590E-SYLLABUS-SPRING-2018 1.0.pdf

The first instance related to animal trainers working

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The first instance related to animal trainers working with Tilikum being exposed to “struck-by and drowning hazards” by being “allowed unprotected contact with Tilikum” while conducting “‘drywork’ performances on pool ledges, slideouts and platforms.” In SeaWorld’s terms, when trainers are out of the pool or on submerged ledges called “slideouts” in water no deeper than their knees, their interactions with killer whales are called “drywork.” Any interaction in deeper water is “waterwork.” According to the Secretary, “[a]mong other methods, one feasible and acceptable means of abatement would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier.” The second instance concerned animal trainers working with killer whales other than Tilikum who were exposed to struck-by and drowning hazards when they were “allowed to engage in ‘waterwork’ and ‘drywork’ performances with the killer whales without adequate protection.” The Secretary listed as possible abatement methods “prohibit [ing] animal trainers from working with killer whales, including ‘waterwork’ or ‘dry work,’ unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or
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Spring 2017 LER 590-E: GOVERNMENT REGULATION II 151 | P a g e other engineering or administrative controls that provide the same or greater level of protection for the trainers.” The Secretary proposed a penalty of $70,000. Following an evidentiary hearing, the Administrative Law Judge (“ALJ”) found that on February 24, 2010, a “performance” was still in progress when Tilikum seized Ms. Brancheau and pulled her into the pool water. The ALJ found that the first and third elements of a violation of the general duty clause—existence of a workplace condition presenting a hazard that likely caused death or serious physical harm—were established by the events on February 24, 2010: Ms. Brancheau’s death demonstrated that close contact with killer whales was a hazard likely to cause death or serious injury. Based on evidence regarding three previous deaths involving killer whales (beginning in 1991 with Tilikum), SeaWorld’s written training manuals and safety lectures as implemented specifically to Tilikum, and SeaWorld’s incident reports, the ALJ found that the Secretary had established by “abundant” record evidence that “SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork performances,” satisfying the second element of a violation. Further, the ALJ found that evidence, including SeaWorld’s incident reports, established that SeaWorld recognized the hazard when trainers worked in close contact with other killer whales; SeaWorld’s statistics regarding the predictability of killer whale behavior, on the other hand, were unpersuasive because not based on rigorous, scientific data. The ALJ concluded that
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