The SeaWorld Case

"The remedy imposed for SeaWorld's violations does not change the essential nature of its business. There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures."

OSHA won a significant legal victory when a panel of three judges of the U.S. Court of Appeals for the D.C. Circuit rejected SeaWorld of Florida LLC's challenge to a general duty clause violation following the death of killer whale trainer Dawn Brancheau in February 2010. There's no question in my mind that the decision is correct; the dissent by Judge Brett M. Kavanaugh is simply absurd.

The majority opinion written by Judge Judith W. Rogers finds that "there was substantial record evidence that SeaWorld recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.

"The remedy imposed for SeaWorld's violations does not change the essential nature of its business," it continues. "There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures."

OSHA filed two willful citations against SeaWorld after investigating Brancheau's death. A whale named Tilikum had pulled her into the pool during a performance and killed her. While an OSHRC administrative law judge affirmed the citations in June 2012, he downgraded them from willful to serious, and this appeal challenged the general duty clause violation.

Kavanaugh's dissent cites the obvious dangers of many sporting events and entertainment shows and warns that this enforcement case opens the door for DOL to regulate those industries. Rogers' majority opinion rebuts his argument by saying, "No one has described SeaWorld's killer whale performance as a 'sport,' and a legal argument that the 'sports industry' should not be regulated by OSHA can be raised when and if OSHA attempts to do so. Until then, this court will not find that OSHA acted arbitrarily based on a few responses to hypotheticals in briefing or oral argument."

SeaWorld stopped allowing trainers to be in the water with killer whales after Brancheau's death and separated them with barriers or distance, which were the abatement measures proposed by OSHA in this case. But SeaWorld argued the agency overreached by using the general duty clause here and that barriers and distance create additional hazards for the trainers. The case is SeaWorld of Florida, LLC v. Thomas Perez, No. 12-1375. Chief Judge Merrick Garland was the third judge assigned to decide the case.

This article originally appeared in the June 2014 issue of Occupational Health & Safety.

About the Author

Jerry Laws is Editor of Occupational Health & Safety magazine, which is owned by 1105 Media Inc.

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