About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Sunday, April 13, 2014

The SeaWorld / OSHA Ruling: How It Happened & What It Means (UPDATED 4/14/14)

SeaWorld’s killer whale trainers are out of the water, at least for performance purposes, seemingly for good.  So says the Court of Appeals for the D.C. Circuit in SeaWorld of Florida, LLC (see update below) v. Perez – the SeaWorld OSHA appeal that I have written about previously and that featured prominently in Blackfish.  As you may recall, following the death of trainer Dawn Brancheau at SeaWorld Orlando, the Occupational Health & Safety Administration (“OSHA”) investigated and issued citations requiring, as relevant to this case, that SeaWorld immediately stop allowing its trainers into the water with orcas during performances.  Pursuant to OSHA’s ruling, SeaWorld’s trainers could only interact with the whales during performances if separated by a physical barrier that would, in effect, prevent a whale from dragging a trainer into the pool as had occurred with Ms. Brancheau.

(more after the jump)

SeaWorld asked the D.C. Circuit to review OSHA’s ruling, and the case hinged on the interpretation of the so-called “General Duty Clause” of the Occupational Safety and Health Act which requires, in broad terms, that employers remove “recognized hazards” that are “causing or likely to cause death or serious physical harm” to its employees. 

SeaWorld essentially argued that it did not violate the General Duty Clause because there was not enough evidence to find that "waterwork" constituted a “recognized hazard” because “its training and safety program adequately controlled the risk.”  SeaWorld also argued that there was a certain inherent risk in being a killer whale trainer that was accepted by those employees and that could not be removed without altering an integral part of SeaWorld’s business, and that OSHA’s decision was “arbitrary and capricious” since it allowed waterwork during so-called “husbandry” activities, but did not allow it during performances. 

The Court, however, was unconvinced and ruled against SeaWorld.  This case could (and no doubt will) be interpreted by those that vehemently oppose SeaWorld’s business (or, indeed, its very existence) as an affirmation of their beliefs about SeaWorld.  No doubt, some will use this ruling to bolster their argument that SeaWorld is nothing more than a huge corporate behemoth that cares little for the safety of its trainers – after all, if SeaWorld wasn’t everything critics claim it to be, surely the D.C. Circuit wouldn’t have upheld the sanctions imposed after trial, right? 
Not exactly.  Reading the opinion this way ignores its context and, more specifically, the power the court had when deciding the case.  Properly understood, the outcome of this case is not all that surprising given that the court’s review was, by design, heavily weighted in favor of upholding the lower court’s ruling.  Absent some exceptional circumstances, which this court did not find here, affirmation of the lower court’s ruling was virtually required. 

So what does this case mean for the future?  Well, the obvious answer is that it puts SeaWorld’s orca trainers permanently in dry-dock during performances.  But I think this case also gives other facets of the amusement, entertainment, and zoological industry some important guidance.  And that may be the ultimate legacy this case leaves behind.  

The Legal Deck Was Stacked Heavily Against SeaWorld

As I mentioned above, to really understand this decision, it is important to understand the stage of the litigation in which this decision was made and what powers the court has and, more importantly, doesn’t have at that stage.  

This was an appeal, and different rules apply to appeals than to the initial proceedings – in this case the evidentiary hearing before the OSHA administrative law judge.  Because this was an appeal, the Court could not, except in very narrow circumstances, second guess the factual rulings made below.   To use the “legalese,” this Court could only reverse factual findings if it found that they were unsupported by “substantial evidence.”  This is a tough bar to get over, and basically means that this Court would have to allow the prior findings that, for example, working with orcas presented a “recognized hazard” or that taking trainers out of the water was a “feasible means to … reduce the hazard,” unless it found that there was so little evidence supporting them that it would be unreasonable to reach such conclusions.  The law does this in recognition of the fact that the original judge was the one that heard all the evidence and made credibility determinations about the witnesses and was therefore in the best position to determine the facts in a given case.  Here, SeaWorld effectively had the deck stacked against it from the inception of the appeal because the system put its thumb on the scales of justice in OSHA’s favor right from the beginning.  By and large, SeaWorld was stuck with the lower court's findings.   

