1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 10-1705

SeaWorld of Florida, LLC,

 Respondent.

Appearances:

John A. Black, Esquire and Tremelle Howard-Fishburne, Esquire

Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia

For Complainant

Carla J. Gunnin Stone, Esquire

Constangy, Brooks & Smith, LLC, Atlanta, Georgia

 For Respondent

Karen C. Dyer, Esquire and Jon L. Mills, Esquire

Boies, Schiller & Flexner, LLP, Orlando, Florida

For Intervenor

Before: Administrative Law Judge Ken S. Welsch

 

DECISION AND ORDER

SeaWorld of Florida, LLC, is a marine animal theme park in Orlando, Florida. Although it 

features several different species of animals, killer whales are SeaWorld’s signature attraction. The 

killer whales perform in shows before audiences at Shamu Stadium.

On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a 29 

year-old male killer whale, in a pool at Shamu Stadium. Ms. Brancheau reclined on a platform 

located just a few inches below the surface of the water. Tilikum was supposed to mimic her 

behavior by rolling over onto his back. Instead, Tilikum grabbed Ms. Brancheau and pulled her off 

the platform and into the pool. Ms. Brancheau died as a result of Tilikum’s actions. 
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In response to media reports of Ms. Brancheau’s death, Occupational Safety and Health 

Administration (OSHA) compliance officer Lara Padgett conducted an inspection of SeaWorld. 

Based on Ms. Padgett’s inspection, the Secretary issued three citations to SeaWorld on August 23, 

2010. 

Citation No. 1 alleges a serious violation of 29 C. F. R. § 1910.23(d)(1), for failing to equip 

two stairways with standard stair railings on each side of the stairways. The Secretary proposed a 

penalty of $ 5,000.00 for this item. Citation No. 2 alleges two instances of a willful violation of the 

general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970 (Act), 29 U. S. C. 

§§ 651-678, for exposing animal trainers to struck-by and drowning hazards when working with 

killer whales during performances. The Secretary proposed a penalty of $ 70,000.00 for this item. 

At the hearing, the Secretary withdrew Citation No. 3, which alleged an other than serious violation 

of 29 C. F. R. § 1910.305(j)(2)(v), for failing to enclose outdoor electrical receptacles (Tr. 1232). 

SeaWorld timely contested the citations. The court held a nine-day hearing in this matter in 

Sanford, Florida, from September 19 to 23, 2011, and from November 15 to 18, 2011. SeaWorld 

stipulates the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and that it 

is a covered business under § 3(5) of the Act (Tr. 7). The Secretary and SeaWorld have each filed a 

post-hearing brief.1

SeaWorld denies it violated § 1923(d)(1), cited in Citation No. 1. With respect to Citation 

No. 2, SeaWorld argues that the Secretary failed to establish the conditions at Orlando’s Shamu 

Stadium created a recognized hazard to the trainers working with the killer whales during 

performances. SeaWorld also argues the Secretary failed to offer a feasible abatement for the alleged 

recognized hazard. In the event the court finds the Secretary established a violation of § 5(a)(1), 

SeaWorld contends that the violation was not willful.

For the reasons discussed below, the court affirms Item 1 of Citation No. 1, and assesses a 

penalty of $ 5,000.00. The court affirms as serious Instances (a) and (b) of Item 1 of Citation No. 2, 

 

1 The court allowed a limited intervention on the part of Scott Brancheau, Marion Loverde, Charles Loverde, 

and Deborah Frogameni (respectively, husband, mother, brother, and sister of Dawn Brancheau) in the interest of 

protecting the surviving family’s right to privacy. Specifically, the intervenors sought to prevent the public disclosure of

certain videotapes and photographs showing the death of Dawn Brancheau and its aftermath. Counsel for the intervenors 

attended the hearing, but did not present evidence or examine witnesses. The intervenors have not filed a post-hearing 

brief.
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and assesses a penalty of $ 7,000.00. 

Background

The first SeaWorld opened in 1964 in San Diego, California. Following its success, the 

original owners opened a second SeaWorld (since closed) in Aurora, Ohio. In 1973, they opened 

respondent’s facility, Sea World of Florida, LLC, in Orlando, Florida. The owners sold the parks to 

Harcourt Brace Jovanovich (HBJ) in 1976. In 1988, HBJ opened Sea World of Texas in San 

Antonio, Texas. HBJ sold its parks in 1989 to Busch Entertainment Corporation, a division of 

Annheuser Busch. In 2009, the Blackstone Group bought Busch Entertainment Corporation and 

renamed it SeaWorld Parks & Entertainment. SeaWorld Parks and Entertainment is headquartered 

in Orlando, Florida (Tr. 570-571). The logo for all of SeaWorld’s parks is a stylized killer whale.

Killer whales (Orcinus orca) are large aquatic mammals of the order Cetacea. Cetaceans are 

mammals well-suited to aquatic life, including whales, dolphins, and porpoises. Killer whales are 

found in all oceans of the world. They live in long-term social groups, called pods. Killer whales 

are highly intelligent and their social system is organized in a complex, female-dominant hierarchy. 

Killer whales are “apex predators,” at the top of the food chain. They are called killer whales 

because they prey on other, larger whales, as well as other marine animals. Killer whales are not 

known to prey on humans in the wild (Exh. C-12; Tr. 843).

Kelly Flaherty Clark began working for SeaWorld of Ohio2in 1987 after graduating from 

Ohio State University with a degree in Animal Science (Tr. 134, 1509). Later she transferred to the 

Orlando park. At the time of the hearing, Ms. Flaherty Clark was the curator of animal training at 

SeaWorld (Tr. 33). As curator, Ms. Flaherty Clark oversees the trainers in four animal training 

programs: the Animal Ambassadors (made up of trainers who take trained animals to visit children 

in schools and hospitals, among other community appearances), the Sea Lion and Otter Stadium 

trainers, the Whale and Dolphin Stadium trainers, and the Shamu Stadium trainers (Tr. 34). 

Approximately 27 trainers work at SeaWorld (Tr. 38).

Shamu Stadium

Each SeaWorld park features a Shamu Stadium (Shamu was the name of the first killer whale 

 

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In this Decision, the court will refer to respondent SeaWorld of Florida, LLC, as “SeaWorld.” When referring 

to SeaWorld Parks & Entertainment or to one of the other SeaWorld parks, the court will use its full name.
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acquired by SeaWorld of California) where the killer whales perform. Shamu Stadium is a large 

complex of pools, connected by gates, which house the killer whales. Some of the pools are open 

and visible to the general public, while others are enclosed and accessible only to SeaWorld 

personnel (Exh. C-2; Tr. 214). At the time of the hearing, SeaWorld was home to seven killer 

whales. (SeaWorld of California and SeaWorld of Texas each kept six killer whales. In addition, 

SeaWorld Parks & Entertainment had leased five killer whales to Loro Parque in Tenerife, Spain (in 

the Canary Islands), and one killer whale to MarineLand in Niagara Falls, Ontario, Canada.) (Tr. 38-

39). 

Tilikum has been at SeaWorld’s Orlando park since 1992, and is one of its star attractions. 

The average adult killer whale at SeaWorld weighs approximately 6,000 pounds and is 

approximately 17 feet long. Tilikum weighs approximately 12,000 pounds and is approximately 22 

feet long (Exh. C-7). He is approximately 8 feet tall (Tr. 600). Tilikum is the largest killer whale in 

the collection of SeaWorld Parks & Entertainment.

SeaWorld’s Training of the Trainers

Newly-hired employees hoping to work with killer whales may wait years before achieving 

their goal. SeaWorld observes a strict hierarchy, under which employees must work their way up to 

a position where they are allowed to interact with a killer whale or whales. Ms. Flaherty Clark 

explained SeaWorld’s training program:

When [prospective trainers] come to the stadium, the first thing we do is we teach 

people how to move about the stadium, we show them where our protocols are, and 

they are assigned a mentor from the very beginning, and the mentor is somebody who 

has been training killer whales for at least eight or nine years. . . 

Before a trainer ever approaches a pool with a killer whale, they have learned a lot 

about behavior, they have learned about killer whale natural history, they have 

learned about how to walk about the area on the different surfaces that we have, they 

have learned about how you carry buckets, and that’s all before approaching within 

ten feet of the pool.

(Tr. 85-86).

The mentor uses a check-off sheet to track the new trainer’s progress. At this level the new 

trainer is referred to as an associate trainer. The mentor records the training documents read by the 
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associate trainer and constantly assesses the associate trainer’s skill level. The associate trainers 

shadow various activity sessions. After eighteen months to two years, an associate trainer may 

advance to the trainer level, at which point he or she may experience the first close interaction with a 

killer whale (Tr. 87). Ms. Flaherty Clark defined a “close interaction” as “anywhere within five feet 

of the killer whale,” and distinguished it from a “tactile interaction,” during which a trainer may 

actually touch a killer whale (Tr. 88). Once a trainer advances to the senior trainer level, the senior 

trainer may have limited tactile interactions with designated killer whales. The highest nonmanagement level in SeaWorld’s hierarchy is senior trainer 1 (Exh. C-1, Section IX). 

Ms. Flaherty Clark emphasized only more experienced trainers are allowed to proceed 

beyond a close interaction: “[T]he closer you’re going to be getting to the killer whale, the more 

decisions you’re going to be making with the killer whale, more training is poured into you. And, 

you won’t be the person poolside making decisions, behavioral decisions with the killer whale until 

you’ve been interacting with killer whales for more than three years” (Tr. 88). Advances in trainer 

levels are approved by SeaWorld’s behavior review committee. The committee reviews and 

approves individual trainers for different interactions with the animals, and also approves the animals 

for certain interactions (Tr. 299).

Any interaction a SeaWorld trainer has with a killer whale where the water is higher than 

knee-deep on the trainer is considered “waterwork.” Waterwork often requires the trainer to be 

immersed in the pool with the killer whale. “Drywork,” which is something of a misnomer, is any 

interaction a trainer has with a killer whale where the water is less than knee-deep on the trainer. 

During drywork a trainer may be completely out of the water, standing on the side of the pool. 

Drywork also includes interactions during which the trainer is on one of the slideout platforms 

located beneath the surface of the pool. Ms. Brancheau was engaged in drywork with Tilikum when 

she was lying down on the slideout, in several inches of water on February 24, 2010 (Tr. 124, 128).

SeaWorld’s Training of the Killer Whales

The foundation of SeaWorld’s training of the killer whales is operant conditioning. 

SeaWorld uses positive reinforcement to modify the killer whales’ behavior, increasing the 

frequency of desirable behavior and decreasing the frequency of undesirable behavior (Tr. 128-129). 

Trainers reinforce desirable behavior by rewarding killer whales with food (fish, Jell-O, ice), 
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physical rubdowns, or other activities the trainers believe the whales enjoy.3 When a killer whale 

engages in an undesirable behavior, the trainer ignores the behavior. In operant conditioning terms, 

this neutral response is referred to as a “least reinforcing scenario” (LRS) (Tr. 402).

SeaWorld uses a technique called water desensitization, or de-sense, to acclimate the killer 

whales to the trainers’ presence in the pools with them. SeaWorld’s goal is to train killer whales to 

ignore trainers unless a trainer signals them to interact for a specific learned behavior. Ms. Flaherty 

Clark testified:

When we’re first introducing ourselves to the animals in the water, we first train 

them to ignore us, to completely ignore us. No matter how much activity is going on 

in the pool, concentrate on the trainer, the trainer has control of you, or on the 

behavior you have been asked to do. And one of those behaviors is a perimeter 

swim. . .

[W]e would start with a whale swimming past us and just ignoring us. We’re not in 

the water at all, or on the surface of the pool. We’re on a flat surface, and then we 

might go into ankle-deep water, and we would get a lot of reinforcement activity into 

them, not interacting with us, swimming past us.

And, as we progress, we’re in the water with them, and then we’re trying to swim 

with them, and then we’re trying to distract them, and they’re still maintaining that 

perimeter. Then we’re going out to the middle of the pool and maintaining that 

perimeter. So they’re desensitized and we continue.

(Tr. 126-127).

Not all killer whales are amenable to water desensitization. Prior to Ms. Brancheau’s death, 

management personnel in the SeaWorld parks had determined that trainers should not perform 

waterwork with certain killer whales. SeaWorld of California suspended waterwork with killer 

whales Kasatka and Orkid in 2006, following incidents in which they were aggressive towards 

trainers (Tr. 159).

