May 30, 2012 OSHA/SeaWorld Verdict in a Nutshell,

The verdict for the SeaWorld/OSHA trial is in! On May 30, 2012 the judge ruled that SeaWorld’s $75,000 “willful violation” fine in regards to Brancheau’s death would be reduced to the level of “serious” and the fine would be $12,000. This means that SeaWorld put their employees in a situation where there was “a substantial probability that death or serious physical harm could result. “

   The court determines that SeaWorld may reduce the likelihood of death or serious injury by means of feasible abatement. In other words, safety measures must be implemented to encourage trainer safety, such as physical barriers. SeaWorld argues these recommendations and “considers the extensive safety training of its trainers and the operant conditioning of its killer whales to be an adequate means of abatement that materially reduces the hazard the killer whales present to the trainers.” SeaWorld is still arguing that their ability to predict whale behavior is enough to keep their employees safe. This sets up a rigged system which automatically pins the blame on trainers when ANYTHING goes wrong with the animals.

Like most corporations, SeaWorld has incident reports which employees are to fill out should an injury take place. One question on the report is “Did the act(s) of the employee contribute to this incident?” The one who is filling out the report is asked to circle yes or no. After a 1998 incident, one commenter from SeaWorld San Diego complained that this question was even on the reports essentially saying that every incident is to be blamed on the employee. SeaWorld supervisors signed off on his comment:

“I am having a hard time understanding how the acts of the employees do not contribute to this incident. Since we condition all aspects of the behavior and the behavior broke down then we do contribute to the incident. I also seem to remember that we discussed this and said that since the answer is always yes that we would drop this from future incident reports and just assume it as such”

As you can see, the reasoning behind this statement is that SeaWorld controls their animals so much that their behavior is almost entirely predictable. So, if something goes wrong it is because a signal went under the trainer’s radar, therefore the trainer is always at fault if an animal decides to attack and injury ensues. This argument was also used during the hearings in November 2011, when Charles Tompkins, the corporate curator for zoological operations for SeaWorld, stated that captive killer whale behavior is 98% predictable or “a tick away from being 100 percent.” The court found this percentage to be dubious, saying it “is not based on rigorously evaluated scientific data.”

The response from SeaWorld’s management personnel to aggression in whales has been contradictory. In August of 2002, SeaWorld stated: “…our whales should never be viewed as routine, nor predictable.” They urged trainers not to become comfortable with the animals as they were not domesticated. The court concluded that:

“Whether the trainers were fully immersed and swimming with the killer whales for a waterwork show performance, or standing poolside or on a slideout for a drywork show performance, SeaWorld knew its trainers were at risk for being struck or drowned by a killer whale. The Secretary has established that SeaWorld knew working in close contact with killer whales was a recognized hazard.”

SeaWorld also seems to rely heavily on recall methods like hand slaps or tones which are meant to protect the employees by distracting the whale should it be found attacking a trainer. During most serious attacks and deaths, the whales did not respond to hand slaps on the water. SeaWorld’s animal training curator Ms. Flaherty Clark blames the failed recall signals on the trainers, saying: “Human nature has put some trainers in situations where they slapped the water inappropriately” Once again, higher management passes the blame off on the trainers.

This seems like a typical response coming from SeaWorld who actively blames Dawn for her own death, claiming that she must have been the one to make a mistake. Brad Andrews who testified for SeaWorld in court said “The only thing that led to this event was a mistake made by Ms. Brancheau in allowing her long hair to float out into an area that Tilikum could grab it…”  SeaWorld witnesses also blamed Alexis Martinez for his death by their whale Keto, at Loro Parque in Spain which took place only months before Brancheau’s death.

Obviously the judge did not overlook Jeff Andrew’s sub-par testimony on behalf of SeaWorld. The court was clear that Andrews did not read Brancheau’s autopsy, speak to eyewitnesses, or review investigative files regarding the incident. Many of his statements were established as unfounded and based on questionable hearsay (ie, his suggestion that Tilikum was “curious” about Brancheau’s floating ponytail as though it was a new toy, leading him to pull her into the water. Ms. Flaherty Clark gives a contradictory testimony saying that Tilikum had been exposed to long hair and dessensitized to it since his arrival at SeaWorld. Because of her personal experience regarding the whales, the court has found Flaherty Clark’s testimony to be acceptable over Andrews’.) Click here to read Andrew’s report.

Importantly, the court determined that:

“SeaWorld holds trainers to a near-impossible standard set by upper management, who engage in a form of Monday morning quarterbacking. As a commenter acknowledges in an August 2002 incident report, “Hindsight is always 20/20” Any trainer unfortunate enough to have to file an incident report is subject to second-guessing by his or her superiors, who will always find the trainer did something wrong, otherwise there would be no incident report.”

SeaWorld insisted that they did not know working with killer whales was a hazard, but after a run-in with OSHA in 2006 documents were released that determine SeaWorld’s “operant conditioning program was not working sufficiently to protect its trainers during waterwork.” Because of their access to these documents, the court has found SeaWorld’s claim to be implausible. SeaWorld also claimed that working with killer whales was not hazardous to the trainers. The court disagrees.

The documents which contained the entire verdict included several statements that were interesting in regards to SeaWorld’s place in their industry.

“…There is essentially no distinction between SeaWorld and the industry at large. As SeaWorld acknowledges in its brief, it is “the world leader in the caring for, display and showing for entertainment purposes” killer whales and other marine animals. Parks showcasing trained killer whales are few, and the people who work in these parks comprise a small, tightly-knit community. Management personnel at the parks buy and lease killer whales from each other and engage in frequent communication regarding interactions with killer whales. SeaWorld sets the industry standard for working with killer whales. For the purposes of establishing a recognized hazard, SeaWorld and the marine animal theme park industry are essentially the same.”

   The court has determined that SeaWorld Corporation cannot be considered separate from Loro Parque, or other marine parks – especially ones that house killer whales because of how connected the industry is, and how prominent SeaWorld is in the industry.

In conclusion:

    • The citation for willful endangerment to employees has been reduced to serious endangerment, and a $5,000 fine is assessed.
    • All performance interactions with the whales must involve physical barrier or feasible abatement.
    • All interactions with Tilikum must involve a physical barrier.
SeaWorld has ten days after the Judge’s final word to abate all the hazards.
There is a chance that this could go higher in the court system as SeaWorld is clearly not happy with the ruling. Also keep in mind that this information is more of a “recommendation,” and is subject to change as furthur information could be released. Because of this I have editted the title to include the date to indicate that this is just one step in what will likley be a long legal battle, rather than a final judgement.
“Are the emotions inspired by the grandeur of humans interacting with killer whales worth the dangers created by the interactions?”
The judge has finally ruled and the answer is “no.”

2 thoughts on “May 30, 2012 OSHA/SeaWorld Verdict in a Nutshell,

  1. SeaWorld’s expert was Jeff Andrews (not Brad Andrews). OSHA proposed a penalty of $70,000 for the willful violation. The Judge ruled that the violation was not willful but was serious, and he assessed a $7,000 penalty. The Judge’s ruling is not a recommendation. If not appealed, it will stand as the final decision.

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