Sea World of Florida LLC v. Perez – Trainers Cannot be in Direct Contact with Killer Whales

The U.S. Court of Appeals in Washington ruled Friday that the Occupational Safety and Health Administration’s requirement that trainers not be in direct contact with the whales during shows without protective barriers or keeping a distance was justified as OSHA acted under the “general duty” clause of a workplace safety law, which obligates employers to maintain safe working conditions.

U.S. Circuit Judge Judith Rogers wrote for the majority of the three-judge panel and the opinion held that existing safety measures “were inadequate to eliminate or materially reduce the hazard to SeaWorld’s trainer employees performing with” the animals, The OSHA rule followed the Feb. 24, 2010, death of Dawn Brancheau, a trainer at the Orlando, Florida, park who was pulled underwater by a 12,000-pound killer whale named Tilikum and drowned during a performance.

Tilikum had already been tied to two deaths before Brancheau’s. In a 1991 incident, the first recorded death of a person caused by a killer whale, also called an orca, Tilikum grabbed a trainer after she fell into the whale’s pen at a park in Canada and plunged her underwater multiple times, according to an OSHA filing.

In 1999, a man was found dead in Tilikum’s tank in the morning, draped across the whale’s back. The cause of death was listed as hypothermia and it was unclear whether the whale played a role in the man’s death, according to a court filing.

In its appeal, SeaWorld argued that OSHA went too far, imposing requirements that would damage its business.

“The general duty clause cannot be used to force a company to change the very product it offers the public, and the business it is in,” Eugene Scalia, a lawyer for the company, wrote in a brief filed before the appeal.

“The clause is no more an instrument for supervising the interactions between whales and humans at SeaWorld, than it is a charter to prohibit blocking and tackling in the NFL or to post speed limits on the NASCAR circuit,” Scalia said.

U.S. Circuit Judge Brett Kavanaugh dissented from the ruling, arguing that the contact limits were a paternalistic government intrusion on sports and entertainment activities.

SeaWorld, based in Orlando, has come under increasing pressure from animal rights activists over the past year following the release of “Blackfish,” a documentary about Brancheau’s death. Some musicians, including Willie Nelson, canceled appearances at its parks this year.

The case is Sea World of Florida LLC v. Perez, 12-01375, U.S. Court of Appeals for the District of Columbia (Washington).

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