Training killer whales is a dangerous activity. Could Seaworld have taken abatement measures, such as prohibiting contact with the whales unless the trainers were protected by a physical barrier? Or is the training of killer whales such an inherently dangerous activity that the employer had done all it possibly could to ensure the safety of its employees?
As the majority observed, upholding the order, legislation imposes a "duty to ensure a safe and healthy workplace on the employer, not the employee" and, quoting one of its own previous decisions, noted that the duty "is not qualified by such common law doctrines as assumption of risk, contributory negligence or comparative negligence" (slip op. at p. 13).
Yet again, tort law doctrine is modified to meet the needs of a regulatory scheme. Or, more properly, administrative decision-makers are able to modify general legal doctrines in order to better serve the regulatory purposes they are charged with achieving.
For this reason, Judge Kavanaugh's dissent, though entertaining, is not compelling. He asked how the Department of Labor's claimed authority to regulate killer whale performances could rationally be reconciled with its refusal to regulate sporting events. Aren't American Football and NASCAR racing similarly dangerous activities?
In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within that industry. Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of zoo and animal shows, and punching is part of boxing, as those industries define themselves. (slip op. at p. 6)One could argue the toss on Judge Kavanaugh's analogies. Is interacting with killer whales like tackling in football? Or is requiring trainers to get into contact with killer whales without a physical barrier for protection more like preventing football players from wearing helmets or tackle pads?
Regardless, these analogies are for the administrative decision-maker to make in the first instance. And in a land where the legislature has decreed that tort law should not reign supreme, old notions of volenti cannot be too rigorously applied.