But OSHA did not only have an advantage with respect to the facts, it had an advantage with respect to the prior judge’s legal rulings as well.  Because this case arose from an administrative agency, OSHA, the Appellate Court must defer to the judge’s legal rulings unless it finds them to be “arbitrary and capricious.”  This is a very different standard than would apply to legal rulings in an ordinary civil action – rulings that the Court would generally review without regard to the conclusion reached by the trial judge.  Here, because this was an OSHA administrative matter brought under OSHA regulations, the scales were tipped in OSHA’s favor on the legal determinations made below just as they were tipped in OSHA’s favor on the factual findings in the case.

And that’s why this case can’t really be read as independent confirmation of the merit of the OSHA sanctions or as an independent condemnation of of SeaWorld by the Court of Appeals.  Before the Court read a single word of the parties’ briefs or heard a single syllable of oral argument, SeaWorld was fighting an uphill battle to prove that the lower court’s decision was “not supported by substantial evidence” and / or was “arbitrary and capricious.”  Even if, in a vacuum, the Court of Appeals thought the lower court interpreted the evidence wrong or would have ruled differently on the evidence, it was required to accept its decision unless SeaWorld could overcome either of these formidable barriers.  This case, thus, represents not so much a ringing endorsement of OSHA’s sanctions as it does a stamp of acceptance that OSHA proved its case to the minimal standard required and that the judge below did not act arbitrarily in its legal rulings.

Finally, it is important to understand that this is not a rule favoring OSHA.  It is a rule favoring the trial judge’s original rulings.  Had SeaWorld prevailed below, on the basis of the same evidence, my guess is that OSHA would have lost an appeal before these same judges.  The same standard favoring the trial judge’s original rulings would have applied and it would have been up to OSHA to convince the court that the original judge acted arbitrarily or reached unsupported factual findings.  I seriously doubt that OSHA would have been able to overcome this barrier any better than SeaWorld did. 
What Will The Legacy Of This Case Be?

Now, none of this is to suggest that this decision is not an important one.  Anytime a federal appeals court issues a ruling, it is important and people listen.  A decision like this gives future judges in OSHA cases guidance in making future decisions appeal-proof and, provides a roadmap of sorts to future employers trying to steer clear of similar sanctions.  So what should the industry as a whole take away from this case?  Three things are at the top of my list.

First, the argument that employees can accept the risk of working with animals is not likely to get very far on its own.  The Court’s opinion directly rejected this idea, focusing instead on the employer’s obligation to provide a safe environment regardless of the risks an employee is willing to accept.  

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.  This court has long held this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence. … The potential harm to SeaWorld’s trainers exists in their workplace and involves conditions over which SeaWorld has control.
While it may be true that those who work with animals in zoos, circuses, shows, or amusement parks may well be aware of and accept the risks they are undertaking, the Court made clear that this awareness and acceptance does not absolve their employers from instituting policies and practices that effectively minimize this risk.  So does this mean that Ringling Brothers violates the General Duty clause every time a lion tamer gets in the ring with lions, that a magician in a Las Vegas show violates the General Duty clause by incorporating dangerous animals into an illusion, or that a petting zoo violates the General Duty clause by not limiting contact between its employees and the animals?  Maybe, but not necessarily.

Which leads me to the second and third takeaways from this case.  While the case clearly requires the employer to decide what is best for its employees, the determination of “what is best” is tempered by two considerations:  whether there is a “recognized hazard” and whether the interaction is integral to the business.  

As for whether there is a “recognized hazard” the court’s decision makes clear that employers will have a hard time arguing that an animal, or class of animals, that has a documented history of serious injury or death to humans is not a “recognized hazard.”  Both this court and the lower court took note of SeaWorld’s documentation of aggressive behavior by the whales and injuries to its trainers as proof that SeaWorld knew that its whales could be hazardous.  Circuses and zoos will likely face similar issues in the wake of an animal attack.  Absent a history of potential serious injury or death though, as may be the case with animals in a petting zoo for example, perhaps OSHA would not require similar separation of human and animal.  But what about where there is a known potential for serious injury or death?  Does the SeaWorld decision mean that there will be no more lion acts in circuses or that Las Vegas performers can no longer use tigers or elephants in its shows?  Not necessarily, because …

Courts will also consider the extent to which direct human / animal interaction is integral to the business when deciding what must be done to address recognized hazards.  Here, the court specifically mentioned that pulling SeaWorld's trainers out of the water during performances “did not change the essential nature of its business.”

