From OH&S / Apr 11, 2014  Re-posted from OBRag

OSHA has won the appellate case involving its enforcement case against SeaWorld of Florida LLC following the death of killer whale trainer Dawn Brancheau on Feb. 24, 2010. A 2-1 decision issued April 11 by a panel of three judges of the U.S. Court of Appeals for the D.C. Circuit found 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.”

“The remedy imposed for SeaWorld’s violations does not change the essential nature of its business,” the majority opinion written by Judge Judith W. Rogers states. “There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures.”

This is a high-profile case that was argued Nov. 12, 2013, at the Georgetown University Law Center, with SeaWorld’s legal team including Gibson, Dunn & Crutcher LLP’s Eugene Scalia, son of U.S. Supreme Court justice Antonin Scalia.

OSHA filed two willful citations against SeaWorld after investigating Brancheau’s death. A whale named Tilikum pulled her into the pool during a performance and killed her. While an OSHRC administrative law judge affirmed the citations in June 2012, he downgraded them from willful to serious, and this appeal challenged the general duty clause violation.

Judge Brett M. Kavanaugh dissented, citing the obvious dangers of many sporting events and entertainment shows. The majority opinion addressed his argument, saying, “No one has described SeaWorld’s killer whale performance as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can be raised when and if OSHA attempts to do so. Until then, this court will not find that OSHA acted arbitrarily based on a few responses to hypotheticals in briefing or oral argument.”

The Solicitor of Labor’s brief on behalf of Secretary Thomas Perez noted SeaWorld stopped allowing trainers to be in the water with killer whales after Brancheau’s death and has separated them with barriers or distance, which were the abatement measures proposed by OSHA in this case. But SeaWorld argued the agency overreached by using the general duty clause here and that barriers and distance create additional hazards for the trainers. The case is SeaWorld of Florida, LLC v. Thomas Perez, No. 12-1375. Chief Judge Merrick Garland was the third judge assigned to decide the case.