There really ought not to be two standards for what is fair, just and reasonable, one for the ordinary, run of the mill case, the other for cases in which the world is watching, struck dumb with pity. But lawyers for Charla Nash think otherwise.
Ms. Nash is an entirely sympathetic figure. She is the Stamford woman who has mauled by a chimpanzee kept as a pet in 2008. The animal went berserk, attacking Ms. Nash and ravaging her face, blinding her, destroying her hands. The case went viral, the way some cases do. Ms. Nash survived the attack and lives scarred by this attack, blinded, disfigured and diminished. It is what lawyers call a high-profile case.
Her lawyers think $150 million is fair, just and reasonable compensation for her injuries.
The trouble is, most chimpanzees don’t carry insurance, and there are policy limits and exclusions on homeowner’s policies for the person who kept the chimpanzee as a pet. While Ms. Nash’s counsel has filed a $50 million claim against the estate of the now-dead owner of the chimpanzee, Sandra Herold, odds are nowhere near that amount will ever be recovered. Most folks don’t mint their own money.
But some governments do mint money, and, when they can’t, they just raise taxes incrementally on one thing or another to raise dough. Ms. Nash’s lawyers think the state should pay Ms. Nash.
The law generally does not permit suits against the state. A bit of medieval quackery, sovereign immunity, prevents such suits. You can only sue the state with its consent. When you want permission to pick the sovereign’s pocket you must either get legislation passed or get permission from the Connecticut Claims Commission.
Claims Commissioner J. Paul Vance will hear oral argument on August 10 about whether to grant Ms. Nash permission to sue the state. I cannot think of a reason other than pure sympathy to open the state’s coffers. And if we are to offer them to this victim, then why not open them for the thousands of other people who make claims?
Does Ms. Nash get special treatment because she has been on Oprah Winfrey’s show?
Lawyers for the injured woman claim the Department of Energy and Environmental Protection is guilty of "institutional negligence." The state knew this accident was "waiting to happen." It should have seized the chimpanzee. The failure to do so proximately caused injury to Ms. Nash.
A law student writing such an essay on a first-year torts exam might score a few points for creative effort. But few professors would reward the answer with an A. It mocks the concept of near, or proximate cause. It confuses personal negligence with institutional policy. It’s a word salad of buzz words tossed together and thrown against the law’s wall.
Ms. Nash’s lawyers probably know this, so they have sprung for a high-priced lobbyist, paying Kevin Reynolds, legal counsel for the Democratic Party, $60,000. His job is to pitch the request for permission to sue the state to lawmakers after the Claims Commission dismisses the action. The Judiciary Committee and the General Assembly can pass a Special Act giving Ms. Nash the right to sue.
In almost any other context folks would cry foul about buying a high-price lobbyist to influence folks in an adjudicative proceeding. Offer an influence-peddler money to shmooze with a judge or hearing offer money, and land in the slammer. But lawmakers are different, I suppose; we can purchase influence in that forum.
Ms. Nash is entirely sympathetic. Her injuries are grievous and tragic. She’s a victim of the sort of chaos will all fear. But she’s not the victim of a tort, at least not one committed by a human being. And, last I checked, you can’t sue a chimpanzee.
On Ms. Nash’s lawyer’s theory, she gets paid because the state should have known the monkey would attack her and the state should have done something. That will sound like music to the ear of every grieving family who has had a family member murdered or maimed by a defendant with a criminal history. The state "knew" in those cases, too, that there was a potential for harm. Why not let all victims sue the state?
How to draw the line between Ms. Nash and other victims? You can’t in a principled way. You can only hope sympathy and a high-priced lobbyist will help you find a pot of gold. Suing the state in this case makes a mockery, not, make that a monkey, of justice. I pity Ms. Nash, but I don’t see the justice in giving her privileged status at law.
Reprinted courtesy of the Connecticut Law Tribune