Chimp attack victim fights for chance to sue state for negligence
Chimp attack victim fights for chance to sue state for negligence
Friday, August 10, 2012
Lawyers representing the state and a former Stamford woman brutally mauled by a 200-pound chimpanzee in 2009 battled for nearly two hours Friday over the state's potential liability in the attack.
Charles Willinger of Bridgeport, the attorney for attack victim Charla Nash, repeatedly cited a memo from a state biologist who warned -- just three months before the incident -- that a "very large and tremendously strong" adult chimp being kept in a private residence was "an accident waiting to happen."
But Assistant Attorney General Maite Barainca insisted that state government had no role in the attack, which occurred on private property; and if held liable for every instance that private parties ignored government regulations, such rules would become "an unaffordable luxury."
"Charla was a generous and fun-loving woman and she was a loving mother," Willinger told state Claims Commissioner J. Paul Vance Jr. during Friday's hearing in the Legislative Office Building.
"Her life and the world she lived in changed forever" on Feb. 16, 2009, when Nash visited the home of her friend, Sandra Herold, in Stamford. Herold lived with an adult male chimpanzee, "Travis," that had been acquired a few weeks after birth in 1994 in Missouri.
The chimp attack cost Nash her sight and both of her hands. She also had to undergo a face transplant to overcome extensive damage.
Herold died one year later, at age 72, of a ruptured aortic aneuryism, and Nash is suing the woman's estate.
But Nash also is seeking permission from the claims commissioner to file suit against the state, charging that the former Department of Environmental Protection was negligent in allowing a large, powerful wild animal to be kept in the private residence of a senior citizen. The DEP was merged in 2011 with the state's energy regulatory agency, and renamed the Department of Energy and Environmental Protection.
"The one central fact is, had the state exercised its mandatory obligation to seize and dispose of this illegally possessed chimp, this never would have happened," Willinger argued.
When Herold brought the 3½-week-old chimp home to Stamford in July 1994, it was the only chimp in the state at the time, even including private and public zoos, Willinger said.
"Travis" first popped up on the DEP's radar in 2003 when he briefly escaped from Herold's home, and was later recaptured.
Section 26-55 of the Connecticut General Statutes prohibits possession of a chimpanzee unless a permit has been issued by the DEP, but it exempted primates kept in the state prior to October 2003.
Willinger said this grandfathering provision effectively applied only to "Travis," since he was the only known chimp in the state at the time.
The DEP proposed an amendment in the spring of 2004 to ban all wild primates under any circumstances.
Instead, legislators enacted a measure allowing primates in private residences, but a permit would be needed to keep any weighing over 50 pounds.
Between 2006 and 2008, "Travis" would reach maturity, weighing about 200 pounds, Willinger said.
During that same span, DEP biologist Elaine Hinsch would write two memos to her superiors, expressing concerns about "Travis," whose aggressive behavior prompted Herold to call a Stamford nature center in 2008 and ask them to send an attendant with a tranquilizer gun to calm her pet down.
In the second memorandum, dated Oct. 28, 2008, Hinsch wrote that Herold was in "illegal possession" of the chimp that "does not meet the exemption for possession."
"I am concerned that if he feels threatened or if someone enters his territory he could seriously hurt someone," Hinsch wrote, adding it was unclear whether Herold's enclosure for 'Travis' in their home was even strong enough to contain him. "...Also, I feel it would be irresponsible to issue a permit if there's a potential public safety issue. We would just be condoning the activity.
"...I would like to express the urgency of addressing this issue. It is an accident waiting to happen."
Willinger told Vance that the statute's directive is clear: "If there's no permit, seize the chimp. That's what it says. ... You must instinctively know, you must instinctively feel the DEP was negligent. They were wrong morally. They were wrong legally."
Nash has a suit with a $50 million claim pending against Herold's estate, and Barainca said Nash is right to proceed with that.
"She deserves both our sympathy and our admiration for her courage in handling it," the assistant AG said.
But Barainca also said the state had no role in the attack. "The undisputed fact is the claimant was injured by Ms. Herold's chimpanzee on Ms. Herold's property," she said.
And even had the DEP gone to court in an effort to seize Herold's chimp, there is no guarantee a judge would have supported the department, Barainca said.
Were the state held liable for every tragic injury caused by a motor vehicle or boat operated out of compliance with state regulations, "we simply may not be able to afford many of the regulations we rely on for public order and public safety," she said.
Barainca also argued that unless the legislature specifically waives the state's sovereign immunity when it drafts a regulatory statute, then the government cannot be sued for failure to enforce those regulations, adding no such waiver exists in the provisions dealing with primates.
If the state is found negligent, its taxpayers could ultimately be responsible for tens of millions of dollars in damages, she said.
The attorney general's office has filed a motion to dismiss Nash's application to present her full case to the claims commission.
Vance, who heard oral arguments on that motion Friday, said he would accept further written arguments through Aug. 31, and would issue a ruling likely within a month after that.
If he rules in favor of Nash, that only guarantees her the right to move onto the next step and present her case for damages to the claims commission. If Vance rules she doesn't have the right to sue the state, Nash can appeal to General Assembly to reconsider his decision.
Nash, 57, who attended Friday's hearing but did not speak during it, told reporters afterward that "I hope and pray that the commissioner will give me my day in court, and I also pray and hope this will never happen to anyone else again. This is not nice."
She added she was disappointed in how the attorney general's office presented it case. "I just feel they didn't cover the points my attorney had stated."
Willinger said Though Nash's health has improved somewhat, Willinger said, she is on 17 different medications and needs further surgeries and physical therapy. "There are tremendously significant bills and ... the bills are mounting," he said.
Nash, who spoke with considerable effort, now lives in a nursing home in Boston. "I miss home," she said. "When you're in a facility, you're alone. It's hard, but I'm thankful I'm still here."