 

3 The witnesses tried to avoid assigning emotions to the killer whales, or asserting that they knew what the 

whales were thinking in any given set of circumstances. Under SeaWorld’s behaviorist model, SeaWorld’s employees 

focus on behavior only. “[I]nternal states, thoughts, perceptions, emotions, all those things that are unobservable are not 

useful” (Exh. C-12, p. 5, Report of D. A. Duffus, Ph.D.) Nevertheless, witnesses often spoke of the killer whales 

enjoying certain activities or becoming frustrated in certain circumstances. Jeffrey Andrews, SeaWorld’s expert witness, 

stated, “Sometimes it’s okay to be anthropomorphic. We try our best to avoid being anthropomorphic for fear of 

scrutiny. . . . [T]here are more and more studies that are being done nowadays that are looking into the deeper emotions 

of animals” (Tr. 1656).
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SeaWorld did not allow trainers to engage in waterwork with Tilikum, but it did attempt a 

modified water desensitization with him. Ms. Flaherty Clark explained that senior trainers were 

performing “limited exposure waterwork with Tilikum” under controlled circumstances: 

We wanted rehearsal of Tilikum moving away from somebody in the water. 

We wanted a reinforcement history attached with leaving a person in the water 

because we understood the reinforcement history to be that he had had in his life two 

interactions where there was a person in the water with him. Neither one of those 

interactions turned out favorably. So, being responsible and safety conscious, we 

wanted to establish a reinforcement history with leaving a person. So, we asked 

Tilikum to come into a pool that is in a restricted area.

We raised the floor of the pool. We had the capability of raising the floor up 

to where he was incapable of swimming but capable of moving, and we had trainers 

point him away, we had trainers calling him away[.]

(Tr. 153). Despite these training sessions, SeaWorld did not consider Tilikum to be water 

desensitized (Tr. 173).

Although SeaWorld trains the killer whales to respond appropriately to the trainers’ signals, 

the company places the burden on the trainers to anticipate inappropriate responses. Ms. Flaherty 

Clark testified, “We put a lot of training into the individuals, we put a lot of training into them before 

they are ever going to have an interaction with the killer whales. My expectation is that they will be 

able to recognize any kind of precursor to an unwanted killer whale behavior” (Tr. 116).

A precursor is a behavior that indicates a predictable behavior will happen next (Tr. 142). 

Precursors that indicate killer whales may engage in aggressive behavior include putting their heads 

down, avoiding eye contact with their trainers, opening their eyes wider, vocalizing, opening their 

mouths towards another animal, turning sideways, pulling away from the trainer, aching their backs, 

slapping their tails or their pectoral flippers, and changing the pace or the rotation of their approaches 

(Tr. 145).

Killer Whale Activities

 SeaWorld uses an acronym, “HELPRS,” to distinguish six discrete activities during which 

trainers interact with the killer whales. SeaWorld labels the six activities as:

 H--Husbandry

 E--Exercise
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 L--Learning

 P--Play

 R--Relationship

 S—Show 

(Tr. 390-391).

“Show” refers to show performances (the only one of the six activities that is at issue in this 

case). As SeaWorld’s HELPRS acronym indicates, the performances account for only a small 

portion of the daily interactions between the trainers and the killer whales. “Exercise” and “play” are 

self-explanatory. “Husbandry” includes feeding and medical care, such as daily tooth flushing and 

collecting of urine samples (trainers assist SeaWorld’s veterinarians in obtaining samples and 

performing procedures) (Exh. R-2, § V). “Learning” represents the training sessions, both for show 

and non-show behaviors, through the use of operant conditioning. “Relationship” indicates 

techniques used to strengthen the bond between the trainer and killer whale.

Jennifer Mairot is SeaWorld’s supervisor of animal training at Shamu Stadium (Tr. 1265). 

She testified the number of daily performances varies, but generally a killer whale will perform from 

two to seven shows a day. Each show lasts approximately 30 minutes (Tr. 1433). The time during 

which trainers are in contact with killer whales during performances ranges from one to three and a 

half hours each day. The trainers spend much more time during the day interacting with the killer 

whales during other activities. 

Death of Dawn Brancheau

On February 24, 2010, SeaWorld trainers Dawn Brancheau, John (“Jay”) Topeleski, and 

Lynne Schaber were working with Tilikum during a performance in the G Pool called “Dine with 

Shamu.” Seating for “Dine with Shamu” is at the open-air Cove Restaurant, where customers can 

eat at tables while watching the performance (Tr. 217-218). The trainers would have the killer whale 

or whales perform certain behaviors, and afterward customers could go downstairs and photograph 

or film the whale or whales below the surface of the G Pool through an underwater window (the 

customers attending the “Dine with Shamu” show were not necessarily the same customers who 

photographed the whales afterwards downstairs, which was a separate event) (Tr. 743). 

Ms. Brancheau, a supervisor, walked into the G Pool on an underwater platform called a 
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slideout, which lay several inches (about ankle deep) below the water. Ms. Brancheau performed a 

behavior called a lay out mimic. She lay on her back, parallel to Tilikum, with her head near his 

head. Tilikum was supposed to mimic Ms. Brancheau and roll onto his back. Tilikum grabbed 

Brancheau and pulled her into the pool (Tr. 745).

SeaWorld repeatedly states in its post-hearing brief that Tilikum grabbed Ms. Brancheau by 

her ponytail. This was not established as a fact at the hearing, and it is in dispute. One witness, 

spotter John Topoleski, testified he saw Ms. Brancheau get up on her knees and put her hands to her 

ponytail: “She could not break free. She had both hands on her pony tail being pulled toward the 

water” (Tr. 745-746). 

Another witness, however, testified Tilikum grabbed Ms. Brancheau by her arm and not her 

hair. Fredy Herrara was working as a security officer for SeaWorld during the Dine with Shamu

show. Mr. Herrara testified he saw Tilikum grab Ms. Brancheau’s arm and pull her into the water 

(Tr. 247). On cross-examination, counsel for SeaWorld questioned Mr. Herrara’s observation. Mr. 

Herrara, who still worked for SeaWorld at the time of the hearing, stated, “From my angle, I saw her 

left arm go into the water as the whale started descending into the water. So, I’m not sure if he 

grabbed her arm or her hair, I don’t know, but I saw her arm do like a left hand signal going into the 

water” (Tr. 249). Mr. Herrara, a former police officer, provided a written statement to the Orlando 

Police Department within an hour of Ms. Brancheau’s death. In his statement, Mr. Herrara wrote 

that he observed Tilikum grab Ms. Brancheau’s arm and pull her into the water (Tr. 251-253). 

Mr. Topoleski hit an alarm to alert other personnel of the emergency situation (Tr. 746). He 

also activated a call-back tone, which is an underwater signal SeaWorld uses in its training. 

SeaWorld trains the killer whales to swim to a certain area of the pool when they hear the tone. 

Tilikum did not respond to the call-back tone, nor did he respond to the trainers slapping the water, 

another technique SeaWorld uses to redirect the killer whales. Eventually SeaWorld trainers were 

able to coerce Tilikum into the smaller medical pool. Emergency personnel were then able to 

retrieve Ms. Brancheau’s body from the G Pool. She had sustained grievous injuries. Tilikum had 

kept Ms. Brancheau in the G Pool for approximately 45 minutes (Tr. 756).

At the hearing, SeaWorld’s employees repeatedly stated that Tilikum exhibited no precursors 

that indicated he might engage in aggressive behavior, and that Ms. Brancheau correctly followed all 
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of SeaWorld’s protocols during her interaction with him. In response to Ms. Brancheau’s death, 

SeaWorld Parks & Entertainment has suspended water interactions between its trainers and all of its 

killer whales, except for husbandry activities, in all of its SeaWorld parks (Tr. 78-80). SeaWorld 

continues to put on shows at Shamu Stadium featuring killer whales (Tr. 82-83). 

DISCUSSION

Citation No. 1

The Secretary has the burden of establishing the employer violated the cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a 

preponderance of the evidence that (1) the cited standard applies; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees had access to the 

violative condition; and (4) the cited employer either knew or could have known with 

the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Item 1: Alleged Serious Violation of § 1910.23(d)(1)(iii)

Citation No. 1 alleges SeaWorld violated § 1910.23(d)(1)(iii) in two instances:

29 CFR § 1910.23(d)(1)(iii): Flight(s) of stairs with 4 or more risers, less than 44 

inches wide and having both sides open are not equipped with one standard stair 

railing on each side:

Instance a) Employees were exposed to a 10’3” fall hazard in that, a stairway 

railing system was not installed on the front side left bridge of the Believe stage in 

Shamu Stadium.

Instance b) Employees were exposed to a 10’ 3” fall hazard in that, a 

stairway railing system was not installed on the front side right bridge of the Believe 

stage in Shamu Stadium.

Section 1910.23(d)(1)(iii) provides:

Every flight of stairs having four or more risers shall be equipped with standard stair 

railings or standard handrails as specified in paragraphs (d)(1)(i) through (v) of this 

section, the width of the stair to be measured clear of all obstruction except handrails:

. . .

(iii) On stairways less than 44 inches wide having both sides open, one stair railing 

on each side.
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The A Pool at Shamu Stadium is shaped in a half-circle, with stadium seats located along the 

curved side and the Believe stage located along the straight edge. At each end of the Believe stage is 

a pool gate leading to the B Pool. Bridges with stairways on each side arch over the pool gates. 

Although there are stairway railings on the sides of the stairways closest to the stage, there are no 

railings on one side of each of the stairways facing the stadium seats. Exhibit C-10 is a set of four 

photographs showing the cited stairways.

Applicability of the Cited Standard

It is the Secretary’s burden to show that the cited standard applies to the cited conditions. 

The cited standard is found in Subpart D (Walking-Working Surfaces) of OSHA’s general industry 

standards. Section 1910.23 generally covers “Guarding floor and wall openings and holes,” and 

§1910.23(d)(1)(iii) specifically addresses “Stairway railings and guards.” The stairways on the 

bridges each have ten risers, are less than 44 inches wide, and are open on both sides.

SeaWorld argues the cited standard does not apply in this case:

In the walking-working surfaces proposed standard that was issued on May 

24, 2010, there is an exception for entertainment stages with regards to guardrails. 

As stated in proposed section 1910.28(a)(1): “This section does not apply to: Fall 

hazards presented by the exposed perimeters of entertainment stages.”

(SeaWorld’s brief, pp. 49-50). 

SeaWorld is referring to the Walking-Working Surfaces and Personal Protective Equipment 

(Fall Protection Systems); Proposed Rule, 75 Fed. Reg. 28861-29175 (May 24, 2010). This 

proposed rule is, as SeaWorld notes, proposed. It has not been enacted. The proposed exemption for 

entertainment stages is not currently available to employers. Furthermore, the Secretary proposed

this rule on May 24, 2010, three months after OSHA began its inspection of SeaWorld. 

SeaWorld’s contention that the cited standard does not apply to the cited conditions is 

rejected. Section 1910.23(d)(1)(iii) applies to the stairways cited in Shamu Stadium.

Failure to Comply with the Terms of the Standard

The cited standard requires standard stair railings on the sides of stairways that have four or 

more risers and that are less than 44 inches wide. Exhibit C-10 shows that the cited stairways each 

have more than four risers. Ms. Padgett measured the stairways and found them to be less than 44 
12

inches wide. The topmost unguarded steps were 10 feet, 3 inches, above the bridge platforms (Tr. 

924). The required stair railings were missing on two of the stairways. The Secretary has 

established SeaWorld failed to comply with § 1910.23(d)(1)(iii).

Employee Access to Violative Condition

SeaWorld’s employees used the stairways on a daily basis. The third photograph of Exhibit 

C-10 shows two employees ascending the left stairway of the right bridge during a Believe show. At 

the time of the hearing, Shana Groves was a senior animal trainer with SeaWorld (Tr. 669). Ms. 

Groves testified that trainers were required to carry buckets of fish, each weighing approximately 30 

pounds, up and down the unguarded stairways (Tr. 681-682, 728). 

The Secretary has established SeaWorld’s employees had access to the unguarded stairways, 

and were exposed to the resulting fall hazards.

