Section: MAIN Page: A1 Date: Wednesday, October 22, 1997
MOM RULED NOT NEGLIGENT IN MALL CASEJOHN CAHER State editor
Caption: JAMES GOOLSBY/TIMES UNION MARIA LA TORRE, mother of Nicholas La Torre, background, talks to the media Tuesday in the Albany office of their attorney, Randall E. Kehoe.When Nicholas La Torre, a retarded Schenectady man, sued the owners of Rotterdam Square Mall alleging he was roughed up by security guards, the shopping center's owners took an unusual pre-emptive legal strike: They sued La Torre's mother. The mall claimed that if La Torre was hurt in the 1992 fracas -- when he was 20 years old -- then it was his mother's fault for not keeping an eye on him. On Tuesday, the state's highest court unanimously rejected that argument and threw out the case against Maria La Torre. It refused to allow Maria La Torre to be roped into a lawsuit that could have resulted in her reimbursing the mall if the mall was found liable for injuring her son. ``We believe that it would be unreasonable to burden parents and guardians generally, especially those charged with special responsibilities for children who happen to suffer developmental disabilities, by exposing them to rebound liability, flowing from a child's or adult's natural deficits or personal qualities,'' Judge Joseph W. Bellacosa wrote for the unanimous court.
The decision means Nicholas La Torre's lawsuit against the mall owner and manager, delayed for years, will finally proceed to trial. And it means Maria La Torre is off the hook. ``I was so happy, I started to cry,'' Maria La Torre said Tuesday, describing reaction to hearing about the decision. ``I am just so happy for my son and all handicapped kids.'' Records show that in 1992 Nicholas La Torre accompanied his mother to Rotterdam Square Mall, hanging out in the arcade area while she shopped. Apparently, there was a disturbance, which resulted in security guards restraining and, according to the lawsuit, injuring Nicholas. Two security guards, unable to verbally calm La Torre, physically restrained the man. La Torre responded with a lawsuit claiming both physical and psychological injuries. ``The issue really came down to whether this kid is dangerous,'' said Albany attorney Randall E. Kehoe, who represents the La Torre family. ``He is not. He is like a baby. He is an adult with the mind of an infant. Certainly, he is not dangerous.'' Kehoe said Nicholas La Torre was excitedly watching the carousel at the mall, as he had done many times before, and began performing a cheerleading routine. He said La Torre did not respond to the guards' demands to stop because he is not capable of responding to verbal commands, and said the mentally disabled man was badly beaten.
But the firm that runs the mall, Genesee Management Inc., and the owner of the shopping center, Wilmorite, say they have had trouble with La Torre in the past. David C. Rowley, an Albany litigator who represents the mall, contends La Torre had a 5-year-old child in a choke hold and security guards used only necessary force to free the child and restrain La Torre. ``This kid had prior incidents at the mall, he had a violent propensity and his mother essentially abandoned him at the mall,'' Rowley said. ``We feel very strongly that the mother was negligent.'' Maria La Torre said she did not ``abandon'' her son. ``He wants to do things on his own. He is not a little kid anymore,'' she said. The mother denied that her son had been in trouble at the mall prior to the incident resulting in this suit. Kehoe noted that La Torre was never charged or arrested for the alleged assault on the 5-year-old. Although the Court of Appeals threw out the mall's lawsuit in this case, it did clarify New York's law on ``negligent parental supervision'' and did make clear that there is such a cause of action -- or basis for a lawsuit -- in this state, but only when a parent is aware that a child is likely to harm someone, is capable of preventing an incident and fails to do so.