Tort Liability?

by ursavoice

Jenn Henry
J.D. Candidate 2013, UCI Law
For Space Law Society

    During this summer’s Future of Commercial Space Law and Regulation Conference, hosted by Jones Day and the University of Mississippi, an attendee asked whether commercial space flight passengers could be considered “crew” of the space flight company. By assigning the passengers tasks, he argued, they would become employees, and any injuries they incurred and wanted to sue for would be covered under workers’ compensation instead of tort law (read: cheaper, more predictable, all the things businesses like). With Virgin Galactic preparing to offer commercial space flights in the coming years, this question is worth asking and might offer important insights into our quirky underlying assumptions about employment relationships. Two cases might be helpful in starting to think about this issue: Lamson v. American Axe & Tool Co. and Estrada v. FedEx Ground Package System, Inc. There is a lot of literature out there on this, even on highly analogous boat accidents in particular, so I am just barely beginning to scratch the surface here.

    Lamson v. American Axe & Tool Co. is a tort law staple: Justice Oliver Wendell Holmes’s not-so-sympathetic ruling against an employee injured by a hatchet that fell from a drying rack. Although the employee had complained to his supervisor that the hatchet drying racks were unsafe, the employer had failed to correct the situation; moreover, the employer told the employee that “he would have to use the racks or leave.” Holmes held that the employee “appreciated the danger more than any one else. He perfectly understood what was likely to happen. . . . He stayed and took the risk.” How different would this ruling have been had the injured person been a customer hoping to buy hatchets? Do you bargain for cheaper hatchets in exchange for a more dangerous shopping environment? Is the knowledge that you might get sliced and diced while shopping part of the inherent thrill of buying a hatchet?

    After reading this case, I thanked my lucky stars that I worked at Fort Fun, an amusement park in Northern Colorado, in 2003 and not 1903. These days, I am pretty confident that I could have recovered for any mini golf mishaps negligently caused by my employer. Just for the record, there were none! Fort Fun was a great place to work. And even if my hypothetical case had to be brought under tort law and Lamson, my wages were — appropriately, given my lack of golf ball distribution experience — low enough that there is no argument to be made that I somehow bargained for more money in exchange for a dangerous job. I think it is safe to say that employment law, tort law, and contract law have changed a lot since 1900. Among other notable developments, the workers’ compensation system has emerged across the United States. However, it is helpful to look to Lamson when considering why our legal system treats employees differently from passengers. If the business was responsible for the injury, why does it matter whether it was an employee or a customer who was injured?

    This distinction helps expose some of our societal values about personal responsibility and freedom of contract. In many contexts, we think it is relevant to consider whether the person consented, whether she assumed the risk, and we consider employment to be one of those areas where assumption of the risk can be relevant. And sometimes we even think there is something valuable about allowing risky activities to occur. Beyond employment, “assumption of the risk” is a key idea in high-risk recreational settings, and commercial space flight would likely be considered a high-risk recreational activity similar to hang gliding, horseback riding, or skiing. In fact, two out of three speakers on a panel about state and local commercial space issues were from Colorado and were well versed in the legal issues of the skiing industry.

    The issue of whether commercial space flight passengers can be considered “employees” will probably not be long debated. From my understanding of employment law, the definition of “employee” is a fact-intensive question (see Estrada v. FedEx Ground Package System, Inc., a recent California case that delves into details of the relationship between the employer and delivery drivers–like the employer’s control over hours, income, schedule, grooming and socks, etc.–to determine whether the drivers are “independent contractors” or “employees.”). In my view, the fact that passengers are paying huge sums of money for space flights cuts fairly decisively against their being employees and courts would likely see through any attempt to manipulate the definition of “employee” for the purposes of avoiding tort law liability. The mere addition of a job title of “astronaut” or “crew member” by itself cannot turn a person from a “customer” into an “employee” when the person’s duties are those of an ordinary passenger.


Jenn Henry writes in the Space Law column for this issue, but the views expressed are her own. So are the errors, whether they are legal, logical, or grammatical.