Employer Knowledge

The Secretary must establish SeaWorld had either actual or constructive knowledge of the 

unguarded stairways. The stairways are located on either side of the main stage in Shamu Stadium, 

where trainers and killer whales perform before public audiences on a daily basis. The stairways are 

in open view and are plainly visible to anyone in the stadium (Exh. C-10). At the time of the 

hearing, Jennifer Mairot was a supervisor of animal training at Shamu Stadium (Tr. 1265). Ms. 

Mairot worked with five other members of SeaWorld’s management team in supervising the animal 

trainers (Tr. 1268). She testified that a supervisor was present on stage during every performance 

(Tr. 1278). 

The Secretary has established numerous supervisory personnel had constructive knowledge 

that the cited stairways were missing stair railings. As supervisors, their knowledge is imputed to 

SeaWorld. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (“[W]hen a 

supervisory employer has actual or constructive knowledge of the violative conditions, that 

knowledge is imputed to the employer, and the Secretary satisfies [her] burden of proof without 

having to demonstrate any inadequacy or defect in the employer’s safety program.”) SeaWorld knew 

the stairways were not equipped with the required stair railings.

Serious Classification

The Secretary has established SeaWorld committed a violation of § 1910.23(d)(1)(iii). She 
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classified this item as serious. Under § 17(k) of the Act, a violation is serious “if there is a 

substantial probability that death or serious physical harm could result from” the violative condition.

SeaWorld contends this violation should be classified as de minimis. It bases this argument 

on OSHA’s Field Operations Manual (FOM), which provides in pertinent part:

De minimis conditions are those where an employer has implemented a 

measure different than one specified in a standard, that has no direct or immediate 

relationship to safety or health. Whenever de minimis conditions are found during an 

inspection, they shall be documented in the same manner as violations. 

A. Criteria. 

. . .

2. An employer complies with a proposed OSHA standard or amendment or a 

consensus standard rather than with the standard in effect at the time of the inspection 

and the employer's action clearly provides equal or greater employee protection.

FOM, CPL 02-00.148, p. 4-36.

As previously discussed, OSHA has issued a proposed rule exempting entertainment stages 

from the requirement for guardrails. 75 Fed. Reg. 28861-29175 (May 24, 2010). SeaWorld argues 

the unguarded stairways on the Believe stage meet the criteria for de minimis classification. The 

court disagrees.

The FOM is an internal publication for OSHA personnel. It provides guidelines for 

compliance officers and other OSHA personnel for conducting inspections and recommending 

citations. It creates no binding authority and holds no precedent for the Commission. The FOM 

opens with a disclaimer which states, “No duties, rights, or benefits, substantive or procedural, are 

created or implied by this manual.” CPL 02-00.148. The FOM’s guidelines for issuing a de minimis 

violation have no influence on the court’s determination of the appropriate classification for this 

item.

Assuming the FOM did hold sway over the court’s determination, the conditions cited here 

do not meet the definition for de minimis conditions set out in the FOM. The FOM allows for a de 

minimis classification when the employer’s technical noncompliance with a standard “has no direct 

or immediate relationship to safety or health.” Here, the absence of the stair railings exposed 

employees to falls exceeding 10 feet. An examination of the second photograph of Exhibit C-10 
14

shows that an employee falling from the highest step would land either on the hard bridge platform, 

on the smaller gate structure, or in the pool, possibly in the vicinity of one or more of the killer 

whales. Serious injuries (including broken bones) or death would likely result from such a fall (Tr. 

924). 

The Secretary appropriately classified the violation as serious. Item 1 of Citation No. 1 is 

affirmed.

Citation No. 2

Item 1: Alleged Willful Violation of § 5(a)(1)

The Secretary alleges SeaWorld committed a willful violation of the general duty clause, § 

5(a)(1). Item 1 cites two instances of the violation. Instance (a) addresses hazards created when 

trainers engage in drywork during performances with Tilikum. Instance (b) addresses hazards 

created when trainers engage in waterwork and drywork during performances with all other killer 

whales kept at SeaWorld.

Item 1 of Citation No. 2, Instance (a) alleges:

At the Shamu Stadium pools, animal trainers working with Tilikum, a killer whale 

with known aggressive tendencies and who was involved in the 1991 death of a 

whale trainer at a marine park in Vancouver, British Columbia, were exposed to 

struck-by and drowning hazards in that they were allowed unprotected contact with 

Tilikum while conducting “drywork” performances on pool ledges, slideouts and 

platforms, on or about 2/24/2010.

Among 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.

Item 1 of Citation No. 2, Instance (b) alleges:

At the Shamu Stadium pools, animal trainers working with killer whales other than 

Tilikum were exposed to struck-by and drowning hazards in that they were allowed 

to engage in “waterwork” and “drywork” performances with the killer whales without 

adequate protection, on or about 2/24/2010.

Among other methods, feasible and acceptable means of abatement would prohibit 

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 other engineering or 

administrative controls that provide the same or greater level of protection for the 
15

trainers. 

Performances

Instances (a) and (b) charge SeaWorld with violating § 5(a)(1) by permitting trainers to work 

in contact with killer whales during “performances.” In order to establish the cited violation for 

Instance (a), the Secretary must prove that Tilikum and Ms. Brancheau were interacting during a 

performance when he seized her on February 24, 2010.

The activity SeaWorld labels “show” is the activity the Secretary labels “performance” in the 

citation (at the hearing, witnesses sometimes used the term “show performance”). Ms. Flaherty 

Clark explained SeaWorld’s designation: “A show performance is a series of interactions with 

animals that are much like any other interactions with our animals. The difference between a show 

performance with our animals and any other interaction is there is an audience and there’s a sound 

system” (Tr. 40-41). SeaWorld contends there is no clear demarcation between a performance and 

other interactions with the killer whales. Ms. Flaherty Clark pointed out that the show performances 

are not markedly different from the non-show activities: 

When it comes to interacting with our killer whales, a show performance is 

much like everything else that happens in the stadium. . . . [T]here isn’t any 

difference between the objective of the show and the objective of the other 

interactions we do. . . . We will make a plan before a show. The plan will have 

different components, different animals or different behaviors. What you would see 

in the show, however, will contribute to the training in the back. What happens in 

the back will contribute to the training in the show.

(Tr. 41-42). 

Ms. Flaherty Clark downplayed the performance aspect of “Dine with Shamu”: “The ‘Dine 

with Shamu’ was more of a guest show. It was more of a—it doesn’t have the music soundtrack, it 

doesn’t have as many whales performing in it” (Tr. 111). Assuming Tilikum’s appearance during 

“Dine with Shamu” was a performance, Ms. Flaherty Clark considered it to be over at the time 

Tilikum grabbed Ms. Brancheau. She stated:

I would define the conclusion of the show as when the guests are thanked for 

coming in. Tilikum was still in the pool; Dawn was doing a fun relationship building 

interaction with him following a good performance in the show. So, she progressed 
16

from being on the side close to the dining guests, she progressed and went around to 

the other side of the pool and was still interacting with Tilikum. The performance of 

“Dine with Shamu” performance for the guests was mostly ended.

(Tr. 110).

Mr. Topoleski worked as a spotter during show. He testified, “I was doing two duties. One 

was being a host for the “Dine with Shamu” show and also operating and monitoring Dawn and 

Lynne and, of course, the guests in the environment making sure that everything was as safe as it 

possibly could be” (Tr. 742-743). Mr. Topoleski used a microphone to narrate the events as the 

customers dined in the seating area, watching Tilikum and Ms. Brancheau interact. 

The court determines that “Dine with Shamu” was a performance that was still in progress 

when Tilikum seized Ms. Brancheau and pulled her into the water on February 24, 2010. 

“Performance” indicates some sort of presentation before an audience. The customers for “Dine 

with Shamu” assembled at a designated time to watch Tilikum interact with SeaWorld’s trainers. 

They listened as Mr. Topoleski, acting as the host, spoke over a sound system during the interactions. 

Exhibit C-4 is a video taken by a customer attending the “Dine with Shamu” show. It shows 

the trainers signaling and feeding Tilikum from the side of the pool. After Tilikum performs the 

signaled behaviors, audience members can be heard applauding and commenting. Mr. Topoleski 

encourages the audience members’ reactions. At approximately the 13:52 mark, Mr. Topoleski can 

be heard saying, “We hope you enjoyed the show. Please enjoy the rest of your day. Goodbye.” The 

video continues for another minute and 45 seconds (it appears there may be a couple of edits during 

that time). For the sake of the Brancheau family’s privacy interests, the video was edited to end 

immediately before Tilikum grabbed Ms. Brancheau. It is evident, however, that “Dine with Shamu” 

customers were still in attendance at that point, watching Ms. Brancheau interact with Tilikum and 

commenting on the activity. The camera operator panned to audience members standing in the 

restaurant area and watching Tilikum and Ms. Brancheau as Ms. Brancheau reclined on the slideout 

for the layout mimic behavior. Other guests (for a separate charge) were headed to the downstairs 

viewing area where they were permitted to take photos or videos of Tilikum while a trainer posed 

beside the window (Tr. 743). Although Mr. Topoleski had concluded his narration, Tilikum and the 

trainers were still before audience members, who were watching Ms. Brancheau attempting to 
17

interact with Tilikum for a lay out mimic. Tilikum and Ms. Brancheau were engaged in a 

performance at that point. 

The Experts

The Secretary and SeaWorld each presented an expert witness at the hearing. The Secretary’s 

expert witness was Dr. David Duffus, an associate professor at the University of Victoria (Exh. C13). He studies killer whales in their natural habitat. The court qualified Dr. Duffus as an expert in 

determining the predictability of behavior in killer whales (Tr. 822).

In its brief, SeaWorld argues the court should not have allowed Dr. Duffus to testify at the 

hearing. SeaWorld states, “Dr. Duffus had no experience observing trainer interaction with any 

animals much less killer whales in a zoo or aquarium setting, had never trained any animals much 

less killer whales, and had no experience whatsoever with the veterinary or husbandry procedures 

required for captive whales” (SeaWorld’s Brief, p. 36). This is the same argument SeaWorld made 

earlier in its motion to exclude the testimony of Dr. Duffus, which the court denied. In its brief, 

SeaWorld asks the court to strike the testimony of Dr. Duffus. The court declines to do so. Dr. 

Duffus proved to be a credible, informative witness whose opinions assisted the court. 

SeaWorld’s expert witness was Jeffrey Andrews, associate curator of mammals at the San 

Diego Zoo. Mr. Andrews works primarily with elephants (Tr. 1593). From 1985 to 2001, Andrews 

worked as a trainer at SeaWorld (Tr. 1594). Mr. Andrews has a Bachelor’s Degree from San Diego 

State University in the field of social sciences and a Master’s Degree from George Mason University 

in the field of exotic animal collection management (Exh. R-6). The court qualified Mr. Andrews as 

an expert in operant conditioning, behaviors and training of killer whales, safely working around 

killer whales, and the feasibility of abatement methods offered by the Secretary for the alleged 

recognized hazard in this case (Tr. 1699-1700).

Elements of a § 5(a)(1) Violation

The elements of proof for a § 5(a)(1) violation differ from the elements of proof for a § 

5(a)(2) OSHA standard violation. 

Section 5(a)(1) of the Act mandates that each employer “furnish to each of his 

employees employment and a place of employment which are free from recognized 

hazards that are causing or are likely to cause death or serious physical harm to his 

employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the general duty 
18

clause, the Secretary must show that: (1) a condition or activity in the workplace 

presented a hazard; (2) the employer or its industry recognized the hazard; (3) the 

hazard was likely to cause death or serious physical harm; and (4) a feasible means 

existed to eliminate or materially reduce the hazard. Pegasus Tower, 21 BNA OSHC 

1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No. 01-0547, 2005).

Erickson Air-Crane, Inc., (No. 07-0645, 2012).

The first and third of these four elements are established by the events of February 24, 2010: 

working in close contact with killer whales presents a hazard to trainers, and the hazard is likely to 

cause death or serious physical harm. The tragic death of trainer Dawn Brancheau, who was engaged 

in a drywork performance with Tilikum, is sufficient evidence to establish these elements. 4 

SeaWorld disputes that the hazard was “recognized,” either by itself or by its industry. The 

company also contends the Secretary failed to establish a feasible means exists to eliminate or 

materially reduce the hazard.

Recognized Hazard

The Secretary must establish that SeaWorld or its industry recognized the hazard presented 

when trainers are working in close contact during drywork or waterwork with killer whales during 

performances. The Secretary asserts SeaWorld itself, as well as the marine animal theme park 

industry, was aware of the hazard presented when trainers worked in close contact with (Instance (a)) 

Tilikum and (Instance (b)) other killer whales during performances. 

