The D.C. Circuit Court of Appeals upheld a $7,000 fine imposed after Dawn Brancheau was drowned by a killer whale in Orlando in February 2010, a little more than four years ago.
OSHA had proposed a $70,000 penalty, but an Administrative Law Judge reduced it by $63,000 after concluding that SeaWorld’s violations were not “willful.”
The ruling was 2-1, with Circuit Judge Brett Kavanaugh dissenting. He said lots of sports are dangerous, yet attract wiling participants.
“The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves — that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?”
But the two judges in the majority — Judith Rogers and Merrick Garland — upheld the ALJ’s findings.
“The record evidence showed that SeaWorld’s training and protocols did not prevent continued incidents, including the submerging and biting of one trainer in 2006, the killing of a trainer by a SeaWorld-trained and -owned killer whale in 2009 at an amusement park in Spain, and Ms. Brancheau’s death in 2010. SeaWorld employees repeatedly acknowledged the unpredictability of its killer whales. This record evidence supports the ALJ’s finding that existing protocols were inadequate to eliminate or materially reduce the hazard to SeaWorld’s trainer employees performing with killer whales.”
Brancheau “was interacting with Tilikum, a killer whale, during a performance before a live audience in a pool at Shamu Stadium in Orlando,” the court explained. “[She] was reclined on her back on a platform a few inches below the water surface. Tilikum was supposed to mimic her behavior by rolling over. Instead, the killer whale grabbed her and pulled her off the platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum’s actions.”
Said the court:
Ms. Brancheau’s death demonstrated that close contact with killer whales was a hazard likely to cause death or serious injury. Based on evidence regarding three previous deaths involving killer whales (beginning in 1991 with Tilikum), SeaWorld’s written training manuals and safety lectures as implemented specifically to Tilikum, and SeaWorld’s incident reports, the [Administrative Law Judge] found that the Secretary had established by “abundant” record evidence that “SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork performances,” satisfying the second element of a violation. Id. at 25-26, *19. Further, the ALJ found that evidence, including SeaWorld’s incident reports, established that SeaWorld recognized the hazard when trainers worked in close contact with other killer whales; SeaWorld’s statistics regarding the predictability of killer whale behavior, on the other hand, were unpersuasive because not based on rigorous, scientific data. The ALJ concluded that SeaWorld’s claim that “it was unaware working with killer whales presents a recognized hazard is difficult to reconcile with numerous comments made over the years by SeaWorld management personnel, including [two] corporate curators of animal training . . . [whose] comments were documented and circulated among all of the SeaWorld parks.” Id. at 29, *22.
The court said SeaWorld has already changed its practices.
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. SeaWorld itself has limited human interactions. After Ms. Brancheau’s death in 2010, SeaWorld ceased “waterwork” with all of its killer whales. It also imposed distance between trainers and Tilikum during drywork and, to a lesser degree, between other killer whales and trainers during