While it was a 200-pound chimpanzee which attacked a Connecticut woman outside its owner's house, a stuffed animal could help the owner at least limit her liability for the primate's violent behavior.

The horrifying Feb. 16 attack on Charla Nash, 55, by Travis, a 14-year-old chimp, left her with massive injuries to her face and hands. Travis's owner, Sandra Herold, hit him with a spade and stabbed him before police arrived at the scene and fatally shot him.

Nash's brother, acting as conservator of her estate, sued Herold last week under theories of strict liability, negligence and recklessness. “Charla's injuries, losses and damages resulted from a dangerous propensity: a. that is characteristic of wild animals such as the Chimpanzee, and/ or b. of which the Defendant knew or had reason to know,” the complaint says.

Nash was attacked after Travis escaped from her friend Herold's Stamford, Conn., home and Herold called her for help getting the chimp back inside. According to the suit, Travis had previously displayed “violent and erratic behavior typical of its wild nature,” biting two other people in 1996 and 1998.

Herold told police immediately after the attack that Travis was rambunctious that day and she gave him the anti-anxiety drug Xanax. “This chimp was running amok,” says Nash co-counsel Charles J. Willinger (Willinger Willinger & Bucci, Bridgeport, Conn.).

In one of the few chimp attack precedents, a Florida appeals court noted that “the owner or keeper of a wild animal is held to a rigorous rule of liability on account of the danger inherent in harboring such animal.” Isaacs v. Powell, 267 So.2d 864 (1972). Under such strict liability, negligence on the part of the owner is irrelevant.

But Connecticut courts have yet to address strict liability for a wild animal attack. And the defense could argue that Nash provoked Travis to attack her.

In a TV news interview, Herold has said that Nash drove up to her home in a car Travis had never seen before. She was also sporting a new hairstyle and, as she got out of the car, playfully held a stuffed animal in front of her face in an apparent effort to calm the chimp down.

“The only thing I can think of is he thought she was going to harm me,” Herold said. “He didn't recognize her, she had the toy in front of her.”

Discussing the incident, one blogger faulted Nash for going to Herold's aid rather than call animal control. “If I tell you I’m thinking about making homemade dynamite and your response is 'I’ll be right over with the matches,' you’re partly responsible when the house ends up going up in smoke and your arms get blown off,” the blogger said.

The stuffed animal could be significant because strict liability does not apply when the injured party “voluntarily or consciously does something which brings the injury on himself.” Baugh v. Beatty, 91 Cal.App.2d 786 (1949).

Another Nash attorney, Matthew D. Newman, stresses that it's still unclear exactly what Herold told Nash in asking her to come over. “The real issue is, why didn't Ms. Herold call 911 or animal control instead of calling Ms. Nash?” he told On Point.

Case law also suggests that Herold will not be able to show such a close connection between Nash's intentional acts and Travis's attack that it would be unfair to hold her strictly liable for the victim's injuries.

“Security of the dangerous animal must be assured under all circumstances, for the gravamen of tort liability is the keeping of the animal,” a Louisiana appeals court said in Briley v. Mitchell, 115 So.2d 851 (1959), while, in Isaacs, the court found that a wild animal keeper has a defense to strict liability only when the “willful and intentional act of a third party” is the “sole efficient cause” of the injury.

If Nash's strict liability claim were to fail, she could still recover damages from Herold for negligence –- but only if she was 50 percent or less at fault for her injuries. “We believe comparative negligence will certainly not carry the day,” Willinger says. “... This is not a situation where the chimp attacked because [Nash] had a different hairdo.”

By Matthew Heller
3/23/09