At the hearing, SeaWorld attempted to distance itself from the other SeaWorld parks and 

from Loro Parque, noting that it is a separate corporate entity. In this way SeaWorld hoped to 

minimize evidence that working closely with killer whales is a recognized hazard, since many of the 

aggressive interactions between killer whales and trainers occurred at other parks, and the most 

recent trainer death occurred at Loro Parque. The record establishes, however, that the operations of 

 

4

SeaWorld argues in its post-hearing brief that working in close contact with killer whales does not, in fact, 

present a hazard to trainers. SeaWorld conflates the elements of “hazard” and “recognized hazard,” arguing that its 

historically low incidence of deaths and injuries demonstrates the chance of a hazardous interaction is minimal. 

SeaWorld also argues that there is no recognized hazard because “the risk of drowned or struck by injuries when 

interacting with killer whales in accordance with the protocols is so minimal as to be improbable and a far cry from a 

hazard” (SeaWorld’s brief, p. 23, emphasis added). SeaWorld’s argument is not that close contact with a killer whale is 

not a hazard, but that the company’s safety training and its operant conditioning program materially reduce the hazard to 

which its trainers are exposed when working with the killer whales. This argument will be addressed under the section of 

this decision dealing with the element of feasible abatement.
19

all of the parks are intertwined. Management personnel at the parks are in constant communication 

with each other (Exh. C-6). SeaWorld Parks & Entertainment is the parent company of the three 

SeaWorld parks, and it was instrumental in helping Loro Parque establish its killer whale program. 

Charles Tompkins, the corporate curator for zoological operations for SeaWorld Parks & 

Entertainment, oversees all three SeaWorld parks. He testified, “Our goal is to be very consistent 

from park to park. So we don’t work individually. Kelly [Flaherty Clark] doesn’t make her own 

mandates and decisions without really discussing it with the corporate group and all of the parks” 

(Tr. 580). 

In this case, 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 (SeaWorld’s brief, p. 15). 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.

To establish a recognized hazard, the Secretary primarily relied on evidence in three areas: 

(1) the three previous human deaths involving killer whales, (2) SeaWorld’s written training manuals 

and safety lectures, and (3) SeaWorld’s incident reports (Exh. C-6).

(1) Previous Deaths Involving Killer Whales

February 1991: K. B.5

K. B. was a 20-year old part-time trainer at Sealand of the Pacific. Sealand was a marine 

park (since closed) in Victoria, British Columbia, Canada, that housed killer whales. They were kept 

in a sea pen, which was separated by a gate from the Pacific Ocean. In 1991, Dr. Duffus, the 

Secretary’s expert, served on the coroner’s jury in British Columbia investigating the death of K. B. 

In the report Dr. Duffus prepared for the Secretary in this case, he states:

 

5

To protect the personal and familial privacy interests of people killed or injured by killer whales, the court will 

use the initials of the deceased or injured people in this decision. The exception is Dawn Brancheau, whose death gave 

rise to this proceeding. Counsel represented her family at the hearing to ensure her family’s privacy interests were 

protected.
20

On February 20, 1991, after a midday feeding/show, a trainer slipped on the pool 

edge and fell into the pool. One or more of the whales pulled the trainer away from 

the pool edge, witnesses were unsure of which whale it was initially. Tilikum took 

control of the trainer, and for a period of time repeatedly submerged the person, 

holding her by the thigh. Attempts to control the whales using distraction and control 

cues failed, as did attempts to throw life rings, lines, and use boat hooks. And 

attending police officer testified that he thought of shooting the whale with his 

service revolver, but was talked out of that by the Sealand staff. Witnesses were 

unsure of how long she was conscious, it could have been between 10 minutes and an 

hour, her body was not recovered for 1.75 hours.

(Exh. C-12, p. 11).

K. B.’s death is the first recorded human death caused by a killer whale (Tr. 783). In 1992, 

SeaWorld bought Tilikum and transported him to its park in Orlando, Florida (Tr. 94).

July 1999: D. D.

On the morning of July 6, 1999, a SeaWorld employee discovered a dead man draped across 

Tilikum’s back when the employee reported to work. The man, later identified as D. D., had 

apparently hidden from security personnel when the park closed the day before. Sometime during 

the night, D. D. had entered Tilikum’s pool. D. D.’s cause of death was listed as hypothermia. It is 

undetermined why D. D. entered Tilikum’s pool and what role, if any, Tilikum played in his death 

(Tr. 122-123).

December 2009: A. M.

Loro Parque is a marine park in Tenerife, Spain, in the Canary Islands. SeaWorld Parks & 

Entertainment does not own or operate Loro Parque, but it does have a close relationship with the 

park. By December 2009, SeaWorld had leased five killer whales to Loro Parque. In addition, Sea 

World Parks & Entertainment sent several of its personnel, including SeaWorld of California’s 

supervisor of animal training, Brian Rokeach, to Loro Parque to demonstrate its use of operant 

conditioning and to help implement its training program.

On December 24, 2009, exactly two months before Tilikum killed Dawn Brancheau, Loro 

Parque trainer A. M. was working with Keto, a killer whale owned by SeaWorld Parks & 

Entertainment. During a training session, Keto pulled A. M. under water and then rammed him in 

his chest. A. M. died of massive internal bleeding (Tr. 408). A SeaWorld employee described the 
21

event in an incident report. After Keto failed to perform a number of behaviors correctly, A. M. and 

Keto were floating on the surface of the pool:

Keto came up with [A. M.] and appeared calm but did appear to position himself 

between [A. M.] and the stage. [A. M.] waited for calmness from Keto and asked for 

a stage call (underwater tone). Keto responded and was received at stage by Brian. . 

. . Brian instructed [A. M.] to swim out (toward the slideover). When [A. M.] 

commenced swimming (sculling) Keto began leaning toward him. Brian attempted 

another hand target but Keto left control and engaged [A. M.] by pushing him to the 

bottom with his rostrum. Brian observed the intensity of the situation and decided 

to initiate a hand slap. Keto did not respond. Brian tapped the bucket, then hand 

slapped again. It appeared Keto responded, came to the surface for a breath. The 

alarm was sounded. Keto immediately after taking a breath returned to [A. M.] and 

then resurfaced near stage with [A. M.] on his rostrum and with his mouth closed. 

(Exh. C-6, p. 2725). 

Keto released A. M., who sank to the bottom of the pool. Mr. Rokeach and the Loro Parque 

trainers were eventually able to get Keto to enter another pool, where Keto could be isolated while A. 

M.’s body was recovered. While the gate was closing Keto began to play with it, keeping it open. 

After trainers released a net into the pool, Keto allowed the gate to close. Mr. Rokeach entered the 

stage pool and retrieved A. M.’s body from the bottom. 

SeaWorld Parks & Entertainment temporarily suspended waterwork in all of its parks 

immediately following A.M.’s death, then resumed waterwork shortly afterwards. Loro Parque 

ceased (apparently permanently) all waterwork with killer whales (Tr. 563-564). 

(2) Training Manuals and the “Tili Talk”

Training Manuals

SeaWorld maintains several training manuals and requires each of its trainers to read and 

study them. SeaWorld requires the trainers to sign the signature pages of the manuals. These pages 

contain waiver-like language by which SeaWorld acknowledges the risks presented when working 

with killer whales.

One of its manuals provides standard operating procedures and is called the Animal Training 

SOP (Exh. C-1). The last page of the manual is a signature page. Above the signature line the 

document states in pertinent part:

I understand that it is my responsibility to begin and end all trainer/animal 
22

interactions in a safe manner. I realize there are inherent risks in performing my job 

description and I agree to communicate to my Supervisor if I become uncomfortable 

with or am unable to take the calculated risks. I understand that if the management of 

the Animal Training Department is not comfortable with my abilities to interact with 

these animals in a safe manner that I may be taken off interactions with some 

animals, or asked not to perform certain behaviors until I can demonstrate that I 

understand and apply safe behavior and techniques. 

(Exh. C-1. P. 150). 

SeaWorld also requires its trainers to read a document entitled, Shamu Stadium Area Manual 

(Exh. R-2.) Its introduction states:

Work required of crew members of the Animal Training team is potentially 

dangerous. The animals we interact with are not domesticated; most are large and 

powerful. While the potential for serious physical injuries exists, if trainers maintain 

top physical condition, and adhere to safety and departmental procedures, the 

potential for injury is dramatically reduced.

Tilikum Training

The first page of text of SeaWorld’s Animal Training SOP states: “Throughout this entire 

document, any mention of killer whales implies all whales except for Tilikum. Any regulations or 

protocols related to Tilikum are within Section XI” (Exh. C-1, p. 4). Section XI consists of nine 

pages of detailed procedures and restrictions that relate only to Tilikum. 

SeaWorld provides its employees with a document entitled Shamu Stadium Orientation 

Checklist (Exh. C-5). Under “Day One Information,” the document lists five different topics relating 

to emergency sirens, gate codes, wetsuits, etc. At the top of the list is “Discuss Tilikum Safety 

Protocol” (Exh. C-5, p.1). 

Lynne Schaber is a Senior Trainer 1 at SeaWorld, where she began working in 2002. Ms. 

Schaber testified that when SeaWorld employees start work at Shamu Stadium, they are given what 

is known as the “Tili Talk”: “A member of management would speak to you in regards to Tilikum, 

talking about his history of trainers working with him in the water, and you need to be aware of 

where he is in the Shamu Stadium area, which pool he’s in, you need to be safe and so forth” (Tr. 

261). 

Ms. Schaber stated employees are informed of the human deaths that involved Tilikum, and 
23

are told that “if you found yourself in the pool with Tilikum, you might not survive” (Tr. 262). The 

Tili Talk warns employees that Tilikum “displayed behavior which he did not return objects in the 

pool quickly” (Tr. 273). It was understood that this behavior included human beings (Tr. 274). 

Even before Ms. Brancheau’s death, SeaWorld’s trainers had never engaged in waterwork 

with Tilikum. Tilikum was not raised in captivity, as were most of SeaWorld’s killer whales, but 

had been captured in the wild and brought first to Sealand in Canada. Tilikum was approximately 

eleven years old when he arrived at SeaWorld and, as Ms. Flaherty Clark stated, “he had never had 

successful water interactions with human beings” (Tr. 59). She testified, “[W]ith Tilikum, there was 

no question due to his size and his history that we weren’t going to be doing waterwork with him” 

(Tr. 160). 

Jennifer Mairot stated Tilikum remained a drywork whale because “he didn’t know an 

appropriate response to trainers in the water” (Tr. 1390). Tilikum had a dedicated team of trainers 

and spotters who interacted with him. Only the most experienced trainers were allowed to work with 

Tilikum. 

(3) Incident Reports

SeaWorld acknowledges that when trainers at the original park in San Diego began working 

with killer whales in the 1960s, their training methods were not fully successful. In the early years, 

trainers sustained injuries with some frequency while working in close contact with killer whales. 

In 1987, an incident occurred during a performance in the San Diego park that caused all the 

SeaWorld parks to reconsider their training methods. Ms. Flaherty Clark described the incident: 

“[Trainer J. S.] was performing a behavior in a show. Another trainer sent—he was performing a 

behavior riding on a whale in a show. Another trainer sent another whale on an aerial behavior, and 

the whale jumped in the path of [J. S.], and so [he] had an injury as a result” (Tr. 1505). In fact, the 

second whale landed on the back of the whale on which J. S. was riding, crushing J. S. between the 

two whales. J. S. sustained serious injuries. All of the SeaWorld parks ceased waterwork with their 

killer whales for six months. The SeaWorld parks “took a step back” and reevaluated their training 

program (Tr. 1510). Eventually the SeaWorld parks instituted positive reinforcement operant 

conditioning as its training protocol. 

One tool SeaWorld implemented to improve its program is the documentation of incidents 
24

when a killer whale engages in an undesirable behavior. In 1988, as a result of the J. S. incident, the 

SeaWorld parks started issuing incident reports detailing the circumstances when a killer whale did 

not interact predictably with a trainer or trainers, or with other killer whales. The incident reports 

would then be circulated among the various parks, and management personnel and trainers would 

have the opportunity to comment on the incident. 

Ms. Flaherty Clark explained the use of incident reports:

An incident report is a document that very carefully outlines a sequence of 

events. We talk about all the behavior that led up to the event itself, we talk about 

the environment, we talk about the trainer’s history with that animal, we talk about 

the last interaction with the trainer, we talk about the incident itself.

