SeaWorld a marine park in British Columbia. The hazard

SeaWorld of Florida V. Perez Case

 This was a case appealed to challenge a
general duty clause violation that followed the death of a killer whale trainer
called Dawn Brancheau during a show. The legal issues enforced by the
occupational Safety and Health Administration (OSHA) and presented in this case
is that Sea World violated the General Duty Clause of the Occupational Health
and Safety Act by exposing its trainers who worked with killer whales to
recognized hazards. Another issue is that procedures to abate those hazards
were feasible. The plaintiff was able to establish a valid violation under the
general Duty Clause of the OSHA Act in a number of ways. The general duty
clause of the occupational Safety and Health Act provide “Each employer shall
furnish to each of his employee’s 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.” (Kim, P. T., Crain, M. G., &
Selmi, M. L. 2015).   In establishing a violation of the general
Duty clause, it was found that the employees were exposed to cases of physical
injuries or even death by working close to killer whales without protective
measures. The hazard was recognized since it is documented that some of the
killer whales had aggressive behaviors that included biting, lunging and
drowning trainers. One of the Tilikum had previously killed a trainer while at
a marine park in British Columbia. The hazard was causing or likely to cause
death or serious physical harm as was the case of Sea World Trainer Dawn Broncheau
who had died as a result of being drowned by Tilikum. Finally, there was feasible
and useful method to correct the hazard that Sea World failed to put in place
such as working behind a physical barrier, working a safe distance from killer whales
and putting on oxygen systems.

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The
elements of valid claim were satisfied under OSHA Act because Sea World failed
to keep the workplace free of hazard to which its employees were exposed. An
employer owes his employees the duty of care to which it was supposed to make
sure that its employees safety was guaranteed and taken care of and the
measures were put in place to see to it that the employees were not exposed to
possible causes of injury (Northrop, M. 2014). There was a breach of duty by
Sea world that breached her duty of care by failing to put in place measures
that would guarantee the safety of its employees therefore leading to the death
of Dawn Brancheau who was drowned by killer whale while performing. The breach
of duty was a direct cause of injury because it leads Dawn Brancheau’s death
who was drowned by Tilkum the killer whale. Finally, the injury or damage
caused financial loss as it led to the death of Dawn Brancheau who was
performing at the time of her death.

OSHA
enforces workplace safety and health standards by setting and enforcing
standards by training, education, assistance and outreach. It conducts planned
and surprise inspection of work cites covered by the OSHA Act to verify if it
complies with the set standards. Employee and employer representative
accompanies OSHA’s representative during the inspection (Kirby, D. 2012). If
any violation is found during the inspection an OSHA citation is issued by
listing the alleged violations, notices of penalties for each violation and an
abatement period is established. Penalties vary according to the nature of
violation and can be civil or criminal. SeaWorld’s operant conditioning program
rescue procedures that are meant to “recall” or distract whales fro dangerous
behavior had been found and proven to be insufficient. There had been at least
over seventeen incidences where killer whales had ignored attempts to “recall”
them form unwanted behavior over time. In fact the most recent recall attempts
had not been successful and had resulted to the deaths of Dawn Brancheau and
Alexis Martinez.

This
particular case was under the federal court system. Part of the related
jurisdictional requirements was that the case involved the violation of U.S
constitution specifically the Occupational Health and Safety Act (OSHA). SeaWorld
failed to put in place enough measures for its employees who were working with
killer whales. This exposed the employees to serious cases of injury that
included death. Another jurisdictional requirement was that the appeals court
had jurisdiction over the court therefore it was best placed to hear the case. Furthermore,
the case was of such importance because federal courts are established under
the U.S constitution to deliberate on disputes that involves the constitution
and the laws that have been enacted by the congress. In this particular
situation the case was involving the Occupational Health and Safety Act (OSHA
Act).

 The case was decided by a jury with the
majority rejecting SeaWorld’s challenge of a general duty clause violation
following the death of trainer Dawn Brancheau in February 2010. There was one
dissenting judge in that bench. The opinion of Judge Rodgers was that imposition
of the safety measures did not alter the essential nature of SeaWorld’s
business because it would not stop trainers performing with or caring for
whales. The majority judges in their ruling found out that the kind of close
contact between the trainers and the whales were not essential for SeaWorld
business as argued by them. They stated that prior to Dawn’s death in 2010 the
trainers performed such waterworks activities as riding on and swimming with
killer whales in deep water. They would also hug and lie down next to whales
during dry work on the slide out. SeaWorld had ceased those interactions
following the death of Miss Dawn over the past three years. Trainers no longer
perform waterworks and they use barriers and minimum distance precautions
during dry works. It was very clear that SeaWorld having adopted those measures
it was not essential to its ability to draw visitors, care for whales and
practice behaviors during shows. He was also of the opinion that the risks of
working with whales were well known and SeaWorld should have anticipated the
necessity for abating the risks as imposed after the accident. He further
asserts that the duty of providing safe workplace rests with the employer and
is not qualified by common law doctrines like assumption of risk. In the bench
there was a dissenting judge.

 The dissenting opinion of judge Kavanaugh was
that the department of labor had exceeded its authority in attempting to
prescribe risks that are “normal activities” intrinsic to the industry.
According to the dissenting judge he cited the obvious dangers of many sporting
events and entertainment shows. Further the majority judges addressed the
opinion of the dissenting judge by stating that “No one has described
SeaWorld’s killer whale performance as a “sport”. And Sea world had also
imposed some of the recommended measurers such as prohibiting trainers from
being in water with certain whales and increasing the required distance between
whales and trainers without harming its business.

I
believe that the outcome of the case was justified because decision that Sea
World should have done more to abate the hazard. Sea world was aware of the
hazards of drowning or injury when working with the killer whales during
performances. One of its killer whales named Tilikum is known to have
aggressive tendencies and it is documented to have previously killed a trainer
while at a marine park in British Columbia. Some of its killer whales are also
known to exhibit dangerous behaviors such as biting trainers, pulling trainers
in to water and lunging at trainers. Sea World should have put in place
precautionary measures to protect their employees from hazards that they were
exposed to when working with killer whales, use of oxygen systems to help in breathing
in the event of drowning (Kirby, D. 2012). With all this knowledge SeaWorld was
better placed to have put in place enough safety measures to ensure the safety
of its employees. It had every reason to be proactive given that there was
documented evidence of people who had died while working closely with some of
its killer whales. The measures include but not limited to working from a
distance when working with killer whales, working behind a physical barrier.
The measures would have protected the trainers from harm.