A federal appeals court on Friday upheld an Occupational Safety and Health Administration ruling over Florida's SeaWorld, imposed following the death of trainer Dawn Brancheau.
In a split 2-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit concluded that OSHA was correct in its determination that SeaWorld violated federal safety rules that impose a “general duty” to protect workers against recognized hazards.
“Substantial evidence supports the finding that ‘drywork’ and ‘waterwork’ with killer whales were recognized hazards,” Judge Judith W. Rogers wrote, adding that “SeaWorld’s incident reports demonstrate that it recognized the danger its killer whales posed to trainers notwithstanding its (safety) protocols.”
Brancheau died in February 2010 after being dragged underwater by Tilikum, a bull orca based at SeaWorld’s Orlando, Fla. facility. OSHA, which is part of the Labor Department, imposed what’s now a $12,000 penalty, as well as additional safety requirements.
“The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation under the General Duty Clause to protect its employees from recognized hazards,” Rogers wrote.
SeaWorld found a sympathetic audience in Judge Brett Kavanaugh, whose 13-page dissent led off with a long list of dangerous sports and activities that people voluntarily engage in and enthusiastically watch.
“The bureaucracy at the U.S. Department of Labor 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,” Kavanaugh wrote.
OSHA, in a statement, pronounced itself “pleased” with the appellate court’s ruling. SeaWorld said in a statement quoted by the Orlando Sentinel that “the court acknowledged that there will still be human interactions and performances with killer whales and, according to the court, the decision simply requires that we continue with increased safety measures during our shows."
The ruling in theory could be appealed one more time to the Supreme Court.