We break it down into every single behavior around the incident. Was the 

response correct to the signal or incorrect? How did you reinforce? How did you not 

reinforce?

Then we do paragraph forms. This is what happened during the event. Then, 

there’s a review by the supervisor and the curator on premises at the park. Then, it is 

circulated to the other parks. Everybody gives their review.

(Tr. 184). 

Between 1988 and 2009, SeaWorld generated 100 incident reports, twelve of which 

documented injuries (or, in A. M.’s case, death) to trainers. Not every event of undesirable behavior 

by a killer whale resulted in an incident report. Chuck Tompkins is the corporate curator for 

zoological operations for SeaWorld Parks & Entertainment (Tr. 352). He acknowledged that 

SeaWorld failed to document several known events of undesirable behavior by killer whales when 

working with trainers: “[W]e missed a few” (Tr. 457). 

SeaWorld did not issue an incident report for the death of D. D., the man who stayed in the 

Orlando park after hours and was found dead in Tilikum’s pool. SeaWorld made this decision 

because no one witnessed his death. The details usually included in an incident report were 

unknown in the case of D. D. Although it did not issue an incident report for the death of D. D., 

SeaWorld ceased performing gastric intubations on Tilikum after D. D.’s death “as a precautionary 

measure” (Tr. 185). SeaWorld did not document Dawn Brancheau’s death with an incident report. 

The injuries to trainers documented in the incident reports include: R. S. (rammed in 
25

stomach by Orkid in 1998 at SeaWorld of California); T. T. (pulled into pool by Orkid in 2002 at 

SeaWorld of California); S. D. (struck in ribs and back by Taku in 2005 SeaWorld of Florida); B. R. 

(pulled underwater by Orkid in 2006 at SeaWorld of California); and K. P. (pulled underwater by 

Kasatka in 2006 at SeaWorld of California) (Exh. C-6).

The incident with K. P. and Kasatka on November 29, 2006, prompted a visit from CalOSHA. SeaWorld of California’s incident report states:

After a period of time at the surface, Kasatka took [K. P.] down to the bottom of the 

pool by his foot where she remained with him for just over 1 minute. Tucker and 

Matt continued to monitor Kasatka and [K. P.] from the stage. For the next 20-30 

seconds, there were intermittent hand slaps. After not surfacing for approximately 30 

seconds and not responding to any stage calls or emergency call backs, the decision 

was made to deploy the net from its slide-out location. . . . During this time, Kasatka 

had let go of [K. P.’s] foot for a brief period of time then repositioned herself under 

him in what looked to be an attempt to grab his foot again. After about 20 seconds, 

Kasatka successfully grabbed [K. P.’s] foot again, took him to the bottom of the pool, 

laid on him for a moment and continued to hold [K. P.] under water.

(Exh. C-6; p. 1374). 

Kasatka eventually let K. P. go. K. P. swam to the side of the pool and exited. SeaWorld of 

California suspended waterwork with Kasatka after this incident (Tr. 1042)

At the hearing the Secretary showed a video recording of the incident (Exh. C-9). The video 

is chilling. Approximately 8 minutes elapse from the time Kasatka grabs K. P.’s foot until she lets 

him go. A lot of that time is spent underwater. When Kasatka allows K. P. to surface, K. P. is 

noticeably shaken but he remains remarkably poised and free of panic. He calmly pats Kasatka as he 

gulps for air. Kasatka pulls him underwater several times, once taking him to the bottom of the pool, 

where they linger for a very long time. When Kasatka finally allows K. P. to go free, he swims 

rapidly to the side of the pool. As he does so, Kasatka turns and swims after him. Another trainer 

helps to pull K. P. away from the side of the pool and the advancing Kasatka. K. P. sustained 

puncture wounds to both feet and a broken metatarsal in his left foot (Exh. R-3). 

Instance (a): The Secretary Has Established a Recognized Hazard 

Exists to Trainers Working with Tilikum

The Secretary has established that SeaWorld recognized the hazard created when its trainers 

worked in close contact with Tilikum during drywork performances. Recognition of the hazard is 
26

shown by Tilikum’s history with K. B.6and the safety training SeaWorld has implemented that is 

specific to Tilikum. SeaWorld has restricted Tilikum to drywork since he arrived at its park. Even 

then only the most senior trainers were allowed to interact with him. The special treatment 

SeaWorld accords Tilikum demonstrates the company’s recognition that he is a dangerous animal 

who presents a hazard to trainers.

Evidence of this recognition is abundant in the record. The first day an associate trainer 

arrives at Shamu Stadium, he or she is greeted with the “Tili Talk.” Tilikum has an entire chapter 

dedicated to him in SeaWorld’s Animal Training SOP. Senior trainers who are permitted to work 

with the other killer whales are prohibited from working with Tilikum. When asked if she interacted 

differently with Tilikum than with the other killer whales, Ms. Schaber replied, “I had more of a 

heightened sense of awareness to be extra observant while I was working with him. . . I would have a 

very heightened sense of awareness while I worked with him just to be extra cautious” (Tr. 330-331).

Ms. Flaherty Clark acknowledged SeaWorld perceives Tilikum as a greater threat to trainers 

than the other killer whales. She testified:

Tilikum has always had his own set of protocols. Tilikum came to us from 

another facility. Basically, that facility reached out to us and said, “We think you are 

the right place to manage this killer whale.”

He came to us with a different behavioral history than any of our other 

whales, and from the moment he arrived at SeaWorld, only the most experienced 

trainers interacted with that whale, and he had his own set of protocols.

So, when you’re talking to me about a trainer who has just arrived at the 

stadium, I can tell you if I’m teaching that trainer, I would be sure to include that they 

are not to interact with Tilikum from anywhere unless they have a qualified person 

with them. And, when they would interact with Tilikum, it would be from what I 

would call a very safe distance. They would either be behind a six-foot panel of 

glass, or they would be five feet away from his pool at the time. That would be ten 

feet today.

 

6 The death of D. D. is not a factor in assessing Tilikum’s history. There were no witnesses to D. D.’s entry into 

the pool. D. D. may have entered the pool to emulate trainers he had observed during a Shamu Stadium performance, he 

may have been suicidal, or he may have had some other motive in entering the pool with Tilikum. There is not enough 

evidence to conclude from this event that Tilikum contributed to D. D.’s death. The court notes, however, that to date, 

killer whales have been implicated in four known human deaths worldwide. Tilikum was in the pool with the decedents 

for three of these deaths. 
27

(Tr. 92).

The Secretary has established that working in close contact with Tilikum during drywork 

performances created a recognized hazard for trainers.

Instance (b): The Secretary Has Established a Recognized Hazard 

Exists to Trainers Working with Other Killer Whales

SeaWorld contends that working in close contact with killer whales does not present a 

recognized hazard to its trainers. The company cites Megawest Financial Inc., 17 BNA OSHC 1337 

(No. 93-2879, 1995), in support of its position. Megawest is an unreviewed ALJ decision with no 

precedential value for the Commission. In that case, Judge Spies vacated a § 5(a)(1) citation where 

the alleged recognized hazard was workplace violence inflicted on apartment complex management 

personnel by tenants of the apartment complex. In vacating the citation, Judge Spies states:

In the past, employers have been required to reduce hazards they could anticipate and 

reduce or eliminate. The problem with predicting workplace violence is the 

unpredictability of human behavior. In this case, the Secretary is asking Megawest to 

predict the criminal behavior of non-employees. Additionally, the anger and 

frustration that drives a resident to become violent may be fueled by a variety of 

factors.

 

Id. at 1341. 

SeaWorld claims the actions of its killer whales are analogous to the criminal behavior of the 

non-employee tenants. The company argues animal behavior, like human behavior, cannot always 

be controlled, and contends the Secretary should be held to a higher standard of proof for a 

recognized hazard under these circumstances.

The court disagrees. Unlike the apartment tenants in Megawest, the killer whales are in the 

continual custody of the employer. By their nature as aquatic animals the killer whales are confined 

to the pools, an environment over which SeaWorld can control access. Unlike the employees in 

Megawest who were subject to irate tenants showing up unannounced and with undetermined 

intentions, SeaWorld knew in advance when its employees were scheduled to interact with the killer 

whales. The trainers always initiated contact with the killer whales, and could anticipate that each 

time there would be a risk of injury or death. 

SeaWorld’s analogy of the unpredictability of non-employee human behavior in Megawest to 

the unpredictability of the behavior of its killer whales is at odds with its own position touting 
28

operant conditioning. SeaWorld places absolute faith in its operant conditioning program. 

Management personnel are convinced that operant conditioning, correctly applied by its trainers, 

results in predictable, desirable behavior by the killer whales. Mr. Tompkins estimated that through 

its use of operant conditioning, SeaWorld can predict its killer whales’ behavior with more than 98 

percent accuracy, or, as Mr. Tompkins phrased it, “a tick away from being 100 percent” (Tr. 369-

370). This predictability, SeaWorld argues, virtually eliminates the risk of injury to its trainers 

working with killer whales during performances, so that there is no recognized hazard. 

SeaWorld’s estimate of 98 plus percent predictability is not based on rigorously evaluated 

scientific data. Mr. Tompkins arrived at this percentage by multiplying the average number of 

whales in all of the SeaWorld parks from 1998 to 2009 (20) times the estimated number of sessions 

per day (10) times 365 days times 22 years. Mr. Tompkins equated an interaction with a session, 

stating, “[A]ny time we step up and interact with a whale, that’s considered a session. If you step up 

and separate an animal to the back pool, that could be a session. If you step up and do a 20-minute 

show with an animal, that could be a session” (Tr. 626). The total number of killer whale 

interactions Mr. Tompkins arrived at by this calculation was 1.6 million. Based on the reported 

number of injuries (12)7during this same time period, Mr. Tompkins determined the predictability 

rate for its killer whales at upwards of 98 percent (Tr. 625-627).

The court finds SeaWorld’s metric of averaged daily killer whale interactions to be of 

dubious value. As noted previously, SeaWorld uses the acronym HELPRS to distinguish the six 

different activities in which the killer whales engage. Under Mr. Tomkins calculation, no distinction 

is made among the various activities. It is not clear what percentage of the interactions involves 

waterwork and what percentage involves drywork. Mr. Tompkins does not differentiate between a 

close interaction, which Ms. Flaherty Clark defines as within 5 feet, and a tactile interaction. The 

calculation counts all sessions equally despite the wide range in the duration of the sessions. This 

would affect the time during which trainers are exposed to the hazard. Mr. Tompkins’s averaging 

method is also suspect. Ms. Mairot testified the number of daily performances a killer whale 

 

7 Mr. Tompkins conceded that not all injuries that occurred during the stated time period were the subject of 

incident reports (Tr. 448, 451-457). Furthermore, the twelve injuries Mr. Tompkins chose to cite exclude, among other 

incidents, serious injuries sustained by another Loro Parque trainer in 2007, the death of A. M. in 2009, and the death of 

Ms. Brancheau in 2010 (Tr. 385-386, 515-516). 
29

performs can range from two to seven shows a day (Tr. 1433). Mr. Tompkins did not state how 

many average daily performances he included in his calculation.

Mr. Tompkins’s calculation also defines risk only in terms of serious injuries sustained. For 

many of the incident reports, the trainer involved did not actually sustain an injury, but was involved 

in a “close call.” In many of the incidents, the killer whale went off script and would not perform the 

conditioned behavior. As Ms. Flaherty Clark conceded, sometimes killer whales do what they want 

to do (Tr. 195). While SeaWorld’s employees at the hearing declined to label any of the killer 

whales’ undesirable behavior “aggressive,” the incident reports document behavior (such as 

exploratory “mouthing”) that could have resulted in injuries to the trainers.8

Mr. Tompkins’s calculation also fails to factor in the possibility of underreporting on the part 

of the trainers. Incidents are self-reported. SeaWorld’s training manuals do not provide a procedure 

for determining when to report an incident. Documentation is apparently left to the discretion of the 

trainer involved in the incident. 

Overall, Mr. Tompkins’s calculation of a 98 percent predictability rate is based on 

questionable data. His factors were arrived at through guesswork and averaging. No attempt was 

made to conduct an evaluative survey of daily interactions. The court finds this calculation to be 

unreliable and accords it no weight. 

