A federal appeals court upheld a regulatory safety finding against SeaWorld in the drowning of a trainer who was pulled under by a killer whale.
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 SeaWorld had violated a federal workplace safety law.
The court found that SeaWorld had exposed trainers to obvious hazards when working in close contact to 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.
The administrative record established that the hazard was preventable. SeaWorld could have anticipated that abatement measures it had applied after other incidents would be required.
“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. In its arguments to the federal government, 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 with trainers were poolside indicates that it recognized the hazard the killed whale posed, not that it considered its protocols rendered Tilikum safe.
