AG Files Arguments To Deny Chimp Victim’s Claim

The state attorney general’s office has filed legal arguments to dismiss a request to sue the state for $150 million in behalf of Charla Nash, the victim of a brutal 2009 attack in Stamford by a chimpanzee that tore off her face and hands and blinded her.

“[T]he state recognizes that [Nash’s] injuries are indeed profound,” but Nash’s “proper remedy is against the owner of the chimpanzee or other appropriate private parties,”  two lawyers in Attorney General George Jepsen’s office wrote in papers filed Thursday with the office of state Claims Commissioner J. Paul Vance Jr.

The 37-page legal memo doesn’t establish a new stance by the state,  but reinforces and elaborates upon the position that the attorney general’s office has taken since 2010, when now-U.S. Sen. Richard Blumenthal headed it.

Vance  later this year is expected to issue a ruling on whether or not to grant permission for Nash’s conservator and lawyers to file a lawsuit in state Superior Court for $150 million in claimed damages. The state  enjoys “sovereign immunity” against most lawsuits unless such permission is granted.

Nash’s Bridgeport-based lawyers, Nash’s lawyers, the Bridgeport firm of Willinger, Willinger & Bucci, have until June 24 to file a reply brief with Vance’s office.

On Friday, one of them, Matthew D. Newman, reacted to the attorney general’s filing by saying, “While this action was anticipated, Charla is deeply disappointed that the State of Connecticut takes this position. ”

He added: “The State seeks to deny Charla the opportunity to have a hearing before the Claims Commissioner to determine whether she can obtain permission to sue the State.  She should be allowed to seek compensation for the catastrophic injuries she suffered as a direct result of the Department of Energy and Environmental Protection’s failure to seize and dispose of the chimpanzee.”

The two assistant attorneys general who wrote Thursday’s memorandum for the state, Maite Barainca and Nyle K. Davey, noted that Nash is already pursuing what they called the “proper remedy” for her injuries – in the form of a $50-million lawsuit against the estate of Sandra Herold, the owner of the 200-pound, 14-year-old chimpanzee, Travis. The chimp was killed by police after the attack, which occurred when the animal got loose and Nash went to Herold’s house in Stamford to help get him back into his cage. Herold, who was Nash’s friend and employer,  died in 2010.

“Prior to the attack on her, [Nash] was aware that wild animals can be dangerous, including Travis,” Barainca and Davey wrote.

Barainca and Davey wrote that “the central dispute in this claim is whether the State and its taxpayers should be financially liable – to the tune of potentially tens of millions of dollars – for injuries inflicted by a privately owned chimpanzee on the theory that [the state’s environmental protection agency] should have more aggressively enforced certain wildlife regulations. It should not.”

They argued that even assuming that the state “possessed sufficient regulatory authority to prevent the attack on [Nash], which is far from clear,” there is a “public duty doctrine” that “prevents imposing liability on the state under the present circumstances.” That doctrine says that the state can’t be forced to pay damages “for any omission in a regulatory enforcement function that is intended for the benefit of the general public and for which no duty of care is owed to an individual,” they wrote.

Without that legal doctrine in place, Barainca and Davey wrote, the state could face a “nearly limitless variety” of legal claims “based on perceived regulatory failures that are more properly asserted against private parties.” That’s because “state regulation touches almost all facets of modern life – transportation, criminal justice and public safety, public health, domestic relations, to name just a few,” they wrote.

If the state had to pay damages for injuries to people in all such areas touched in some way by state regulation, it would face “boundless financial liability” – and that, the two lawyers said, “would invariably lead to pressure to curtail standards and regulations or to enforce regulations in a defensive manner, ultimately to the detriment of public protection.”

Their memo reinforced the office’s original argument, made in 2010, that “any duties” by the state to regulate dangerous animals “were duties owed to the general public, and not to any particular individual.”

Nash’s lawyers, Charles J. Willinger and Newman, have disputed that position all along.  They have pointed to a state law prohibiting ownership of primates Travis’ size as pets, and have said the state DEEP had “received specific reports and complaints” about the danger posed by the chimp at Herold’s Stamford home. Four months before the attack, a state environmental official had said in a memo that the situation with Travis was “an accident waiting to happen.”

On Friday, Newman also said: “In our response to the Attorney General’s motion to dismiss we will highlight facts that clearly point to the culpability of the Department of Energy and Environmental Protection including its intimate knowledge of Travis and the danger he posed.  The Claims Commissioner is described as “the conscience of the State,” and it is our belief that it would be unconscionable to deny our client the opportunity to be heard.”

“As a matter of law, we believe that Charla is entitled to a hearing before the Claims Commission,” Newman said.

“I hope that I do get my day in court,” Nash, 58, said in an interview with The Courant last month. She said it “doesn’t sound very fair” for the state to deny responsibility for her injuries. She had a face transplant last year and lives at a Boston-area rehabilitation facility.   “It’s kind of amazing that they would let that happen,” Nash said in the interview last month. “With a dog, you’ve got to keep him on a leash. Animals have to have rabies shots. How come he was excluded? … And here he was like the size of a gorilla. … Why would they write a law and not enforce it? … They made a law that he was dangerous and that he should go. And then they’re saying … you’re on your own.”

The two assistant attorneys general wrote in Thursday’s filing that Nash “thought that Travis liked her and would vocalize and physically move around like a ‘kid that’s happy’ when she was inside the Herold house or near the secure area” in which he was kept. “Even so, the claimant had respect for Travis as a large wild animal and informed other people that she was afraid of Travis,” they wrote. Nash and her lawyers have said that she was never in the chimp’s presence without a cage or barrier between them, once he grew to maturity.

If Vance were to deny the request to sue the state on Nash’s behalf, that decision could be appealed to the legislature. Nash’s lawyers have hired a lobbyist Kevin Reynolds, who is legal counsel for the state Democratic Party, for $60,000 to represent her interests in the matter at the state Capitol.