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OSHA general duty clause violation upheld against SeaWorld after killer whale drowned trainer

By Brandi O. Brown, J.D.

A divided D.C. Circuit panel denied SeaWorld’s petition for review of an Occupational Safety & Health Review Commission (OSHRC) order following OSHA’s investigation into a 2010 incident in which a trainer was killed during a performance by a killer whale. The OSHRC’s decision was neither arbitrary nor capricious, and substantial evidence supported the ALJ’s finding that there was a recognized hazard and that the abatement measures were feasible, the majority found. Judge Kavanaugh, dissenting, expressed concern that OSHA had “departed from tradition and stormed headlong into a new regulatory arena” by stretching its authority into the realm of sports and entertainment activities (SeaWorld of Florida, LLC v Perez, April 11, 2014, Rogers, J).

OSHA investigation. In February 2010, a SeaWorld trainer was killed before a live audience when Tilikum, a killer whale, grabbed her by the waist from her prone position on a platform and took her into the pool, ultimately drowning her. After an OSHA investigation, the Secretary of Labor issued three citations. The Secretary also proposed a $70,000 penalty.

SeaWorld challenged one of the citations, which alleged two instances of “willful” violations. The first instance was related to trainers who worked with Tilikum being exposed to “struck-by and drowning hazards” by being “allowed unprotected contact” with the bull whale while conducting “drywork” performances on pool ledges, platforms, and slideouts. Although referred to as “drywork,” those performances occur in water no deeper than the trainer’s knees. The second instance concerned trainers working with other killer whales in both “drywork” and “waterwork” performances. Possible abatement for the first instance would be to not allow trainers to have any contact with Tilikum without a physical barrier protecting them. Possible abatement methods for the second instance included the use of physical barriers in both waterwork and drywork or the use of decking systems, oxygen supply systems, or other controls that provided the same or greater protection.

ALJ decision. Issuing a decision and order against SeaWorld, an administrative law judge found the first and third elements of a violation of the general duty clause, i.e., existence of a workplace hazard-presenting condition that likely caused death or serious physical harm. The ALJ also found that evidence regarding three previous deaths (including another death caused by Tilikum), along with the employer’s written training manuals, safety lectures, and incident reports, showed that the employer recognized the hazard the trainers faced. Finally, the ALJ found that the Secretary had established feasible abatement of the hazard, noting that the employer had not argued that it was infeasible to install barriers or implement a minimum-distance requirement. The ALJ concluded that the employer’s reliance on the trainers to recognize precursors to such incidents ran counter to the requirements of the Act and that the employer was holding the trainers to a “near-impossible standard.”

SeaWorld unsuccessfully sought discretionary review by the OSHRC and petitioned the appeals court for review of the general duty violation. To establish a violation under that general duty clause, the Secretary had to establish (1) a workplace activity that presented a hazard to an employee, (2) that the employer recognized that activity as hazardous, (3) that the hazard was likely to or had actually caused death or serious physical harm, and (4) that there was a feasible means to eliminate or materially reduce that hazard. SeaWorld contested that the second and fourth requirements were met in this case.

Recognized hazard. First, SeaWorld contended that the “recognized hazard” finding was unsupported by substantial evidence. Noting that this was a question of fact, the court found that substantial evidence supported the finding that “drywork” and “waterwork” with killer whales were recognized hazards. First, there had been previous incidents involving Tilikum, and he was treated with extra caution already. With regards to the other killer whales, there were incident reports for a substantial portion of the employer’s killer whale population. SeaWorld’s position, that working with the whales was not a recognized hazard because its training and safety program adequately controlled the risk, was belied by the fact that management statements did not indicate that the protocols and training made the whales safe. Instead, they demonstrated recognition that the whales were dangerous and unpredictable and that senior trainers could make mistakes. They repeatedly urged caution.

The appeals court also noted post-incident actions taken by SeaWorld, including ceasing all “waterwork” with Tilikum after the trainer’s death in 2010 and requiring distance between trainers and Tilikum and, to a lesser degree, between trainers and other killer whales during drywork. The majority found “inapposite” the 1986 ALJ decision in Pelron Corp., which involved the manufacture of products by mixing ethylene oxide. In that case, the only way to prevent accumulations of unreacted ethylene oxide would be to close the plant. In this case, though, danger to the trainers could be prevented without closing SeaWorld.

Inherent risk. SeaWorld also contended that when there was inherent risk involved in the activity, such risk could not constitute a recognized hazard. The majority rejected this contention. Such an assumption of risk did not qualify the employer’s duty to ensure a safe and healthy workplace. The potential harm to the trainers existed in the workplace and involved conditions over which the employer had control. It was reasonable for the Secretary and the OSHRC to determine that the remedy did not “go to the essence of” the employer’s productions. In fact, SeaWorld had not had “waterwork” performances since 2010 and Tilikum could still perform almost the same behaviors with barriers.

Feasibility. SeaWorld also contended that the Secretary failed to prove feasible abatement methods and that the ALJ failed to consider evidence that such measures presented additional hazards. However, the majority found substantial evidence supported the ALJ’s feasibility findings. The record evidence showed that SeaWorld’s pre-incident protocols were inadequate. Implementing the ordered abatement was feasible because it involved extending practices already being applied to Tilikum to all killer whales and into the future. SeaWorld had not argued that the proposed abatement was not economically or technologically feasible.

Dissent. Judge Kavanaugh’s dissent focused mostly on his concern that OSHA had “departed from tradition and stormed headlong into a new regulatory arena” by stretching its authority into the realm of sports and entertainment activities, industries that were self-regulating. He contended that Pelron was dispositive and that by deciding otherwise, the agency departed from longstanding administrative precedent. Moreover, he described OSHA’s assertion of authority here as “irrationally and arbitrarily” distinguishing “close contact between trainers and whales” in these shows and “contact between players in the NFL or speeding in NASCAR races.” He also contended that the decision “green-lights the Department to regulate sports and entertainment activities in a way that Congress could not conceivably have intended.”

Rejecting the dissent’s conclusion that Pelron was dispositive and his characterization of the case being about “sports and entertainment industries,” the majority noted that “[n]o one has described SeaWorld’s killer whale performances as a ‘sport.’” The majority explained that this was not the first time OSHA had regulated working conditions in “such shows” and the dissenting judge’s “parade of horribles” was “not relevant here.” In fact, the majority noted, “[m]any traditional industries can be extremely dangerous to their employees,” but those industries “have been regulated . . . notwithstanding that employers could claim their employees were also ‘willing participants,’ ‘even in the face of known physical risk.’” Moreover, the comparison to NFL and NASCAR used by the dissenting judge was not raised before the OSHRC.