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Media Alerts - SeaWorld of Florida, LLC v. Thomas Perez
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April 11, 2014
  SeaWorld of Florida, LLC v. Thomas Perez
Headline: D.C. Circuit upholds fines imposed on SeaWorld in wake of trainer's death in killer whale attack

Area of Law: Occupational Safety and Health Act

Issue(s) Presented: Whether SeaWorld violated the General Duty Clause of the Occupational Health and Safety Act by exposing trainers who worked with killer whales to recognized hazards and whether procedures to abate those hazards were feasible.

Brief Summary: On February 24, 2010 SeaWorld trainer Dawn Brancheau was killed when a killer whale dragged her off a platform during a performance before a live audience at Sea World in Orlando, Florida. Brancheau suffered traumatic injuries and drowned.

The Secretary of Labor issued three citations to SeaWorld following an investigation by the Occupational Safety and Health Administration ("OSHA"), including a citation for two instances of a "willful" violation of the General Duty Clause of the Occupational Safety and Health Act for exposing trainers to the recognized hazards of drowning or injury during performances, and proposed a penalty of $70,000. An ALJ affirmed the citations after an evidentiary hearing, finding [1] that Brancheau was performing at the time she was killed; [2] that close contact with killer whales was a hazard likely to cause death or serious injury; [3] that there was "abundant" evidence, including the deaths of three trainers while working with killer whales at facilities around the world, that SeaWorld was aware of the hazard; and [4] that there were steps that Sea World could have taken, and in fact did take subsequent to Brancheau's death, to abate the hazard. The Occupational Safety and Health Review Commission denied SeaWorld's petition for discretionary review, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

Extended Summary (if applicable): SeaWorld contested the ALJ's findings that the risks of working closely with killer whales constituted a recognized hazard and that there were feasible methods of minimizing those risks. SeaWorld also argued that the General Duty Clause was unconstitutionally vague as applied because it lacked fair notice of the necessity of abatement measures imposed by the Secretary.

Applying arbitrary and capricious review, the D.C. Circuit rejected SeaWorld's argument that working with killer whales was not a recognized hazard because its extensive training and safety programs adequately controlled the risk. The court determined that these programs, and the fact that managers repeatedly urged caution when working with the whales, evidenced a recognition that interacting closely with killer whales was dangerous and unpredictable. The court also rejected SeaWorld's argument that the trainers accepted and controlled their own exposure to the hazards of close contact with the whales, finding that the duty to provide a safe workplace rests with the employer and is not qualified by common law doctrines like assumption of risk.

The court determined that imposition of the safety measures did not alter the essential nature of SeaWorld's business, as it would not stop trainers performing with, or caring for the whales. In support of that finding, the court considered that SeaWorld had already voluntarily imposed some of the recommended measures, including increasing the required distances between whales and trainers and prohibiting trainers from being in the water with certain whales, without harming its business.

Finally, the court rejected SeaWorld's as-applied vagueness challenge to the General Duty Clause. The court reasoned that the risks of working with killer whales were well known and that SeaWorld could have anticipated the necessity for abatement measures it imposed after the accident.

Judge Kavanaugh dissented, arguing that the Department of Labor had exceeded its authority in attempting to proscribe risks that are "normal activities" intrinsic to the industry.

For the full text of the decision, please see

Panel (if known): Garland, Rogers, Kavanaugh

Argument Date (if known): 11/12/2013

Date of Issued Opinion: 04/11/2014

Docket Number: 12-1375


Case Alert Author: Ripple Weistling

Counsel (if known): Eugene Scalia, Baruch A. Fellner, and Daniel P. Rathbun for Petitioner. Amy S. Tryon, Joseph M. Woodward, Charles F. James, and Kristen M. Lindberg for Respondent.

Author of Opinion: Rogers; dissent by Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/11/2014 02:59 PM     DC Circuit  

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