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Michael Phelan
Michael Phelan
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Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

4 comments

Let’s see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I’m not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner’s insurance company. Consequently, I don’t expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers’ compensation claim. The strategy, if successful, would bar the victim’s claim against the chimp’s owner and limit her damages to whatever is recoverable under the applicable state worker’s compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one’s face) are typically not covered by worker’s compensation.

Here’s the genesis of the worker’s comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp’s face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash’s hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold’s tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend’s pet into the house sound like part of Nash’s duties as a tow truck company employee? Not in a million years.

Nash’s family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ”a wild animal with violent propensities.” But Herold’s attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash’s claims against Herold are barred by the workers’ comp statute. I wonder if he’ll be arguing that Travis was a statuory co-employee.

Here’s the good news. We don’t need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers’ compensation plea will not succeed.

4 Comments

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  1. Primate Envy says:
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    Every time I think I’ve seen how low lawyers can go one of them breaks the record. What a Schmoe!!! It just convinces me(not that I needed it)that lawyers like this are simply whores who will attempt any defense for the right price devoid of any morals whatsoever. What a SCHMOE!!!

  2. uncle mikey says:
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    Just goes to show, never be friends with your boss. That, and think twice before taking a job in a firm whose owner dresses up chimps in children’s clothes. Oh, and don’t bring an Elmo doll to a grumpy monkey in the hope of calming it down. Just makes ‘em even more fussy!

    As to Primate Envy’s thoughts about attorneys, what’s so whacky about the proposed defense? Haven’t you heard about the “trunk monkey”? They’re not just on TV commercials: They really do exist! Only now I’ll have to keep my eyes peeled the next time I call AAA for road service. That, and I’ll keep a banana or two along with the spare.

    Only in the good ol’ U.S. of A.!

  3. Mike Bryant says:
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    The main point I think is your last one, the system does a good overall job dealing with these issues. The defense is just that a defense. Questionable if it will be successful.

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    Luring a chimp into a private home is not in the scope of employment for a tow truck company employee. See ABC story quoting Connecticut workers’ comp lawyers. http://abcnews.go.com/US/travis-chimp-owner-injury-damages-subject-workmans-comp/story?id=8840129 If a plaintiff’s lawyer made this argument, it would be lambasted by Rush Limbaugh and all the other blow hards who hate the right to trial by jury.