1. How did the court respond to SeaWorld’s position that killer whales are not recognized hazards because of the employer’s training and safety program?

2. Did the court decide that the assumption of the risk doctrine should apply in this case?

3. Killer whale trainers make a career out of their courageous work playing and interacting with whales; should not the court let individuals accept the inherent unreasonable risk of harm in their performances like it does with professional football players and NASCAR drivers?

On February 24, 2010, a performance was still in progress when Tilikum, a 32 year old killer whale, seized SeaWorld trainer Dawn Brancheau and pulled her off her platform into the pool causing her death. The Secretary of Labor issued citations alleging two instances of “willful” violations of the general duty clause for exposing trainers to recognized hazards of drowning or injury when working with killer whales during performances. The Secretary of Labor set forth abatement procedures prohibiting trainers from working with whales unless the trainers are protected through the use of physical barriers or the use of decking systems. The Secretary proposed a penalty of $70,000. SeaWorld appealed, contending its training adequately controlled the risk. And, it asserted that trainers formally accept and control their own exposure to risks, like the risks inherent in much of the sports and entertainment industries.

JUDICIAL OPINION

RODGERS, C. J.… The general duty clause, § 5(a)(1) of the Occupational Safety and Health Act, provides: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1)…. The duty was to be an achievable one…. So understood, the court held that “[a]ll preventable forms and instances of hazardous conduct must ... be entirely excluded from the workplace.”…

A.

Whether a work condition poses a recognized hazard is a question of fact. See Baroid Div. of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 446 (10th Cir.1981)….

SeaWorld’s position is that working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk. To train its killer whales, SeaWorld uses “operant conditioning” to reinforce desired behaviors with food or other rewards. It also trains its employees who work with killer whales to recognize particular behaviors that it calls “precursors,” which indicate that the killer whales may act aggressively, and keeps detailed incident reports of when its killer whales had behaved aggressively or otherwise undesirably toward trainers, including pulling trainers into the pool. The Secretary presented evidence that the killer whales posed a hazard in spite of SeaWorld’s safety measures. On multiple occasions, including the death of Ms.

Brancheau, SeaWorld’s incident reports indicated that the killer whales showed no immediate precursors of aggressive behavior or ignored SeaWorld’s emergency procedures designed to make them cease aggressive behavior. Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous and unpredictable and that even senior trainers can make mistakes during performances, and the managers repeatedly urged caution in working with the killer whales. The evidence thus supports the ALJ’s finding that a recognized hazard existed, even beyond the impact of SeaWorld’s safety protocols….. ………………………