No good deed goes unpunished. Ask Charla Nash. When she helped her friend and employer, Sandra Herold, try to recapture Herold’s pet, Travis, and get him back into Herold’s home, Travis turned surly. He attacked Nash, nearly killing her in a frenzy in which Nash was blinded, her face torn off, and her hands literally chewed away. Travis, you see, was no ordinary pet. He was a chimpanzee weighing almost 200 pounds.
What was a Stamford resident doing with a pet chimpanzee?
Plenty of people wondered about that, including state regulators at what was then the Department of Environmental Protection. They knew Travis was a handful.
One state worker wrote in a memo that Travis was an “accident waiting to happen.” Travis had already made the news prior to his mauling of Ms. Nash. He once got loose in downtown Stamford. It took lawmen hours to get him off the streets. State employees urged Ms. Herold to place Travis elsewhere, in a more appropriate environment. But Herold loved Travis. He’d share meals at the family table, using silverware, even, according to depositions in the case, sharing an occasional glass of wine from his own stemware.
In Herold’s eyes, Travis was no ordinary chimp. Except he was what nature made him, a chimpanzee with a strong territorial instinct. He knew how to fight to death when faced with a primal challenge. Herold from time to time called others frantic for help with Travis. She once called an animal trainer begging her to come quickly with her tranquilizer gun — Travis, apparently, wasn’t pleased with the evening’s wine selection, I suppose.
It is impossible to behold Nash without pity, just as it is impossible to feel anything other than irritation at Herold. When Nash sued Herold, who is now deceased, the case settled for virtually all Herold had, some $4 million in real estate, cash and property. It was, as negligence law goes, a slam dunk of a case.
The law of negligence is clear. A party suing, the plaintiff, must prove four things: The person sued owed them a duty; the duty was breached, or broken; as a result of that broken duty the plaintiff was injured; and, finally, what the value of the damages were. Among the things that can fetch money damages in a negligence action are emotional distress and pain and suffering. Herold invited Nash onto her property and owed her a duty to avoid exposing her to harm from her pets. The duty was breached by exposing Nash to a raging animal. The animal attacked causing life threatening injuries. Nash needed expensive medical care and no doubt suffers, as she will each day, the loss of her God-given window on the world. Case closed.
Not so fast.
All the money in the world won’t make Nash whole. Four million dollars certainly didn’t. So she decided to sue the State of Connecticut, asking for $150 million. In other words, she’d like each of the state’s 3.59 million people to ante up roughly $42; that comes to about $115 per each of the 1.3 million households. Nash’s lawsuit was thrown out this week by a little-understood body called the state Claims Commission. Her lawyers promise an appeal, but they stand no hope of success. That’s because you can’t sue the state without its permission. It is also because the state had no general duty to assure that bad things do not happen to good people.
As crazy as it sounds in this republic of ours, the state, the sovereign, is immune from suit. You can only sue it with its permission. Think of an immunity in the following way: You and I are tokens on life’s grand board. The rule of law defines what we can do to one another, at least in court. The rule maker, the sovereign, has declared itself off limits. You can’t touch it without its permission. It’s a vestige of rank medievalism that crept into the Republic with English law when we still kneeled before a king. It is the Claim’s Commission’s job to decide whether justice and fairness require that the state consent to be sued. To win this dispensation, you have to show that if the state were a private party, you could have brought a successful action.
Nash can’t do that.
Her lawyers make a powerful case that state regulators failed to do their job. They knew Travis was a menace waiting to snap. They failed to act. Had they done something, Nash wouldn’t have been injured. It all sounds a lot like a negligence case, doesn’t it?
Here’s the rub. The state and its agents don’t owe us a general duty to keep us safe against all possible contingencies. If it did, we’d all have claims when social services failed. This doctrine surprises folks. Don’t they have a right to have their neighbor arrested? Not really. The courts protect the sovereign, and its agents, from suits claiming no more than a general duty. It was not foreseeable that Travis would attack Nash.
In one famous Connecticut case involving a municipality immunity, a police officer stopped a drunken driver. He gave the driver a break, telling him to head home. The driver rounded a corner, and plowed into another person, killing them. The dead man’s estate sued. If the cop had done his job, this wouldn’t have happened. True enough, the court concluded. But at the time the officer let the driver go, the driver’s victim was not a foreseeable victim in immanent risk of harm. In other words, how could the officer have known the bad fortune awaiting the victim? (Note: You want to scream at me now, I know it. Here’s what I tell clients: I don’t write these crazy laws; I just read them.)
Nash’s lawyers know the law is against them. So they’ve prepared a fallback plan. Permission from the Claims Commission is only one way to get permission to sue the state. The General Assembly can also grant permission by means of special legislation. So Nash’s lawyers have already spent $60,000 on a lobbyist to work lawmen over one at a time. Expect legislation next year.
It will be hard to say no to Nash. She is as sympathetic figure as they come. But somehow this business of special rules for sympathetic plaintiffs seems antithetical to the rule of law. The state fails people all the time. How do we decide whom to pay, and when? When do inner city kids get their award for attending substandard school or playing on unsafe streets? Why do you owe Nash $42?