There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures.  SeaWorld has itself limited human interactions.  After Ms. Brancheau’s death in 2010, SeaWorld ceased “waterwork” with all of its killer whales.  It also imposed distance between trainers and Tillikum during drywork and, to a lesser degree, between other killer whales and trainers during drywork.  These self-imposed limitations are relevant to the assessment of which aspects of SeaWorld’s businesses are essential and indicate that the Secretary’s remedy will not eliminate any essential element.  SeaWorld does not assert (and at oral argument disavowed) that a public perception of danger to its trainers is essential to its business.  Nor has SeaWorld ever argued that limiting interactions in the way that the remedy requires would have a detrimental impact in its profits.  

The question of what is or is not essential to the business is where other facets of the amusement or zoological industry may find some breathing room in this decision.  Whereas the trial court here found that pulling trainers out of the water during killer whale shows did not affect an integral part of SeaWorld's business, perhaps the same could not be said of lion tamers at the circus or Las Vegas performers.  It may well be that, unlike SeaWorld, the perception of danger in a lion taming act or an illusion during a magic show is essential to those businesses such that removing the human element would go too far.  Likewise, it may be that removing the human element from such activities would indeed have such a “detrimental impact on … profits” that total human / animal separation would not be required.  

And, while not stated by this court, this may also explain the seeming inconsistency of allowing trainers to be in the water with whales for “husbandry” purposes (i.e. cleaning and caring for the whales) but not during performances.  There may be an implicit recognition that contact with the whales during these activities is integral to these activities, as it may also be in zoos, but is not integral to other aspects of the business, such as public performances.  Again, the Court doesn’t say this in its opinion, but it is certainly consistent with its analysis. 
The bottom line here, barring the Supreme Court agreeing to take this case, is that we have seen the last of SeaWorld’s trainers in the water with orcas.  Not everyone will like that (me included), but it is the reality from here on out.  The more important question for the future is whether this will have a ripple effect that could limit human interaction with animals in other contexts.  I don’t see this case mandating such limitations, but it does provide some insight into the kinds of cases where OSHA may deem such limitations necessary and appropriate.  

UPDATE 4/14/14:  To clarify, by its terms the OSHA citations and penalties and the Court of Appeals' decision ONLY applies to SeaWorld of Florida, LLC, the entity that owns and operates SeaWorld's Orlando park.  As a technical matter, therefore, the ban on waterwork with orcas does not extend to SeaWorld's San Antonio or San Diego locations.  That said, the trial judge in this case considered evidence relating to the San Antonio and San Diego parks and specifically commented on the policy of SeaWorld Parks & Entertainment, the parent company of all SeaWorld parks, to create consistency in the animal operations between all the parks.  Thus, while not strictly applicable to these other SeaWorld locations, the Court of Appeals' decision could be be viewed as a warning of sorts about OSHA's position vis-a-vis SeaWorld's other locations should waterwork continue.  That said, there may be additional safety measures that could be implemented in San Antonio or San Diego that SeaWorld believes sufficiently distinguish these parks from Orlando so as to allow waterwork to resume notwithstanding the Court of Appeals' ruling.  Whether SeaWorld wishes to test these waters (no pun intended) is, of course, an internal business decision that I have no knowledge of and therefore cannot comment on.  Thanks to one of my readers for raising this question with me as it is a good point of clarification.


  1. I am not an expert in occupational law so this may sound obvious to some, however does OSHA have jurisdiction over any professional sports leagues? NFL in particular? The risks of playing professional football are substantial and well known, and the NFL seems to be reducing risk through calculated study and rule changes. Yes, the accident at SeaWorld is serious and tragic, however given the stats concerning the number positive whale interactions, aren't there recognized hazards in other occupations that are statistically more dangerous and should be examined?

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