SeaWorld’s contention that it was unaware working with killer whales presents a recognized 

hazard is difficult to reconcile with numerous comments made over the years by SeaWorld 

management personnel, including corporate curators of animal training Thad Lacinak and Mr. 

Tompkins. These comments were documented and circulated among all of the SeaWorld parks:

 “As our collection of male killer whales age, we have seen an onset of inconsistency that 

appears to increase as the whales approach adolescence. Is there a time where we start to 

 

8

SeaWorld’s employees went to great lengths at the hearing to avoid labeling any behavior by the killer whales 

as “aggressive.” Instead, they chose to say the killer whales were exploring, or curious, or frustrated when they engaged 

in undesirable behavior. This reluctance to label killer whales as aggressive extended to Tilikum’s killing of Ms. 

Brancheau. Ms. Flaherty Clark stated, “I would classify Tilikum’s behavior as undesirable on the 24th, the act of Dawn 

entering the water. I would not classify it as aggressive” (Tr. 168). Mr. Tompkins agreed: “I personally don’t believe 

that was an aggressive act” (Tr. 469).

If Tilikum’s killing of Dawn Brancheau was not an aggressive act, perhaps classification of the killer whale’s 

behavior is irrelevant. Whatever the motivation ascribed to a killer whale, any unpredictable behavior has the potential of 

causing death or serious injury to a trainer working in close contact with the whale.
30

limit killer whale waterwork with males of this age range so that we prevent the rehearsal of 

aggressive events?” (December 24, 2009).

 “I think there will be certain killer whales in our company that should be worked as 

protective contact animals during certain periods of their life. Obviously we have experience 

with Taima and Tilikum under this protective contact system and we now know if given 

enough time these whales can change their behavior and become less of a safety issue.” 

(April 10, 2007).

 [This comment was in response to an incident at SeaWorld of Texas where the killer whale 

Kyuquot injured trainer S. A. during a show performance.] “I don’t know if we need to add 

any more sounds or stimulus to the environment when we have an incorrect environment. 

This makes me nervous. . . Let’s face it, in these types of incidents, I don’t recall any whale 

responding to any hand slap, food bucket, or any other distraction we tried to implement.” 

(August 4, 2004).

 “Obviously the trainer broke one of the basic rules of the animal training department—

interaction with an animal without a spotter. This is a perfect example of how our animals 

can take advantage of any uncontrolled environment. . . . As evident by this episode, our 

whales should never be viewed as routine, nor predictable.” (August 2, 2002).

 “This incident [exhibiting aggressive behavior toward a trainer during a show performance] 

has been reviewed with all Shamu team members. To be honest, it’s great to be able to show 

people that our killer whales do have the potential of getting nasty. I think we opened some 

eyes and some minds to more proactive training and observation to prevent further 

aggression with Taima or any other killer whale. Fortunately, no one was hurt or even 

touched. This has been a great learning opportunity for our Shamu staff at [the trainer’s] 

expense” (July 1, 2002).

 “[T]aking control and pointing the whale away can sometimes cause more aggression. All 

the parks’ Shamu staffs should review this incident and discuss. New staff and trainers that 

have never experienced aggression can learn a lot from this incident. Never get too 

comfortable while working with killer whales.” (January 20, 1998).
31

 “I agree with the comments from the curators and the plan of action. As always, please share 

with all Shamu trainers. All of our people need to learn from this. Never take your eyes off 

your animal!” (December 10, 1997).

 “[W]e suggest an increase in the number of stage calls rehearsed during waterwork sessions, 

as this is the most important behavior for an animal to respond to in a waterwork situation. 

Unless an animal is consistent with stage calls in a variety of situations, we believe it is 

unsafe to perform waterwork with that animal.” (September 21, 1997).

 “Animals with aggressive tendencies should only be worked by experienced trainers. It 

doesn’t seem worth the risk to allow newer trainers to ‘work’ Kalina or allow Kalina to 

rehearse any more aggressive acts.” (June 4, 1996).

 “This incident is an example of how our trainers can get too comfortable working with 

certain whales.” (February 16, 1996).

 “Even though [the trainer] was successful in getting out of the water, I always question 

attempts to ’work’ an animal through a ‘bad attitude.’ I have seen successful attempts, but 

more often than not, these attempts fail. Why allow an animal more opportunities to rehearse 

aggression?” (February 5, 1996)

 “The largest trainer error in this incident was remaining in the water after the incident and 

attempting to continue waterwork. This could easily have resulted in additional and more 

intensive aggression.” (October 30, 1995).

 “The bottom line to this incident is that [the trainer] put himself in a very compromising 

situation by not terminating waterwork after being mouthed by Taima. I especially find it 

hard to understand his choice of behaviors after the callback tone (foot push). He is very 

lucky that further aggression was not exhibited by Taima. [The trainer] should have 

terminated the waterwork. Please make sure this is shared by killer whale staffs and 

emphasize to everyone that a more common sense approach should be taken in dealing with 

waterwork and killer whales.” (October 19, 1995).

 “I am still very confused that mistakes like this can be made by our senior trainers. We are 

very lucky that it happened with this whale, another may not have been so forgiving. 

WHENEVER THERE IS ANY CONFUSION OR PROBLEM YOU DO NOT ENTER THE 
32

WATER. This is a good example of the trainers being too comfortable with their whales and 

their environment.” (February 10, 1995, emphasis in original).

(Exh. C-6).

This is just a sampling of the written comments circulated among the SeaWorld parks in the 

fifteen years prior to Ms. Brancheau’s death. These comments were made by management personnel 

who instituted corporate-wide protocols and safety procedures. Despite these comments, SeaWorld 

insists it did not recognize the hazard posed by working in close contact with killer whales. The 

court finds this implausible. No reasonable person reading these comments would conclude that 

SeaWorld was unaware that working in close contact with killer whales during performances creates 

a hazard for its trainers. 

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.

Feasible Abatement

“The Secretary has the burden of proving all elements of a 5(a)(1) violation including the 

existence of a feasible means of materially reducing or eliminating the likelihood of death or serious 

physical harm to employees.” Cerro Metal Products Division, Marmon Group, Inc., 12 BNA OSHC 

1821, 1822 (No. 78-5159, 1986).

Instance (a): The Secretary Has Established Feasible

Abatement for Trainers Working with Tilikum

For Instance (a) of Item 1 of Citation No. 2, the Secretary states, “[O]ne 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.” 

Leslie Grove is the area director for OSHA’s Tampa area office (Tr. 917). The citations in 

this case were issued under his signature. Mr. Grove testified SeaWorld could protect its trainers 

during drywork with Tilikum by installing “[s]ome type of physical barrier, a wall, a guardrail or 
33

something that prevents the contact between them and Tilikum” (Tr. 931). Mr. Grove considers 

maintaining a minimum distance between the killer whales and the trainers the equivalent of a 

physical barrier (Tr. 935).

Dr. Duffus agreed that maintaining a minimum distance from Tilikum eliminates the hazard. 

He testified, “[I]f you put yourself in close enough proximity to Tilikum . . . he could pull you into 

the water. . . .Under normal conditions, a killer whale can rise out of the water and seize prey or any 

item off the side to a certain extent. . . . [I]f you were perhaps 5 to 8 feet away, there would be 

absolutely no opportunity with that intervening space of dry land” (Tr. 905). 

At the time of the hearing, SeaWorld had implemented both physical and distance barriers 

between Tilikum and its trainers. Tilikum had returned to performing in shows. During his 

performances in the A pool, trainers are not permitted on the Believe stage. The trainers are 

“actually down below behind the Plexiglas barrier. So, they’re not in an area where they could be 

contacted by Tilikum” (Tr. 931). Ms. Flaherty Clark testified trainers now maintain a 10-foot 

distance from Tilikum (Tr. 92).

The Secretary has established a feasible means of abatement exists to eliminate the 

recognized hazard to trainers while engaging in drywork with Tilikum during performances. At the 

time of the hearing, SeaWorld had implemented the means of abatement recommended by the 

Secretary. The Secretary has established that SeaWorld committed a violation of § 5(a)(1) with 

regard to Instance (a). 

Instance (b): The Secretary Has Established Feasible 

Abatement for Trainers working with Other Killer Whales

Under Instance (b) of Item 1 of Citation No. 2, the Secretary states, “[F]easible and 

acceptable means of abatement would prohibit animal trainers from working with killer whales, 

including ‘waterwork’ and ‘drywork,’ unless the trainers are protected through the use of physical 

barriers or through the use of decking systems, oxygen supply systems or other engineering or 

administrative controls that provide the same or a greater level of protection for the trainers.” Mr. 

Grove testified that “decking systems” refers to the floor raising mechanism SeaWorld has in some 

pools. As Ms. Flaherty Clark explained, the killer whales cannot swim when the pool floor is raised 

to a certain height. Raising the floor would immobilize the killer whale, allowing emergency
34

response personnel to retrieve the injured trainer more quickly. The reference to oxygen supply 

systems is based on a discussion the compliance officer had with SeaWorld personnel, who stated 

the company was working on such systems (Tr. 962).

SeaWorld rejects the Secretary’s recommendation for installing physical barriers or requiring 

a minimum distance between its trainers and its killer whales for waterwork and drywork 

performances. SeaWorld does not argue that it is not feasible to install barriers or implement a 

minimum distance. Rather, SeaWorld 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. Operant conditioning materially reduces 

the hazard, SeaWorld contends, by training the killer whales to act predictably during interactions 

with its trainers. In a case such as this, where the employer claims its safety program materially 

reduces the recognized hazard, it is the Secretary’s burden to show the safety program is inadequate. 

Cerro Metal, Id. at 1823. 

Adequacy of SeaWorld’s Operant Conditioning Program

It is an article of faith for SeaWorld that operant conditioning eliminates the possibility of 

unpredictable behavior on the part of its killer whales. Mr. Tompkins stated that “999.999 percent of 

the time, we know what happened [to cause an incident], and we’re able to prevent it from occurring 

again” (Tr. 515). 

The standard form for the company’s incident report includes the following question, for 

which the reporting curator is supposed to circle “yes” or “no”:

ORIGINATING PARK CURATOR COMMENTS

Did the Act(s) of the employee contribute to this accident? YES NO

(Exh. C-6).

On an incident report from 1998, SeaWorld supervisors Jeff Andrews, Curtis Lehman and 

Mike Scarpuzzi signed off on comments issued by Sea World of California. One of the California 

commenters complains about the continued use of the question: “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 
35

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” (Exh. C-6, p. 637). 

It is a telling remark. SeaWorld believes it “condition[s] all aspects of behavior.” All 

behavior is thus predictable. If an undesirable behavior occurs, it is because the trainer missed a 

known precursor. Ergo, the trainer is always at fault for the killer whale’s undesirable behavior. In 

this closed system, any injuries sustained by a trainer will always be traceable to human error. It is 

not the operant conditioning program that is inadequate; it is the performance of the trainer that is 

flawed.

An example of this mindset is seen in SeaWorld’s continued reliance on recall signals meant 

to distract the killer whales from undesirable behavior. Ms. Flaherty Clark explained this technique 

for protecting its trainers:

We have a signal that means “come to me.” It’s either a slap on the surface of 

the water, and we rehearse that constantly with the whales. It’s probably the most 

highly reinforced behavior that we have.

The shows are an opportunity for us to rehearse that behavior. If an animal 

trainer finds himself in a situation that is not going so well, there’s a lot of 

communication between the animal trainer and the spotter trainer. They might ask 

the spotter trainer for a call back slap on the surface of the water. The fact that the

animal had been conditioned and there’s such a lengthy reinforcement history with 

that slap on the water, meaning “come here,” it’s rehearsed and rehearsed and 

rehearsed in situations that are not tenuous at all to situations that we plan for more 

things going on in the environment as well as situations that we’re talking about the 

animal trainer might find themselves in.

So, the constant rehearsal of this behavior, “come away from the trainer and 

come to me,” contributes to a positive outcome.

(Tr. 119-120). 

Trainers used recall slaps and recall tones during the incidents involving the deaths of Dawn 

Brancheau and A. M., and the aggressive interactions between killer whales and K. P. and S. A. In 

none of those incidents did the killer whales respond to the recall signals with the desired behavior of 

swimming toward the spotter (Tr. 191-192). Following Kyuquot’s aggressive interaction with S. A., 

a SeaWorld manager wrote, “Let’s face it, in these types of incidents, I don’t recall any whale 

responding to any hand slap, food bucket, or any other distraction we tried to implement” (Exh. C-6).
36

Dr. Duffus, writing about Ms. Brancheau’s death, stated, “[T]he spotter watched the whale seize Ms. 

