October 23, 1997
Section: Local News
Edition: Fulton Montgomery Schoharie; First
Page: B-01

Court: Mother not negligent in Rotterdam Square incident. Mentally disabled son got into 1992 fracas after being left alone

Michael DeMasi

Gazette Reporter

ALBANY - Maria LaTorre got used to leaving her 20-year-old mentally disabled son alone at the carrousel in Rotterdam Square mall because she said the person who ran the merry-go-round let Nicholas ride for free. Nicholas has the mental capacity of a child, but going on the ride gave Nicholas a sense of independence, and made him happy, LaTorre said. But on a Saturday in May 1992, LaTorre's decision to leave Nicholas at the ride spawned a legal battle whose most recent phase ended Tuesday in the state's highest court, with a victory for the LaTorre family of Schenectady. The Court of Appeals rejected a claim made by the mall's manager, Genesee Management, that LaTorre was negligent when she left Nicholas at the merry-go-round. The decision means the LaTorres will proceed with a $4.8 million lawsuit in state Supreme Court in Schenectady County against Genesee and the mall owners, claiming Nicholas suffered emotional and physical harm at the hands of two security guards, said the family's attorney, Randall E. Kehoe. If Genesee had won at the Court of Appeals, the LaTorres would have had to reimburse mall management for any damages awarded to the family as a result of the $4.8 million suit, Kehoe said. According to court papers, Nicholas got into an altercation with another person at the mall, and had to be physically subdued and handcuffed by two security guards. The family sued in spring 1993, claiming Nicholas was roughed up by the guards and suffered permanent damage to his right eye. "I'm doing this for my son," LaTorre said Wednesday. "I'm doing it for all those kids who are handicapped." Genesee turned the tables on the family in winter 1994, claiming in court that LaTorre was negligent because she left her son at the carrousel unsupervised. Genesee argued the mother knew, or should have known, her son was čunfit and unsafe" to be left alone with other people because of a tendency to have violent physical outbursts. The case reached the Court of Appeals. In its unanimous decision Tuesday, the court said it would be unreasonable to make a parent liable for a child's "natural deficits or personal qualities," especially the parent of a mentally disabled child. Claims that a parent didn't adequately supervise a child would čunwisely expose parents to virtually unlimited liability and undue stress," the court said, citing an earlier ruling. If the mall managers had shown LaTorre knew her son had violent tendencies and was dangerous, there would have been more weight to their argument. But they failed to do so, the court ruled. LaTorre said her son has never gotten violent with anyone. However, the attorney for Genesee, David C. Rowley, said Nicholas had a 4-year-old child in a "choke hold" when mall security responded that day. Because of procedural rules, Genesee didn't have a chance to submit evidence to the Court of Appeals that Nicholas has violent tendencies, Rowley said, but will do so as part ofSee COURT, Page B11 Headline: Court rejects mall's appeal Continued from Page B1 its defense in the $4.8 million lawsuit. Kehoe, the family's attorney, said the choke-hold claim is čundocumented." According to LaTorre, the person who oversaw the merry-go-round usually let Nicholas ride for free, but, unbeknownst to her, there was a different person in charge on May 2, 1992. While she and her husband, Louis, walked elsewhere in the mall, an attendant asked Nicholas for money to ride the merry-go-round, she said. Nicholas can hear, but is only responsive to his mother. He pushed through the gate and got on the ride. Security was called. Kehoe and LaTorre said Nicholas was handcuffed, hit on the head with a security guard's cap and dragged through the mall to the security office. "To me that's very cruel," LaTorre said. "You don't do that to an animal." The metal emblem on the cap injured Nicholas' eye, causing redness that has persisted to this day, Kehoe said. Rowley doesn't dispute Nicholas was handcuffed, but said the other claims aren't true. "I feel confident when the rubber hits the pavement, we'll be able to discredit the LaTorres' version of the facts," Rowley said.

Copyright 2005, 2006 The Daily Gazette Co. All Rights Reserved.

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