THE CASE OF A WHALE OF AN ACCIDENT

Based on Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1

[It is April 5, 1971.Kent Burgess, the director of Sea World's animal training department, is in his office with Gail MacLaughlin, Sea World's public relations director.Sitting outside Kent's office is Anne E. Eckis, Kent's 21 year-old secretary.]

Gail:So do you think she'll do it if we asked, Kent.

Kent:I have a feeling she'll jump at the chance.

Gail:But isn't Shamu conditioned only to being ridden by people wearing wetsuits?In fact, didn't he attack a Catalina swimsuit model and even Jim Richards, one of our trainers, both of whom were wearing swimsuits?

Kent:Yes, but Anne is a strong swimmer.Sure, I read training reports that Shamu has been behaving erratically since early last month.But that's a passing thing.Even humans have moods.And really, Gail.What's the worst that can happen?Let's make it her choice and see what she says. [Speaks into telephone intercom.]Anne, could you come in here please?

Anne:Right away, Mr. Burgess.[She leaves her desk and joins Gail and Kent in Kent's office.]What's up?

Kent:Anne, how long have you been my secretary?

Anne:Since, last year.Don't you remember?I started at Sea World four years ago, when I was 17, as a ticket sales girl.Then I moved on to become a receptionist, left that to work for the accounting department, and then I was promoted to be your secretary.

Kent [to Gail]:Gail, Anne here is indispensable to me.Most of the time she does secretarial tasks, but she's always willing to pitch in wherever she's needed.Sometimes she takes the water temperature of the whale tanks, sometimes she does research, and sometimes she just runs errands that I don't have the time to do.

Anne:That's right, Gail, and for that I make $450 a month.[1]I love my job, even doing the non-secretarial stuff.It adds variety to my day.Mr. Burgess is a groovy boss.

Gail:Kent has told me what a valuable member of his team you are, Anne.He also tells me you're an excellent swimmer.Is that right?

Anne:Yes, I even have some scuba diving experience.

Gail:And you've done some modeling?

Anne:Yeah, lots.I remember laughing when I read the form that, like all Sea World employees, I had to sign when I was hired that authorized Sea World to use my physical likeness.I've been in front of the camera tons of times.

Gail:How would you like the opportunity to ride Shamu, the killer whale, for some publicity photos?

Anne:Oh, wow.When would it be?What would I be wearing?

Gail:We'd do the photo shoot on April 19, two weeks from now.You'd be wearing a bikini that we'll buy for you.We think the ads with the photos will draw people to the park, especially people your age.

Kent:Now, it's important that you understand, Anne, that this is your choice.I'm not making this a requirement of your job or anything.There are dangers to doing this.Shamu is, after all, a killer whale.

Anne:I know that, Kent. I think this would be exciting.I know I could fall off -- even trainers do occasionally.It's not like I've heard of whales pushing riders around.And, anyway, I'm a great swimmer.Thanks for asking me, guys.

[Gail and Anne exit.It is now 2:00 p.m. on April 19 and Anne has returned to Kent's office.]

Kent:Yes, Anne.Is the photo shoot over already?

Anne:No, Kent, we're about to start.For the first time, I'm not sure I want to do it.As you know, I've been training for this shoot for the last two weeks during normal office working hours with your permission.Mostly, I've been practicing with Kilroy, a much smaller whale, while wearing a bathing suit.Those sessions have gone great.During my one practice session with Shamu a few days ago I wore a wetsuit.I fell off, but I was able to swim to the edge of the tank without anything happening.

Kent:So it sounds like you're all set for today's shoot.

Anne:I certainly felt ready.But one of the trainers, just told me that he was not going to watch me ride Shamu because it was "really dangerous."Those were his exact words.

Kent [laughs]:Oh, don't worry, Anne.Trainers are paid to be nervous. There's nothing to be concerned about.The ride is as safe as it could be. You're too important to me for me to let anything happen to you.

Anne [smiles]:Thanks, boss.That's all I needed to hear.See ya in about an hour or so.This should be fun.

[Anne exits.It is now 4:30 p.m. and Gail has returned to Kent's office visibly upset.]

Kent:Hi, Gail.The photo shoot could not have been that bad.Where's Anne?

Gail:Kent, you'll never believe this.The first ride Anne took on Shamu went fine.But during the second ride, one of the trainers noticed that Shamu's tail was fluttering, which he told me was a sign that the animal was upset.Maybe we should have called off the whole thing then and there.

Kent:Why, Gail?What happened?

Gail:During the third ride, Anne fell off when Shamu refused to obey a signal.Shamu then bit her on the legs and hips and held her in the tank until she could be rescued.

Kent:My God.And I told her it would be safe shortly before the photo shoot began.How bad are her injuries?

Gail:I just called the hospital.The nurse I talked to told me that Anne suffered 18-20 wounds which required 100 to 200 stitches and will leave permanent scars.

Kent:How long is she expected to be in the hospital?

Gail:About five days and out of work several weeks.They also expect her to suffer some psychological disturbance from the incident.

Kent:Jesus.We'll pay all of her medical expenses, of course.We'll also continue to pay her salary during the entire time she is out of commission.

Gail:Will that be enough?I mean, won't she sue us?

Kent:I don't think she can. This is a workers' comp matter.I am shocked at what happened to Anne.I am.But she was injured at work.

Gail:But she's a secretary, Kent, not a whale rider.

Kent:I'm hoping that doesn't matter.If I'm wrong, I don't even want to think about what a San Diego jury would do to us.

[They exit.]

What's the legal question?

who do you agree with the employer or the employee why, explain. who wins?