The strategy, if successful, would severely limit potential damages in the case and insulate the chimp owner from personal liability.
The 200-pound chimpanzee named Travis went berserk in February when his owner, Sandra Herold, asked her friend and employee Charla Nash to help lure him back into her house in Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains in stable condition at the Cleveland Clinic.
Nash's family filed a $50 million 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, Robert Golger, says in recent court papers that Nash was working as an employee of Herold's tow truck company, Desire Me Motors, at the time of the attack. He argues that Travis was an integral part of the business, saying his picture was on the wrecker, he appeared at the garage daily and he attended numerous promotional events.
The house where the attack occurred is a business office of the company, Golger said. Nash fed Travis, cleaned his play area and purchased his supplies as an employee, Golger contends.
"It's an unfortunate and tragic accident that happened in the workplace and should be subject to the provisions of the Connecticut workers' compensation statutes," Golger said Wednesday.
Matt Newman, attorney for Nash's family, said he disagrees with the argument but declined further comment.
Under workers' compensation, Nash would have her medical bills paid for by the employer's insurance and would receive partial wage replacement, but would not get any money for pain and suffering that makes up a large part of jury awards in civil cases. Workers typically receive 65 to 75 percent of their wages.
"It's a steady smaller income that would be enormously dwarfed by a successful civil suit," John Mastropietro, chairman of the Connecticut Workers Compensation Commission, said Wednesday.
Paul Slager, an attorney in Stamford not involved in the case, says Golger is making "a pretty creative argument."
To win the argument, Herold will need to prove there was an employer-employee relationship and that Nash's injuries were work-related.
Nathan Shafner, a workers' compensation attorney in Connecticut, called the tactic "a very sellable argument" and thinks it could prevail.
The strategy leaves Nash's side in a quandary because they only have one year to file a workers' compensation claim, Shafner said. If they fail to file that claim and lose the civil case, they could be left with no remedy, he said.
The 14-year-old chimp was shot and killed by police when he tried to attack a police officer responding to the assault on Nash. Test results showed that Travis had the anti-anxiety drug Xanax in his system at the time of the attack, but investigators don't know whether the drug played a role.