December 17, 2009

CHIMP VICTIM'S FAMILY FACES UPHILL BATTLE TO SUE STATE

The months before and after Charla Nash was mauled by a chimpanzee were marked by confusion and inaction at the Department of Environmental Protection — events that now would seem to bolster the family's quest to sue the state for $150 million.

But under legal concepts dating to feudal England, it is hard to take a state to court, even in the face of clear errors. Through its claims office, the state of Connecticut decides which requests to sue will be granted. Most are denied.

Michael Stratton can attest to this. The veteran personal-injury lawyer in Connecticut was successful once in suing the state, in a situation involving negligence on the part of park staffers, but was denied when he tried to sue the Department of Motor Vehicles on behalf of families of victims in the Avon Mountain crash. He is now taking another tack in the Avon case, and has requested to sue the Department of Transportation.

"Even when they screw up, they are generally immune," Stratton said of top state officials. "It's extremely difficult for a private person to hold government responsible for mismanagement."

In the chimp case, a DEP wildlife biologist wrote a memo four months before the February attack that Travis the chimp, at 200 pounds, could seriously injure someone if he felt threatened and was "an accident waiting to happen," yet her superiors took no action.

After the attack in Stamford, then-DEP Commissioner Gina McCarthy explained the inaction in part by saying, "We chose not to enter what we believed would be a custody battle involving a local celebrity," meaning Travis, who was widely known in town.

Earlier this month, Stamford State's Attorney David Cohen said his decision not to prosecute chimp owner Sandra Herold was based in part on the DEP's failure both to convey its concerns about Travis to Herold and to enforce a law that would have required a permit for the chimp since 2004.

If a private company acted the way the DEP did, Stratton said, the filing of a lawsuit would likely be a foregone conclusion. But here, it might be that the Nash family never clears the first hurdle, in the person of state Claims Commissioner James R. Smith. He must give his consent if the family's claims of negligence against a state regulatory agency are ever to make it in front of a jury.

Although most requests to sue the state are denied, there are exceptions. Court actions that are allowed by statute, such as if a state vehicle or a highway defect causes an accident, can proceed to court. Another exception is when a case involves a function that could readily be performed by a private entity, such as the operation of a park, where admission is charged and management is responsible for maintaining order and safety.

The concept of a shield against lawsuits is called "sovereign immunity" and dates to prohibitions against suing the king of England. The idea, then and now, is that if government were subject to a constant barrage of lawsuits from every aggrieved party, it would collapse.

As a result, officials in a state regulatory agency are generally not held liable for discretionary decisions and actions they take or do not take, unless they break a specific law, said Peter Kochenburger, an assistant professor at the University of Connecticut Law School.

Exercising discretion can protect against lawsuits, but "it doesn't mean you did the right thing," Kochenburger said.

Attorney General Richard Blumenthal's office is reviewing the Nash family's claim, as it does all matters filed with Smith's office. Smith has two years to act unless an extension of time is requested. While the family and the DEP wait, the question reverberating throughout the agency is whether there was an obligation to act.

Arthur Rocque, who retired as DEP commissioner in 2004, said in an interview this week that the agency's concerns about Travis date to the late 1990s, or about four years after Herold first took Travis home. In 2003, Travis bolted from a car and eluded police in downtown Stamford for several hours before he was returned to Herold, but Rocque said that the agency's misgivings about the chimp predated that episode.

"Our law enforcement divisions had concerns. We talked about it. We went to the attorney general's office and were told we didn't have the legal authority to remove the chimp under the exotic pet statute," Rocque said.

In fact, chimpanzees and other primates were added to the list of prohibited pets in Connecticut only after Nash was mauled and nearly killed, losing her hands and much of her face in the attack. However, the law since 2004 did require that chimp owners have a permit for their animals — an aspect of the statute that the agency did not enforce in the case of Travis.

McCarthy, who left the DEP earlier this year to become a top administrator at the U.S. Environmental Protection Agency in Washington, told the Connecticut legislature after the attack that the agency had been hamstrung by an ambiguous law.

But in the Nash family's claim, lawyer Charles Willinger of Bridgeport and his partners pointed out that although the agency was taking no action against Travis, it prosecuted the owner of a 30-pound gibbon, an animal one-sixth the size of Travis. The gibbon owner was cited in November 2008 for possessing a primate without a permit, and in March 2009 was denied a permit under a provision of the law that made it illegal to possess primates brought into the state after October 2003.

Stratton said he understood that the "state has to be prudent about the lawsuits it allows to proceed."

But he said the contention by DEP officials that they were hindered by an inadequate law "is a defense that should be argued on its merits in court."

"That is something you say in front of a jury of six people," said Stratton. "Let them decide."