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Bushong v. Park

December 04, 2003

THOMAS L. BUSHONG, APPELLANT
v.
BYUNG KYU PARK, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia (CA-1281-00) (Hon. Zoe A. Bush, Trial Judge)

Before Terry, Schwelb, and Reid, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Argued May 20, 2003

Byung Kyu Park was paralyzed from the neck down after his car was hit from behind by a car driven by appellant Bushong. A jury found that appellant's negligent conduct was the proximate cause of Mr. Park's injuries and awarded Mr. Park $1.5 million in damages. Appellant filed a motion for new trial or, in the alternative, for judgment notwithstanding the verdict, but that motion was denied. Before this court appellant maintains that the trial court erred in denying his post-trial motion and in allowing an expert witness to testify, and that the court abused its discretion by limiting the cross-examination of two other witnesses. We find no reversible error, and hence we affirm the judgment in all respects.

I.

During the morning rush hour on August 12, 1997, Kyeong Yi, a non-party in this appeal, was driving southbound on 16th Street, N.W. As she came to a stop behind several cars near the intersection of 16th Street and Whittier Place, her car was rear-ended by Mr. Park's car. As soon as she realized that she had been hit, Ms. Yi looked in her rear view mirror and saw Mr. Park's face, noting that its expression was one of surprise. Ms. Yi then put her car in park, removed her seat belt, and started to get out of her car to assess what had happened. Before she was able to open her car door, however, she felt the im pact of another collision. M s. Yi again looked in her rear view mirror, but this time she was unable to see Mr. Park. According to Ms. Yi, the impact from the second collision was more severe because it caused her car to jolt forward and hit the van that was stopped about six feet ahead of her, which had not happened after the first collision. After the second impact, Ms. Yi alighted from her car and found Mr. Park conscious, but slouched across the passenger seat of his car, apparently immobile.

Mr. Park testified that he accidentally struck the rear of Ms. Yi's car while running errands for his employer, Crystal Press. After colliding with Ms. Yi's car, Mr. Park put his car's gearshift in park and removed the shoulder portion of his seat belt. As he was unfastening the waist portion of the seat belt, *fn1 his car was hit by appellant's car. Mr. Park, like Ms. Yi, described this second collision as more violent than the first one. As a result of the second impact, he testified, he was unable to move and fell over onto the adjacent passenger seat.

Appellant testified that he too was driving to work that morning and came to a stop behind Mr. Park's car at the red light near 16th Street and Whittier Place. Then, appellant said, he saw Mr. Park's car collide with Ms. Yi's, bounce backward, and hit her car a second time. *fn2 After the second collision, according to appellant, Mr. Park's car drifted backward and nudged against his car. Appellant also stated that Mr. Park fell over after the first collision between Mr. Park's car and Ms. Yi's car, not after the second collision.

Amit Reizes testified for the plaintiff, M r. Park, as an expert in accident reconstruction. Mr. Reizes concluded that, given the comparative weight of Mr. Park's and Ms. Yi's cars, it would have been impossible for Mr. Park's car to bounce back after colliding with hers because his car was much heavier. Mr. Reizes also stated that he measured the incline of the road at the scene of the accident and found that it was 1.1 degrees downhill. He then placed a car of the same type as that driven by Mr. Park at the site and found that, when in neutral, the car remained stationary, thus casting doubt on appellant's testimony that Mr. Park's car drifted backwards after the second collision. Mr. Reizes also examined and photographed all the vehicles involved in the accident, and in the course of that examination he found that appellant's front bumper was damaged and that there was paint from appellant's car on the rear bumper of Mr. Park's car. *fn3

Dr. Edward Aulisi, the neurosurgeon who treated Mr. Park later that day, testified that as a result of the accident one of Mr. Park's cervical disks ruptured through the surrounding ligaments and pushed against his spinal cord. The resulting condition, known as flaccid paralysis, left Mr. Park paralyzed from the neck down. Dr. Aulisi testified that, because of this condition, Mr. Park would be unable to move and that in all likelihood he could not hold himself erect. He also said that Mr. Park would have slumped over almost immediately after suffering the injury to his spinal cord. When asked hypothetically "which of the two impacts was the most likely and probable cause for [Mr. Park's] injuries," Dr. Aulisi replied, "I would say the second impact," i.e., the collision between appellant's car and Mr. Park's car. On cross-examination, Dr. Aulisi stated that Mr. Park suffered from a pre-existing condition known as spinal stenosis, which made him more susceptible to spinal injury. *fn4

At the close of all the evidence, appellant moved for a directed verdict, but his motion was denied. His post-trial m otion for a new trial or, alternatively, a judgment n.o.v. was also denied.

II.

Appellant argues that the trial court erred in allowing the case to go to the jury because Mr. Park failed to prove that appellant's conduct was the proximate cause of his injury, and that he was therefore entitled to judgment as a matter of law. *fn5 Specifically, appellant maintains that because the only evidence concerning proximate cause was the testimony of the treating physician, Dr. Aulisi, Mr. Park failed to prove a prima facie case of negligence. *fn6 For the reasons that follow, appellant's argument is without m erit.

"[W]hen there is some evidence from which jurors could find the requisite elements of negligence, or when the case turns on disputed facts and the credibility of witnesses, the case must be submitted to the jury for determination." Lyons v. Barrazotto, 667 A.2d 314, 320 (D.C. 1995) (citation omitted). A case may not be taken away from the jury on motion of the defendant if an impartial juror, considering all the evidence, could reasonably find ...


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