Brancheau and proceeded, as per procedure, to hit an alarm and try to distract the whale, all of which 

was to no avail (Exh. C-12, p.12). When asked about the efficacy of using recall signals to refocus 

the killer whales, Mr. Rokeach responded, “I’m sorry, there hasn’t been a lot of success in that 

specific scenario” (Tr. 1221). 

Despite the repeated failures of the recall signals, SeaWorld continued to rely on them to 

protect its employees. Ms. Flaherty Clark blames the lack of success for recall signals on the 

trainers: “Human nature has put some trainers in situations where they slapped the water 

inappropriately” (Tr. 192). This is a typical response of SeaWorld to incidents where the killer 

whales fail to act in a predictable manner. Because it is not part of SeaWorld’s corporate culture to 

acknowledge unpredictable behavior by its killer whales, it must necessarily find that its trainers are 

implementing the program incorrectly.

The incident reports provide an insight into SeaWorld’s approach. Upper management 

dissects each incident second by second, and then critiques the choices made by the trainers as the 

incident unfolded. Trainers are expected to decipher precursors and then choose the appropriate 

response with split-second timing, keeping in mind that they are performing in front of an audience. 

If the animal engages in undesirable behavior, it will be attributed to mistakes the trainer made. 

SeaWorld’s witnesses blamed A. M. for Keto’s unpredictable behavior that led to A. M.’s death in 

Loro Parque (Tr. 413, 1348-1349). 

SeaWorld’s reliance on its trainers to recognize precursors and prevent unpredictable 

behavior by the killer whales runs counter to the requirements of the Act. “The duty to comply with 

section 5(a)(1), however, rests with the employer. An employer cannot shift this responsibility to its 

employees by relying on them to, in effect, determine whether the conditions under which they are 

working are unsafe.” Armstrong Cork Company, 8 BNA OSHC 1070, 1074 (No. 76-2777, 1980).

The pressure on the trainers is increased by the expectation that they will continue with the 

show performance regardless of the precursors demonstrated by the killer whales. Although 

SeaWorld’s official stance is that trainers have the option to end a show if they feel uncomfortable 

with the situation, the reality is SeaWorld discourages such action. 

On June 12, 1999, K. P. and another trainer ended a show early due to Kasatka’s undesirable 
37

behavior. K. P. was engaged in waterwork with Kasatka during a show performance. Kasatka 

ignored K. P.’s signals and began swimming rapidly around the perimeter of the pool. She surfaced 

between K. P. and the stage, then looped under him and attempted to grab his feet and hands, then 

looped under him again. K.P reported:

As she came up at me I put my hands on her rostrum and lower jaw to keep 

my body out of her mouth. Kasatka lifted me approximately two feet up and out of 

the water toward the stage. I reached out with my right hand to feel where the stage 

was so that I would not hit it. I felt the stage and placed my right arm on it. She tried 

one more time with her mouth to grab my left hand and as she started to swim away 

from me I used my feet to push off of the side of her body. Simultaneously, Robbin 

reached for my arm and pulled me onto the stage.

Robbin then asked me if I was OK. I said that I was. Robbin then addressed 

the audience and explained what had happened and decided to end the show at that 

time. Kasatka continued to swim around the pool.

(Exh. C-6, p. 684).

Michael Scarpuzzi, vice-president of animal training for SeaWorld of California, wrote a 

strongly worded two page critique of the trainers’ actions. Among other criticisms, Scarpuzzi writes:

Thirdly, the show did not need to be cut short. This brought unnecessary attention to 

the incorrect behavior and placed the control of the show to the whale. We have 

reiterated our existing policy to utilize any and all resources before canceling a 

show.

(Exh. C-6, p. 686; emphasis in original). Kasatka is the same whale that almost drowned K. P. in the 

2006 incident, under similar circumstances.

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” (Exh. C-6). 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. 

Mr. Andrews, SeaWorld’s expert, followed the corporate line even in evaluating Tilikum’s 

actions that led to Ms. Brancheau’s death. Despite SeaWorld’s repeated assertions that Ms. 

Brancheau followed all protocols correctly and did not miss any precursors, Mr. Andrews ultimately 
38

placed responsibility for her own death on Ms. Brancheau. In the report Mr. Andrews prepared for 

this proceeding, he writes:

In my professional opinion, two circumstances led to Ms. Brancheau’s death. First, 

her hair was long, loose, and flowing out on the surface of the water and drifted into 

contact with Tilikum’s rostrum and mouth. The sensation of the floating hair was 

something with which he was not familiar and, not having hands, he grasped the hair 

with his mouth in what was likely a curious manner. Second, his curiosity with the 

hair led him to pull the hair out away from the pool ledge and Ms. Brancheau’s body 

was pulled out along with her hair. Once she was in the water, Tilikum had a new 

object with which to play. From the moment he pulled her into the water until she 

drowned, Tilikum was never aggressive towards her. . . . 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 in his curiosity.

(Exh. C-15, p.6).

Mr. Andrews testified he made the assumption that Tilikum grabbed Ms. Brancheau by the 

hair based on comments made to him by Mr. Tompkins, who did not witness the event. Mr. 

Andrews did not speak with eyewitnesses, he did not review the investigation file of the Sheriff’s 

Department, and he did not read the autopsy report (Tr. 1674, 1886-1887). He accepted without 

question that Tilikum grabbed Ms. Brancheau by the hair (and not by the arm, as eyewitness Fredy 

Herrara testified). 

This scenario fits within SeaWorld’s narrative that its killer whales are always predictable 

and all of their behaviors have identifiable precursors. Mr. Andrews followed the philosophy of 

SeaWorld that its trainers’ deaths and injuries are due to mistakes made by the trainers. 

Mr. Andrews, based on no factual information, theorizes Tilikum grew curious at the 

unfamiliar sensation of Ms. Brancheau’s hair, and grasped it with his mouth. Under crossexamination, Mr. Andrews admitted he did not, in fact, know whether or not Tilikum was familiar 

with floating hair (Tr. 1890). Ms. Flaherty Clark’s testimony directly contradicted Mr. Andrews’s 

opinion. She testified that Tilikum had been exposed to long hair ever since his arrival at SeaWorld 

in 1992:

Q. And, the way you desensitized Tilikum as to ponytails was for trainers to 

interact with Tilikum while the trainer had her ponytail loose, right?

Ms. Flaherty Clark: Tilikum has interacted with trainers with ponytails loose 
39

since his arrival at SeaWorld. So, for 19 years, he’s had daily exposure to varying 

lengths of hair very close to him.

Q. So, by desensitization, the process is just going on and interacting next to 

him with your hair not secured, right?

Ms. Flaherty Clark: You’re absolutely correct. Desensitization, you have just 

defined it. Exposure to and the desensitization—exposure to a stimulus and a 

desensitization thereof.

Q. So, it’s not like, for example, SeaWorld would dangle a wig or hair near 

Tilikum and desensitize him that way to not grab hair or a wig, right? That’s not 

what desensitization is?

Ms. Flaherty Clark: For 19 years, Tilikum was exposed to ponytails dangling 

near him, ponytails of varying length, ponytails of varying color, wet ponytails, dry 

ponytails, thick ponytails, thin ponytails, he was desensitized to ponytails. . . . 

Tilikum had been desensitized to ponytails. He never responded, he never reached 

toward a ponytail, he never backed his head away from a ponytail, he never noticed a 

ponytail, the ponytail never interrupted his course of behavior.

(Tr. 1554-1557). 

The court credits Ms. Flaherty Clark’s testimony that Tilikum was desensitized to ponytails. 

She is SeaWorld’s curator of animal training. She has worked with Tilikum and is familiar with his 

training and history. The court determines Mr. Andrews’s opinion that Tilikum grabbed Ms. 

Brancheau by the hair out of curiosity because he was unfamiliar with it is speculative and has no 

basis in fact. The court accords it no weight.

Mr. Andrews concludes his report by stating, “My expert opinion is that SeaWorld can safely 

allow trainers to closely interact with killer whales, including waterwork, with the administrative and 

engineering controls that existed prior to February 24, 2010” (Exh. C-15, p. 10). As noted in the 

section addressing the recognized hazard, SeaWorld’s own incident reports demonstrate that its 

safety program, either due to misplaced faith in operant conditioning or due to human error in 

implementing operant conditioning, exposes its trainers to the risks of death or serious physical 

injury. 

Dr. Duffus, the Secretary’s expert, has no experience with training killer whales. Unlike 

SeaWorld personnel, however, he has spent his professional life observing killer whales in their 
40

natural habitat. In his report, Dr. Duffus writes that the behaviors of the killer whales described in 

the incident reports were familiar to him:

Tilikum actively killed the trainer [K. B.] in a manner not dissimilar to the way they 

kill seals in local waters. . . . Tilikum’s aggression is consistent with predatory 

behavior, seizing prey from shore, holding prey underwater, shaking prey items are 

all commonly encountered in wild whales. The description of the Brancheau death 

exemplifies the same behavior I have seen in probably 100 foraging encounters in the 

wild with killer whales. It is also consistent with Tilikum’s behavior in the drowning 

death of [K. B.]. . . . The death of [A. M.] in Loro Parque was also a training 

situation where a killer whale from SeaWorld’s complement of animals killed a 

trainer. And, see for example the report of the case of [S. A.] and the whale Kyuquot 

of July 23, 2004, that made spectacular news footage. The whale refused to 

undertake show behaviors, instead jumping on top of their target. Here again the 

whale refused control by audible signal and hand slaps.

(Exh. C-12, pp. 6, 14).

Dr. Duffus testified that he considered these behaviors to be aggressive. “[A]ggression is a 

natural component of predatory behavior. . . Aggression is the fast movement, the seizing of prey or 

other items, I guess” (Tr. 852). “Killer whales have thrived on their predatory behavior for 

thousands of years. It is only since the mid-1960s that humans have attempted to domesticate them”

(Exh. C-12, p. 15). 

Dr. Duffus stated, “[T]he training program that SeaWorld uses is influential. It does work. 

My point is that it does not work all the time” (Tr. 911). The court agrees with Dr. Duffus. 

SeaWorld’s training program is highly detailed, well-communicated, and intensive. Yet it cannot 

remove the element of unpredictability inherent in working with killer whales. SeaWorld’s safety 

program must not just reduce, but materially reduce, the recognized hazard. “Materially” means “To 

a significant extent or degree; importantly.” Two killer whales trained under SeaWorld’s operant 

conditioning program killed two trainers two months apart. Under these circumstances it cannot be 

said that SeaWorld’s training program has reduced the recognized hazard to a significant degree. It 

clearly did not eliminate the recognized hazard. The Secretary has established SeaWorld’s safety 

training program, both for killer whales and for its trainers, is inadequate as a means of feasible 

abatement.
41

Feasibility of the Secretary’s Proposed Abatement

As with Tilikum, the Secretary proposes that for performances, SeaWorld either install 

physical barriers between its trainers and killer whales, or require its trainers to maintain a minimum 

distance from the killer whales. This proposed abatement is technologically feasible; SeaWorld has 

been using it since February 24, 2010. SeaWorld has banned waterwork with its killer whales during 

performances, and trainers perform drywork from behind barriers.

The proposed abatement is also economically feasible. SeaWorld did not argue that 

performing drywork from behind barriers or banning trainers from waterwork during performances 

affected it economically. SeaWorld’s killer whales, including Tilikum, have continued to perform in 

shows at Shamu Stadium without the presence of trainers in the water with them. Trainers perform 

drywork from behind barriers or at a minimum distance. There was no evidence adduced that the 

elimination of waterwork or the implementation of barriers for drywork has had a negative impact on 

SeaWorld’s profits.

It is clear from this proceeding and from the testimony of SeaWorld’s employees that 

SeaWorld would prefer to have its trainers engage in waterwork again during killer whale 

performances. The trainers each came across as intelligent, caring people, devoted to a calling of 

working with killer whales. The court asked Ms. Flaherty Clark why SeaWorld placed so much 

value on performing waterwork with killer whales. She testified that trainers see themselves as both 

caretakers of the animals and as entertainers, but that entertaining is a secondary role. She explained 

that people who attend the Shamu Stadium shows are deeply affected by the spectacle of humans 

interacting with killer whales:

[People] see killer whales interacting with human beings in a watery 

environment and they are affected. I believe—and this is my opinion—that they are 

affected to the point that that changes them. It’s my opinion, and I have volumes of 

letters and cards. And, as much media attention that this event has promoted, I’ve 

gotten a lot of letters and cards by people who were affected by what we do. They’re 

affected and I’m equating that with being educated. Now, I’m not saying you’re 

changed as a person.

