## Facts

- SeaWorld operated killer-whale shows in which trainers performed in close proximity to orcas, including “drywork” on platforms or ledges adjacent to the pool.
- On February 24, 2010, trainer Dawn Brancheau was killed during a drywork performance when the whale Tilikum pulled her into the pool, causing traumatic injuries and drowning.
- The record showed prior dangerous incidents involving SeaWorld’s killer whales, including lunging, biting, and pulling trainers into the water; SeaWorld kept incident logs and adjusted protocols over time.
- Tilikum had a known history of aggressive behavior, including prior involvement in another trainer’s death at a different facility.
- OSHA cited SeaWorld under the OSH Act’s general duty clause for exposing trainers to the recognized hazards of being struck, bitten, or drowned while working with killer whales during performances.
- An ALJ upheld the general duty clause violation but reclassified it from “willful” to “serious” and found proposed abatements feasible; the Occupational Safety and Health Review Commission affirmed.
- After the fatality, SeaWorld ended waterwork and required trainer-whale interactions to occur behind physical barriers or at increased distance, aligning with the agency’s proposed abatements.

## Issues

1. Whether substantial evidence supported finding that SeaWorld exposed trainers to a “recognized hazard” likely to cause death or serious physical harm under 29 U.S.C. § 654(a)(1).
2. Whether the Secretary proved feasible and effective abatement measures that would materially reduce the hazard.
3. Whether applying the general duty clause to a high-risk entertainment performance exceeded OSHA’s statutory authority.
4. Whether SeaWorld had fair notice that its practices violated the general duty clause and that barriers or distancing could be required.

## Decision

- The court denied SeaWorld’s petition for review and upheld the Commission’s order.
- The court held that close-contact killer-whale performances presented a recognized hazard of serious injury or death.
- The court found substantial evidence that feasible abatements—such as physical barriers and minimum separation distances—could materially reduce the hazard.
- The court rejected the argument that entertainment activities are exempt from OSHA regulation when feasible measures can reduce severe workplace hazards.
- The court concluded SeaWorld had fair notice based on the hazard’s known history, SeaWorld’s own safety modifications, and the general duty clause’s requirements.
- A dissent argued the decision improperly extended OSHA into voluntarily risky activities akin to professional sports.

## Legal Principles

- A general duty clause violation requires proof of: (1) a workplace hazard, (2) employer or industry recognition of the hazard, (3) likelihood of death or serious physical harm, and (4) feasible measures that would materially reduce the hazard.
- Hazard recognition may be established by the employer’s own knowledge, including prior incidents, internal logs, and adoption of safety protocols reflecting awareness of the risk.
- “Feasibility” includes both technological capability and economic reasonableness; the agency must show the proposed measures would materially reduce the hazard.
- The OSH Act applies to dangerous work even when risk is foreseeable or accepted as part of the activity; an employer remains obligated to reduce recognized severe hazards when feasible.
- An employer’s post-incident implementation of safety measures may support findings that similar abatements are feasible and effective.

## Conclusion

The D.C. Circuit sustained OSHA’s general duty clause citation against SeaWorld, holding that close-contact killer-whale performances exposed trainers to a recognized, deadly workplace hazard and that feasible engineering and administrative controls, including barriers and distancing, could materially reduce the risk without eliminating the performances.


SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014)