Legal Tactic Could Restrict Compensation for Chimp Attack Victim

Oct. 15, 2009— -- The owner of a 200-pound chimp named Travis who went berserk and ripped the face off of the owner's friend has enraged some by trying to avoid a $50 million lawsuit, claiming the crippling attack should be treated instead as a workman's compensation claim.

If a judge agrees, it would mean Charla Nash – who was blinded in the attack, has difficulty walking and can only eat through a straw – would not be entitled to receive any money for pain, suffering, humiliation or loss of enjoyment of life, which usually makes up the largest part of any civil award.

Trial lawyers are buzzing about the case. On industry Web sites, like InjuryBoard.com, some are expressing outrage that Nash might not get to sue for a large civil claim. Michael Phelan, a Virginia-based attorney, writes, "This frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company."

The legal strategy may have some merit, said Joseph Little, a professor emeritus at the University of Florida Levin School of Law and a specialist in workers' compensation issues. He said the argument might prevail if lawyers can prove that there was a regular employment relationship between Nash and Travis' owner Sandra Herold, and taking care of the chimp was part of those duties.

"Although the facts here are unusual as is often true in extreme cases…I don't think the claim itself is so unusual. If you substitute the chimp for a dangerous machine, it doesn't seem so unlikely," said Little.

At the time of the sensational incident last February, Nash, 55, worked for Herold in Stamford, Conn., as an assistant at her home. Herold's home was also the site of the business office for her towing company, Desire Me Motors.

On the night of the incident, Travis went after Herold. When Herold called Nash for help, the chimp turned on her and attacked.

Travis was later shot by police and Nash remains at the Cleveland Clinic recovering from her injuries. Herold told police she had given the chimp Xanax that day to calm him down, although she later retracted that statement. A multimillion-dollar civil suit was filed against Herold in Stamford Superior Court a few weeks after the attack.

But on Sept. 28, an injury claim was filed on Nash's behalf with the Connecticut Worker's Compensation Commission. The report describes the accident as "attacked helping to shepard (sic) chimpanzee back to residence -- multiple injuries to multiple body parts."

Workman's Comp Could Restrict Financial Award to Travis' Victim

Nash is listed in the claim as a full-time employee of Desire Me Motors with a salary of $400 a week.

Herold's attorneys claim that because Herold's home was also her place of business and because Nash, in addition to her office duties, took care of and fed Travis, the injuries she sustained in trying to lure the chimp back into his cage occurred as a part of her regular employment.

If the workers' compensation claim is accepted, Nash would only receive money for her medical bills and a portion of her salary.

"The medical bills would be paid and the loss of use of body parts would be paid pursuant to a statutory scheme," said John Mastropietro, chairman of the Connecticut Worker's Compensation Commission. For instance, an employee who lost the use of an arm completely would be entitled to 208 weeks of benefits at approximately 65-70 percent of salary. In Nash's case that would work out to be about $260 to $300 a week.

Attorney Joe Gillis, who has been trying workplace injury claims in Connecticut for almost 20 years, said, "Ultimately, the whole issue will turn on whether the judge considers what occurred to be an activity in the course of her employment or something outside of it…it's not every day someone is called to lure a chimp into someone's home."

If Herold succeeds in arguing that Nash's injuries are a matter of worksman's compensation, Nash would not be able to collect the millions she is seeking for pain, suffering and loss of her quality of life.

"It caps the damages…so if you can claim you are an employer and the person suing you is an employee, then workers' comp is a nice deal for you," said Keith Hylton of Boston University School of Law.