Gonzalez v. Clirkat Donuts ( 1995 )

Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 12, 1994, which granted plaintiffs’ motion to set aside the verdict on the issues of comparative fault and damages and directed a new trial on those issues, unanimously affirmed, without costs.

This action for personal injuries arises from the then six-year-old infant plaintiff having been severely scalded, as the result of a collision with an employee carrying a large pot of boiling water from one kitchen to the disposal area in the other, when the child emerged from a bathroom located between two kitchens in defendant restaurant. The Trial Judge properly set aside the jury verdict finding comparative fault attributable to the infant plaintiff as against the weight of the evidence (see, Merl v Adler, 207 AD2d 323), as well as the award of damages. Indeed, in this case, had a cross-appeal been taken, we would find the infant plaintiff to be free of negligence.

Lastly, we agree with the trial court that the total award for pain and suffering was inadequate. Concur—Ellerin, J. P., Rubin, Tom and Mazzarelli, JJ.