The operator of SeaWorld Orlando has lashed out at a lawsuit over a killer whale's drowning of a trainer, arguing that the parents of a 10-year-old boy who witnessed the tragedy have made “an improper attack” on its reputation.

Tilikum the orca with trainer Dawn Brancheau

The death of trainer Dawn Brancheau on Feb. 24 was a public relations nightmare for SeaWorld. During the “Dine With Shamu” show, the orca Tilikum grabbed her by the ponytail and dragged her under the water in front of horrified spectators including the Connell family from New Hampshire.

Suzanne Connell and her husband Todd sued SeaWorld in August, alleging it is liable for the psychological injury inflicted on their son as a result of witnessing the attack because it “failed to ensure that the wild animals it utilized in its shows, including Dine With Shamu, were trained so that they did not present a dangerous and/or deadly threat to the SeaWorld trainers.”

But SeaWorld Parks & Entertainment last week filed a motion to dismiss the case in which it describes the Connells' complaint as “read[ing] more like a press release than a legal pleading” and argues that they cannot recover damages for negligent infliction of emotional distress [NIED] because their son did not have a “close personal relationship” with Brancheau.

“Permitting Plaintiffs to proceed with this action would open the courtroom doors for every other opportunistic claimant who witnesses an accident,” the motion says.

SeaWorld attorney G. Mark Thompson of Orlando also aimed several barbs at the Connells, questioning why they “did not immediately remove their 10-year-old son from the [viewing] area as opposed to letting him witnesss 'much of what transpired' — only to later subject him to media attention.”

Under the NIED tort, a bystander can sue a negligent party by showing a physical injury caused by emotional distress and a close personal relationship to the directly injured victim.

The Connells' suit appears to break new legal ground by claiming such a relationship can be formed between a performer and a spectator. Brancheau “was delightful and personable and, as intended, bonded with [the plaintiffs' son], making a very deep, positive impression during the performance,” the complaint alleges.

The horror at SeaWorld Orlando, it says, has left the boy “with mental scars that have manifested to physical impairments which will be with him for the rest of his life” and SeaWorld was negligent in part because it knew Tilikum “had brutally killed its trainer once before and exhibited aggressive behavior towards many others.”

The Connells were referring to the drowning of a trainer by three orcas at Sea Land of the Pacific in British Columbia in 1991.

For its part, SeaWorld says “the bond between a performer and audience member clearly is not the type of relationship contemplated by [NIED] case law. Any argument to the contrary is specious.”

“If a cause of action existed here,” the motion to dismiss continues,

it also would exist for thousands of football fans who witness the death of a player due to a helmet alleged to be negligently designed; it would exist for thousands of fans who see a singer collapse at a concert due to alleged negligent overmedication; it would exist for thousands of fans who witness an obsessed person run onto a tennis court and stab a professional player due to alleged negligent security; it would exist for hundreds of thousands of fans who witness a racecar driver die in a crash due to a car or track alleged to be negligently designed.

Attorney Thompson also argues that SeaWorld is not liable for intentional infliction of emotional distress because its conduct was not outrageous. The Connells' complaint, he concludes, is a “thinly-veiled attack on the good faith SeaWorld has built in the community through an excellent record of safety and compassion for animals.”

Federal regulators have fined SeaWorld $75,000 for “willfully” endangering Brancheau's life but the company has appealed.

By Matthew Heller
10/6/10