A judge’s ruling in the death of a killer whale trainer at SeaWorld in Orlando could change the park’s marine shows forever.
In February 2010, SeaWorld trainer Dawn Brancheau was killed when six-ton killer whale Tilikum pulled her underwater.
OSHA fined SeaWorld $75,000 for three violations:
- one willful citation of the General Duty Clause (GDC) for exposing employees to struck-by and drowning hazards when interacting with killer whales ($70,000)
- one serious citation for exposing employees to a fall hazard by failing to install a stairway railing system on a stage ($5,000), and
- one other-than-serious violation for failing to equip outdoor electrical receptacles in the stadium with weatherproof enclosures (no monetary penalty).
SeaWorld appealed. Now a judge has upheld the first two penalties, however the fines were reduced to $12,000 because the willful citation was reduced to serious.
SeaWorld argued that OSHA failed to show the conditions at its whale stadium created a recognized hazard to trainers. The company also said OSHA failed to offer a feasible abatement for the alleged recognizable hazard. And if the citation sticks, SeaWorld said the violation was not willful.
An administrative law judge rejected SeaWorld’s first two arguments but did agree that the violation wasn’t willful.
OSHA pointed to the fact that Tilikum was involved in the 1991 death of a whale trainer at a marine park in Vancouver, Canada.
SeaWorld’s training manuals for its staff acknowledge the risks when working with killer whales. An entire section in one manual was devoted strictly to working with Tilikum.
OSHA said SeaWorld could abate the hazards involved with working with killer whales by:
- protecting the trainers through the use of physical barriers, or
- through the use of a floor raising mechanism.
Killer whales can’t swim when the pool floor is raised to a certain height. Raising the floor would immobilize the whale, allowing emergency response personnel to retrieve an injured trainer more quickly.
(Tilikum had held Brancheau underwater for 45 minutes before they were able to get the whale to release her.)
SeaWorld has the floor raising mechanism at some of its parks, and has only conducted its whale shows in Orlando with trainers behind a barrier following Brancheau’s death.
That was enough for the judge to agree that OSHA had shown the danger to the trainers was a recognizable hazard and it had offered a feasible abatement.
As to the willful categorization of the fine, the judge said OSHA failed to establish SeaWorld had plain indifference to employee safety. SeaWorld has emphasized safety training and continuously refines its safety program.
SeaWorld can appeal this decision. But it looks like for now, the trainers will not be allowed in the water with killer whales during performances at the park.
(Secretary of Labor v. SeaWorld of Florida LLC, OSHRC, No. 10-1705)
A PDF of the judge’s decision is available here.