Sea World of Florida, LLC v. Thomas Perez

Court of Appeals for the D.C. Circuit
748 F.3d 1202, 409 U.S. App. D.C. 228 (2014)

ELI5:

Rule of Law:

The general duty clause of the Occupational Safety and Health Act requires an employer to protect employees from a recognized hazard, even if that hazard is inherent to the employer's business model, so long as the hazard is preventable and feasible abatement methods exist that do not fundamentally alter the nature of the business.

Facts:

SeaWorld of Florida, LLC operates a marine animal theme park in Orlando, Florida, featuring performances with killer whales.
On February 24, 2010, veteran trainer Dawn Brancheau was pulled into a pool and killed by a killer whale named Tilikum during a live performance.
Tilikum had been involved in the death of another trainer in 1991 at a different marine park.
SeaWorld recognized Tilikum's aggressive tendencies and had established special safety protocols for him, which prohibited trainers from performing "waterwork" (deep water interaction) but permitted "drywork" (poolside interaction).
SeaWorld maintained internal incident reports documenting numerous instances of aggressive behavior by its killer whales toward trainers, including a 2006 incident where a whale repeatedly submerged a trainer for approximately 10 minutes.
SeaWorld's safety program relied on operant conditioning to train the whales and training for employees to recognize behavioral "precursors" to aggression.
Despite these protocols, incidents of aggression, including the one that killed Ms. Brancheau, occurred without any observable precursors.

Procedural Posture:

Following an investigation into a trainer's death, the Secretary of Labor, through the Occupational Safety and Health Administration (OSHA), issued a citation to SeaWorld for violating the general duty clause.
SeaWorld contested the citation before the Occupational Safety and Health Review Commission.
An Administrative Law Judge (ALJ) conducted an evidentiary hearing and issued a decision upholding the citation but reclassifying the violation from 'willful' to 'serious' and reducing the penalty.
SeaWorld petitioned the full Commission for discretionary review of the ALJ's decision.
The Commission denied SeaWorld's petition for review, making the ALJ's decision its final order.
SeaWorld then filed a petition for review of the Commission's final order in the U.S. Court of Appeals for the D.C. Circuit.

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Issue:

Does an employer's practice of allowing animal trainers to engage in close, unprotected physical contact with killer whales during performances violate the general duty clause of the Occupational Safety and Health Act when the employer is aware of the risk of serious injury or death?

Opinions:

Majority - Rogers

Yes, SeaWorld's practice violates the general duty clause of the Occupational Safety and Health Act. The clause requires an employer to furnish a workplace free from recognized hazards that are likely to cause death or serious physical harm, and this duty applies even in the unique context of animal entertainment shows. The hazard of working in close contact with killer whales was 'recognized' by SeaWorld, as demonstrated by its own internal safety protocols, extensive incident reports, and documented comments from management urging caution. SeaWorld's existing safety program, which relied on operant conditioning and trainer observation, was proven inadequate by the continued occurrence of life-threatening incidents. Feasible means of abatement, such as using physical barriers or maintaining a minimum distance, were available and would materially reduce the hazard without fundamentally altering the nature of SeaWorld's business, as evidenced by SeaWorld's own implementation of such measures after the fatal incident.

Dissenting - Kavanaugh

No, SeaWorld's practice does not violate the general duty clause. The Department of Labor exceeded its authority by regulating the intrinsic and 'normal activities' of an entertainment show, a departure from its longstanding precedent established in Pelron Corp. Under Pelron, a hazard that is inherent to the nature of an industry cannot be a 'recognized hazard' under the general duty clause, because eliminating it would fundamentally alter the business itself. The Department's action is arbitrary and capricious because it fails to provide a rational distinction between SeaWorld's performances and other inherently dangerous activities, like tackling in the NFL or high-speed racing in NASCAR, which the Department disclaims authority to regulate. Congress did not intend for the Act's general terms to grant an agency the power to remake entire sports and entertainment industries.

Analysis:

This decision affirms the authority of the Occupational Safety and Health Administration (OSHA) to apply the general duty clause to unique and inherently dangerous workplaces, such as entertainment venues. The court's holding establishes that an employer cannot escape its duty to abate preventable hazards simply by claiming that the risk is an essential part of its business model or public appeal. This precedent may broaden the scope of OSHA's regulatory reach into other areas of the sports and entertainment industries where performers are exposed to significant, known risks. The dissent's strong objection highlights the ongoing legal and philosophical debate over the extent of administrative power to regulate activities where participants willingly accept a degree of risk.

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