(CN) – After exposing whale trainers to “recognized hazards,” SeaWorld must pay a fine and implement more safety measures during killer whale performances, the D.C. Circuit ruled.
Animal trainer Dawn Brancheau died in February 2010 during a public whale show known as “Dine With Shamu” at SeaWorld’s Shamu Stadium in Orlando. Tilikum, a 20-foot-long male orca, dragged the 40-year-old Brancheau by her hair and drowned her.
In a subsequent investigation, the Occupational Safety and Health Commission (OSHA) found that SeaWorld violated work-safety standards by exposing orca trainers to recognized hazards of drowning or injury as a result of their close contact with killer whales during performances.
The administrative law judge recognized the educational justification for trainers’ close interaction with the whiles, but concluded that SeaWorld’s justification “must be measured against the risk” to trainers.
SeaWorld failed to show that it was “unaware” of the hazards of working with killer whales, that ruling said.
Ruling that SeaWorld’s violations “serious,” but not “willful,” OSHA imposed a $7,000 fine for violating the general duty employers have to provide a safe workplace.
The agency also ordered SeaWorld to install barriers in performance arenas, and implement a minimum distance between trainers and whales, safety measures which SeaWorld itself adopted in a limited fashion after Brancheau’s death.
A divided three-judge panel with the D.C. Circuit affirmed Friday, finding that “there was substantial record evidence that SeaWorld recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.”
OSHA’s limitations on trainer-whale interactions will not end orca performances, or hurt profits, Judge Judith Rogers wrote for the majority.
“SeaWorld’s suggestion that because trainers ‘formally accepted and controlled their own exposure to … risks,’ the hazard of close contact with killer whales cannot be recognized, contravenes Congress’s decision to place the duty to ensure a safe and healthy workplace on the employer, not the employee,” the 35-page ruling states.
Judge Brett Kavanaugh’s dissent notes that the case implicates a broad question. “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants?” Kavanaugh wrote. “And most importantly for this case, who decides that the risk to participants is too high?”
OSHA’s decision “stormed headlong into a new regulatory area,” and SeaWorld’s orca shows cannot be distinguished from a National Football League game or NASCAR race, which the agency has no authority regulate, the dissent states.
In a pointed response, Rogers said Kavanaugh’s question is “to be answered by Congress, not this court. And Congress has done so.”
Furthermore, “no one has described SeaWorld’s killer whale performances as a ‘sport,'” and it is “hardly the first time” OSHA has regulated safety standards at amusement and water parks, Rogers added.
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