So, you’re inspired, perhaps you’re going to learn more, perhaps you’re going 

to have other experiences in the park that you’re going to look at a little differently.

(Tr. 1581-1582).
42

Ms. Flaherty Clark was a credible, sincere witness. She believes passionately in SeaWorld’s 

mission to educate and inspire people about marine animals. Her justification for continuing 

waterwork, however, must be measured against the risk incurred by allowing trainers to interact 

closely with killer whales. Are the emotions inspired by the grandeur of humans interacting with 

killer whales worth the dangers created by the interactions?

Prohibiting waterwork and using physical barriers and minimum distances eliminate the 

trainers’ exposure to the recognized hazard of working with killer whales. Proximity to the killer 

whales is the factor that determines the risk to the trainers. Dr. Duffus stated, “The fundamental fact 

with captivity is the proximity. . . . The fact of the matter is simple proximity. . . If you’re close to a 

killer whale, they can potentially inflict harm” (Tr. 851). 

Killer whales are not known to attack humans in the wild. There are no known cases of killer 

whales killing humans in the wild. The four known human deaths caused by killer whales occurred 

when humans entered pools occupied by captive whales. As far as the court can tell, all known 

injuries to humans have occurred from interactions with killer whales in pools. Once a trainer is in 

the water with a killer whale that chooses to engage in undesirable behavior, the trainer is at the 

whale’s mercy. All of the emergency procedures, nets, underwater signals, and hand slaps are 

useless if the whale chooses to ignore them, as happened in the deaths of A. M. and Dawn 

Brancheau. 

In his report, Dr. Duffus considers the consequences of being in the water with a killer whale 

that chooses to ignore its operant conditioning. Dr. Duffus sat on the coroner’s jury that investigated 

K. B.’s death, and he reviewed the medical examiner’s report in Ms. Brancheau’s death. He writes, 

“It is not simply death and injury. In the two cases where Tilikum has killed trainers, their deaths 

were not instant. To be repeatedly held underwater, grasped in the mouth of a rapidly swimming 

killer whale and to be pursued under and at the surface of the water, all at the time knowing your 

death is the likely outcome is an unimaginable event. It is not whales playing, or an accident, it is a 

large carnivorous predator undertaking what thousands of generations of natural selection prepared it 

for” (Exh. C-12, p. 15).

The court finds the Secretary established a feasible means to eliminate the recognized hazard 

with regard to Instance (b). The Secretary has proven SeaWorld violated § 5(a)(1). Item 1 of 
43

Citation No. 2 is affirmed.

Fair Notice

SeaWorld contends it lacked fair notice of what the Act required it to do in order to abate the 

recognized hazard to its trainers. SeaWorld cites Miami Industries, Inc., 15 BNA OSHC 1258 (No. 

88-671, 1991), aff’d in part 15 BNA at 2025 (6th Cir. 1992). In that case, the Secretary cited the 

employer for a machine guarding violation. The employer argued that it had relied on the 

representation of an OSHA compliance officer who, ten years prior to the instant citation, 

specifically approved the guards the employer was using on the machine. The Review Commission 

vacated the citation item, finding the compliance officer misled the employer into believing the 

Secretary considered its guarding device to be sufficient. 

SeaWorld argues that it similarly lacked fair notice in the instant case. It bases this argument 

on the investigation conducted by Cal OSHA in response to the 2006 incident in which Kasatka 

grabbed K. P. by his foot and held him underwater. Because Cal OSHA ultimately did not cite 

SeaWorld of California for this incident, SeaWorld contends it lacked fair notice it was required to 

prevent close contact between its trainers and its killer whales during performances.

In the “Information Memorandum” issued by Cal OSHA, the agency notes that SeaWorld of 

California relied on training to prevent aggression by killer whales towards its trainers. It states the 

training was “not entirely effective at stopping the unwanted behaviors of the killer whale during this 

attack.” The “Information Memorandum” concludes, “Short of eliminating all of the water 

interactions with the killer whales, there is no guarantee that the employees can be kept safe from an 

attack by a killer whale once they get in the water with the animal” (Exh. R-3). 

Cal OSHA issued a “Notice of No Accident-Related Violation After Investigation,” in which 

it states, “It has been determined that no standard, rule, order or regulation set forth in Title 8, 

California Code of Regulations, and Division 5 of the California Labor Code, has been violated in 

connection with the above described industrial accident and /or occupational illness” (Exh. R-3). 

SeaWorld contends it relied on Cal OSHA’s decision not to cite it for the K. P. incident when 

deciding to continue waterwork with its killer whales.

SeaWorld’s fair notice argument is rejected. California is a state-plan state; SeaWorld of 

Florida is under the jurisdiction of Federal OSHA. SeaWorld of Florida cannot rely on the exercise 
44

of prosecutorial discretion by a California agency regulating a California corporation when 

evaluating its own safety program. Cal OSHA found a hazard in the San Diego case, but determined 

no California standard or regulation applied. In the present case, the Secretary cited SeaWorld under 

its general duty clause.

Furthermore, SeaWorld had acquired additional information regarding the hazards of 

working with killer whales by February 24, 2010. At that point SeaWorld had thoroughly 

investigated and reviewed both the K. P. incident that was the subject of Cal OSHA’s investigation, 

and A. M.’s death in Loro Parque two months earlier. The SeaWorld parks had circulated the 

incident reports and commented on them. These additional incidents put SeaWorld on notice that its 

operant conditioning program was not working sufficiently to protect its trainers during waterwork 

with the killer whales.

Willful Classification

The Secretary classifies the violation of Item 1 of Citation No. 2 as willful.

A willful violation is one “committed with intentional, knowing or voluntary 

disregard for the requirements of the Act, or with plain indifference to employee 

safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA 

¶30,059, p. 41, 330 (No. 89-2883, 1993) (consolidated); A.P. O’Horo Co., 14 BNA 

OSHC 2004, 2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A 

showing of evil or malicious intent is not necessary to establish willfulness. 

Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97 

C.H. OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), aff’d 131 F.3d 1254 (8th 

Cir. 1997). A willful violation is differentiated from a nonwillful violation by an 

employer’s heightened awareness of the illegality of the conduct or conditions and by 

a state of mind, i.e., conscious disregard or plain indifference for the safety and health 

of employees. General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 

2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated). 

A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & 91-0638, 2000).

Intentional, Knowing, or Voluntary 

Disregard for the Requirements of the Act

The Secretary failed to establish SeaWorld disregarded the requirements of the Act. OSHA 

has no specific standard that regulates employees working in close contact with killer whales. The 

original SeaWorld in San Diego predates the Act. No evidence was adduced that shows SeaWorld 

had a heightened awareness of the illegality of its conduct. 
45

Plain Indifference to Employee Safety

The Secretary has also failed to establish SeaWorld manifested plain indifference to 

employee safety. On the contrary, the record demonstrates SeaWorld constantly emphasized safety 

training and was continuously refining its safety program. SeaWorld requires its trainers to 

participate in an intensive, multi-year program under close supervision before they are allowed close 

contact with the killer whales. SeaWorld requires its trainers to maintain peak physical condition. It 

administers physical fitness tests four times a year (Tr. 646-647). SeaWorld installed underwater 

video cameras in every back area to monitor the killer whales’ activity (Tr. 642). The company has 

implemented emergency response protocols (ERPs) (Exh. C-1; Tr. 120). SeaWorld’s trainers 

practice the ERPs during monthly drills (Tr. 120, 609). SeaWorld’s safety training is highly detailed 

and thorough. It is a safety-conscious employer.

The court determines the Secretary’s classification of willfulness is not appropriate for 

SeaWorld’s violation of § 5(a)(1). The court reclassifies the violation as serious. 

Ruling Limited to Show Performances

The court’s order affirming Item 1 of Citation No. 2 for a violation of § 5(a)(1) is limited to 

close contact between trainers and killer whales during performances only. Other activities during 

which trainers are in close contact with killer whales are not affected by this ruling. 

Dr. Christopher Dold is SeaWorld Parks & Entertainment’s vice-president of veterinarian 

services (Tr. 1708). He testified regarding SeaWorld’s extensive health program for its killer 

whales. SeaWorld performs a comprehensive health assessment every month on each killer whale. 

It also performs daily procedures, such as tooth flushing. Trainers assist the veterinarians during 

each interaction. Standard procedures include taking specimens of blood, urine, feces, and sperm; 

performing dental exams; performing blow hole cultures; performing gastric intubations; and 

preparing female killer whales for artificial insemination (Tr. 1717-1736).

As the custodian of its killer whales, SeaWorld has an ethical duty to provide health and 

medical care to them. Unlike show performances, which can successfully continue without close 

contact between the killer whales and the trainers, SeaWorld’s husbandry activities require a certain 

amount of contact between the trainers and the killer whales. 
46

Penalty Determination

The Commission is the final arbiter of penalties in all contested cases. “In assessing 

penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give due 

consideration to the gravity of the violation and the employer’s size, history of violation, and good 

faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a 

principal factor in a penalty determination and is based on the number of employees exposed, 

duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy 

and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).

At the time of the OSHA inspection, SeaWorld employed approximately 2,000 employees 

(Tr. 925-926). OSHA had not previously inspected SeaWorld at its Orlando park. SeaWorld 

demonstrated good faith throughout this proceeding.

Item 1 of Citation No., § 1910.23(d)(1)(iii): The gravity of the violation is high. Employees 

were required to go up and down the stairways on a regular basis while carrying up to 60 pounds of 

fish. If an employee slipped or stumbled, the employee did not have a stair railing to prevent a fall 

over the edge of the stairway. If the employee avoided landing in the water, he or she was at risk for 

serious injuries, including broken bones. Landing in the water could potentially expose the 

employee to a greater risk. In 1991 at Sealand of the Pacific, trainer K. B. slipped and fell into a sea 

pen in which three killer whales, including Tilikum, were kept. The killer whales prevented her from 

exiting the pool, resulting in her eventual death (Tr. 596). 

The court determines the Secretary’s proposed penalty of $ 5,000.00 is appropriate.

Item 1 of Citation No. 2, § 5(a)(1): The gravity of this violation is very high. Trainers were 

required to work in close contact with killer whales during performances. The killer whales 

sometimes engage in unpredictable behavior, including seizing trainers with their mouths, holding 

the trainers under water, and ramming the trainers while in the water. SeaWorld’s operant 

conditioning program places an unrealistic burden on trainers to recognize precursors and react 

appropriately to forestall undesirable behavior. 

The hazard to which the trainers are exposed when working with killer whales is exacerbated 

by the environment. If people trained in emergency rescue are present when a person is seriously 

injured by a land animal, they likely will be able to quickly isolate the injured person from the animal 
47

and provide emergency medical care. Such is not the case with killer whales. In the reported cases 

where killer whales seized trainers during waterwork or pulled trainers into the water during 

drywork, the injured or deceased trainer was not recovered until the killer whale decided to release 

the trainer. Even if the injuries inflicted by the killer whale are not fatal, the trainer may drown 

before the whale chooses to release him or her. As Dr. Duffus writes, “[T]he aquatic environment 

that the whales inhabit adds to the risk for humans as any short delay in reaching the water’s surface 

can be fatal” (Exh. C-12, p. 16).

The court determines a penalty of $ 7,000.00 is appropriate. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance 

with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1 of Citation No. 1, alleging a serious violation of 29 C. F. R. § 

1910.23(d)(1)(iii), is affirmed, and a penalty of $ 5,000.00 is assessed;

2. Item 1 of Citation No. 2, alleging a willful violation of § 5(a)(1) of the Act, is 

affirmed as serious, and a penalty of $ 7,000.00 is assessed; and 

3. Item 1 of Citation No. 3, alleging an other than serious violation of 29 C. F. R. § 

1910.305(j)(2)(v), was withdrawn by the Secretary. Item 1 is vacated and no penalty 

is assessed.

 /s/ Ken S. Welsch 

KEN S. WELSCH

Administrative Law Judge 

Date: June 11, 2012