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.