WASHINGTON — A federal appeals court on Friday upheld a regulatory safety finding against SeaWorld in the drowning of a trainer who was pulled under by a killer whale at the theme park.
In a 2-1 decision, the appeals court said SeaWorld's challenge to the finding was unpersuasive and that the Occupational Safety and Health Review Commission was correct when it found that the SeaWorld park in Orlando, Fla., had violated a federal workplace safety law.
The court said SeaWorld had exposed trainers to recognized hazards when working in close contact with killer whales during performances.
On Feb. 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, before a live audience in a pool at Shamu Stadium in Orlando when Tilikum grabbed her and pulled her off a platform into the pool, then refused to release her.
Tilikum became the focus of the 2013 documentary film "Blackfish."
The administrative record in the case establishes that the hazard arising from trainers' close contact with killer whales in performance is preventable, wrote federal appeals judge Judith Rogers. Given evidence of continued incidents of aggressive behavior by killer whales toward trainers, SeaWorld could have anticipated that abatement measures it had applied after other incidents would be required, Rogers added.
The general duty clause of the Occupational Safety and Health Act requires employers to furnish a place of employment free from recognized hazards that are likely to cause death or serious physical harm.
SeaWorld said the finding that it exposed its employees to a recognized hazard is unsupported by substantial evidence. The company contended that when some risk is inherent in a business activity, the risk cannot constitute a recognized hazard.
The caution with which SeaWorld treated Tilikum even when trainers were poolside indicates that it recognized the hazard the killer whale posed, not that it considered its protocols rendered Tilikum safe, Rogers said.
The appeals judge said SeaWorld's incident reports demonstrate that it recognized the danger its killer whales posed to trainers. At the time of Brancheau's death, seven killer whales were at the Orlando park.
Even though SeaWorld had not recorded incident reports on all of its killer whales, a substantial portion of SeaWorld's killer whale population had at least one reported incident, Rogers said.
In a dissent, appeals judge Brett Kavanaugh took the opportunity to raise a broader issue.
"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?"
Kavanaugh said the bureaucracy at the Labor Department has not traditionally been thought of as the proper body to decide "whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers at the circus, or the like."
"In this case, however, the department departed from tradition and stormed headlong into a new regulatory arena," Kavanaugh said. "The department issued a citation to SeaWorld that effectively bans SeaWorld from continuing a longstanding and popular — albeit by definition somewhat dangerous — show in which SeaWorld trainers play with and interact with whales."
