The Star Beacon; Ashtabula, Ohio

World, nation, state

June 15, 2013

Charla Nash denied permission to sue Connecticut over 2009 chimp attack

HARTFORD, Conn. — A multimillion-dollar claim against the state of Connecticut by Charla Nash — blinded in a 2009 mauling by a 200-pound chimpanzee that tore off her face — was dismissed Friday by state Claims Commissioner J. Paul Vance Jr.

Vance’s decision denies Nash permission to sue the state in Superior Court for $150 million for allegedly failing in its regulatory duty to protect the public — including her — from dangerous animals.

The state enjoys “sovereign immunity” against most lawsuits for damages unless the claims commissioner grants permission to bring an action in state court.

Nash, 59, whose injuries required a face transplant, still has a chance to appeal to the state General Assembly to reverse Vance’s decision and let her make her case in court.

In a five-page decision released Friday afternoon, Vance announced that he had granted a motion by state Attorney General George Jepsen’s office to dismiss Nash’s claim.

Nash received a successful face transplant in 2011, two years after the attack by the 14-year-old chimp, Travis. The chimp was owned by her friend and employer, Sandra Herold, who died in 2010. A transplant to give Nash new hands was unsuccessful. She lost all of one hand in the attack, and all but the thumb of the other.

Vance held a lengthy hearing on the claim last August.

“While it is lamentable that Ms. Nash was injured by the chimpanzee, in order to overcome the presumption of sovereign immunity. she must show that the legislature either expressly or by implication, waived the state’s sovereign immunity,” Vance wrote in his decision. “At the time Ms. Nash was attacked, there was no statute that prohibited the private ownership of the chimpanzee nor was there any statutory language that would have created a duty (by the state) to Ms. Nash as a private person.”

Nash and her lawyers argued otherwise.

Nash said last year that she believes that state environmental officials “failed to do their job” by ignoring warnings that the dangerous animal should be removed from Herold’s home in Stamford, Conn. The attack happened on Feb. 16, 2009, when Nash answered Herold’s call to help return Travis to his cage, after the animal had escaped and was roaming out of control on the property.

Jepsen’s office had argued that Vance should deny Nash permission to sue the state in court because of a body of law called the “public duty doctrine.” Under that doctrine, Jepsen’s office said, the state has a duty to protect the general public in regulatory matters, but not any specific individual who might be injured by a person who is not complying with state regulations.

Assistant Attorney General Maite Barainca asked rhetorically at least year’s hearing “what would happen” to state taxpayers if they were exposed to “limitless claims” in court every time there was “a perceived failure to regulate?”

Nash’s attorney, Charles Willinger of Bridgeport, Conn., countered at the hearing that Travis was “an accident waiting to happen.” He was quoting a phrase originally used in late 2008 by a state Department of Environmental Protection official, Elaine Hinsch, in a memo warning other officials at the agency that Travis had grown too big, powerful and dangerous to remain with Herold.

The DEP, now known as the Department of Energy and Environmental Protection, took no action on Hinsch’s memo — written 3 1/2 months before the attack — even though Willinger said that it had the legal authority to seize Travis as an unlicensed, “illegally possessed” animal that “had the strength of five or six adults.” Willinger said “that’s where the liability lies,” adding that state officials were “wrong morally” and “wrong legally,” because they “turned a deaf ear to a foreseeable risk.”

However, Vance wrote: “It would exceed the scope” of his authority “to assume any intent of the legislature where there is no clear language, or evidence of intent in the statute, to support the claimant’s position that (state statutes) required seizure of the animal and also created a duty of care to the claimant.”

Jepsen’s office argued that Nash’s proper route was to seek damages from the estate of Herold, the chimp’s owner - which she and her lawyers did, while also filing the claim to sue the state.

In that Superior Court case against Herold’s estate, a $4 million settlement was reached in December, turning over to Nash nearly the full amount of Herold’s net worth.

Herold had no insurance for either her business or her home, but her estate was worth about $4.5 million, Willinger said at the time. Under terms of the settlement announced in December, Herold’s estate was to provide Nash with $3.4 million in real estate; $331,000 in cash; $140,000 in machinery and equipment; and $44,000 in vehicles.

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