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The King Can Do No Wrong, Especially in Connecticut!

y-CHIMP-tmagSFThe tragic case of Charla Nash, the victim of the vicious chimpanzee attack, has apparently come to an end with the denial this week by the Legislature of her last ditch effort to seek permission to sue the State claiming it had failed to protect her when state biologists knew of the ape’s violent propensities.  The concept of sovereign immunity or governmental immunity stems from the ancient feudal, common law concept that the king could do no wrong. Constitutional monarchies were immune from criminal or civil prosecution, essentially because the power of the courts stemmed from the monarchy. That principle has been codified in this country, and particularly in Connecticut. Here one may not sue the state or any governmental body unless there is specific permission granted either by statute or through a petition to the office of the Claims Commissioner, operating as a waiver of that immunity.index

The State has created certain, specific exceptions to its immunity from tort claims. For example, §13a-149 of the General Statutes provides: “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.” The law requires that very specific notice of the defect and the injury must be given in writing within the proscribed time. Further, the defect must be the sole proximate cause of the injury, a concept that defeats most such claims. Similarly, §13a-149 allows suits against the State for certain highway defects. One seeking redress under such statutes is charged with the responsibility to satisfy each technical requirement of the statute in order to succeed.

In those instances where the legislature has not created a specific statutory right to sue it has invested in the office of the Claims Commissioner the discretion to grant permission.  §4-160(a) provides, “[w]hen the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.” The accompanying sections impose, generally, a limitation period for the filing of a petition for permission to sue, within one year after it accrues.  “Claims . . . shall be deemed to accrue on the date when the damage or injury is sustained or discovered on the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.”  The petition must be specific in its details, setting forth the claimed legal injury as well as the basis for the claim of damages.

With the exception of medical malpractice claims against State providers, the Commissioner is invested with unfettered discretion to determine what is “just and equitable.”  Little guidance is given by the statutes to define these terms. In malpractice claims the submission of a good faith report from a similar healthcare provider that malpractice has occurred requires the Commissioner to grant permission to a timely filed claim. A hearing may be held to establish more facts in support of the petition. Like the feudal kings of old, the Commissioner establishes his/her own rules of procedure, “the Commissioner shall not be bound by any law or rule of evidence, except as he may provide by his rules.” There is a limited right of appeal to the Legislature where, “the General Assembly deems it just and equitable and believes the claim to present an issue of law or fact under which the state, were it a private person, could be liable.” Again, there is no established standard to define “just and equitable.”

This ill-defined standard has defeated Nash’s claim. What harm could have come to the State to have allowed her the chance to attempt to prove her contention that the State had failed her? If there truly was no neglect by state employees the claim would fail in court after a full and complete trial. That opportunity would have been, “just and equitable.”  images2 

Rich Meehan