On February 24, 2010 Sea World trainer Dawn Brancheau was killed when a killer whale dragged her off a platform during a performance before a live audience at Sea World in Orlando, Florida. Brancheau suffered traumatic injuries and drowned.
The Secretary of Labor issued three citations to Sea World following an investigation by the Occupational Safety and Health Administration ("OSHA"), including a citation for two instances of a "willful" violation of the General Duty Clause of the Occupational Safety and Health Act for exposing trainers to the recognized hazards of drowning or injury during performances, and proposed a penalty of $70,000. An ALJ affirmed the citations after an evidentiary hearing, finding [1] that Brancheau was performing at the time she was killed; [2] that close contact with killer whales was a hazard likely to cause death or serious injury; [3] that there was "abundant" evidence, including the deaths of three trainers while working with killer whales at facilities around the world, that Sea World was aware of the hazard; and [4] that there were steps that Sea World could have taken, and in fact did take subsequent to Brancheau's death, to abate the hazard. The Occupational Safety and Health Review Commission denied Sea World's petition for discretionary review, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

1. What are the legal issues in this case? What did the appeals court decide?

2. What things must be shown in order to establish a violation under the general duty clause of the OSH Act? How are each of these elements satisfied in this case?

3. This case involves an unusual hazard faced by employees in a business that produces a unique form of entertainment. Legally speaking, should any of that matter? Should OSHA be able to regulate safety in the entertainment industry in the same manner as any other industry? Why or why not? If so, should this also extend to the realm of professional sports? Why or why not?

4. An undercurrent in this case is the claim that the regulation of safety by OSHA is interfering with the basic business model and product of Sea World. Is that true? Why or why not? In general should OSHA be able to ban activities, substances, or work processes because they are too dangerous even if they are widely used in an industry? Order the closure of inordinately dangerous facilities? Why or why not?