CAESARS RIVERBOAT CASINO, LLC, ET AL. V. 31. CAROLYN RICE V. JACKIE RICEAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
CAESARS RIVERBOAT CASINO, LLC
AND HARRAH'S ENTERTAINMENT, INC .
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-000402-MR
SHELBY CIRCUIT COURT NO . 07-CI-00641
OPINION OF THE COURT BY JUSTICE VENTERS
Appellants, Caesars Riverboat Casino, LLC, an Indiana limited liability
company, and Harrah's Entertainment, Inc ., a Delaware corporation, neither of
which is domiciled in Kentucky, appeal from an opinion of the Court of Appeals
subjecting them to personaljurisdiction in Kentucky in a slip and fall lawsuit
brought by Appellee, Carla Beach, a Kentucky resident. The Court of Appeals
determined that Appellants' contacts with this state satisfied our long-arm
statute, KRS 454 .210, and the federal due process requirements as described
in International Shoe Co. v. Washington, 326 U.S . 310 (1945) and its progeny,
thereby authorizing Kentucky courts to exercise personal jurisdiction over
Appellants in relation to the incident.
Upon review, we conclude that personal jurisdiction over Appellants is
not permitted under KRS 454 .210 because Appellee's claim does not arise from
any of the activities, contacts, or circumstances identified in our long-arm
statute as an essential predicate for Kentucky's exercise of in personam
jurisdiction over a nonresident. Accordingly, we reverse the decision of the
Court of Appeals, and reinstate the order of the Shelby Circuit Court
dismissing the complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants, Caesars Riverboat Casino and Harrah's Entertainment, Inc .,
jointly operate a casino gambling boat docked on the northern shore of the
Ohio River in Elizabeth, Indiana, near Louisville. The boat's facilities include a
casino, hotel, retail stores, and several restaurants. They maintain no office or
business facilities in Kentucky .'
At the time of the incident, Appellee was a resident of Shelby County,
Kentucky . She also was a frequent patron of the casino boat and a holder of a
"Total Rewards Gold Card," a program sponsored by Appellants to promote
player participation and loyalty to the casino and related premises. In order to
encourage Kentucky residents to visit their casino, Appellants engage in
extensive in-state radio, television, and billboard advertisement. They engage
in direct mail advertising, especially to the regular customers on their mailing
1 The parties agree with the factual background as stated in the Court of Appeals's
opinion . We accordingly model our discussion of the relevant facts on the Court of
Appeals's discussion of the factual background, including those facts relating to
Appellants' Kentucky contacts described in the federal district court case Ford v.
RDI/Caesars Riverboat Casino, LLC, 503 F. Supp. 2d 839 (W .D . Ky. 2007), the
accuracy of which is also stipulated by the parties .
list . They also engage in charitable and civic activities in Kentucky, including a
substantial sponsorship of the Kentucky Derby Festival . As a result, and in
combination with their location just across the state line, approximately fifty
percent of Appellants' revenue is derived from Kentucky residents.
Appellee filed a Complaint against Appellants in Shelby Circuit Court
alleging that, "[w]hile in line for the [casino] buffet, suddenly and without
warning, [she] slipped on butter that had. been allowed to remain on the floor
and fell violently to the floor, causing [her] to sustain serious injuries and
damages." Specifically, she alleged that Appellants "as owners and operators of
a retail establishment, negligently: (a) failed to maintain the floor of the eating
establishment in a reasonably safe condition ; (b) allowed butter to come into
contact with and remain on the floor of the eating establishment when
[Appellants] knew, or in the exercise of reasonable care, should have known
that the substance created an unreasonable risk of harm to customers in the
store [sic] ; (c) failed to warn [Appellee] of the danger presented by the presence
of butter on the floor; and (d) failed to otherwise exercise due care with respect
to the matter alleged in this complaint."
Appellants moved to dismiss the claim under CR 12 .02, arguing that the
Shelby Circuit Court lacked personal jurisdiction over them because neither
Caesars nor Harrah's owned or maintained property in Kentucky, nor had they
any employees or agents who were located in or conducted business in
Kentucky, and that Appellee's injury and Appellants' alleged negligence
occurred in Indiana . Appellee argued in response that Appellants had
sufficient contacts with Kentucky for the court to exercise personal jurisdiction
over them as to her cause of action.
The circuit court found that it lacked personal jurisdiction over
Appellants, holding that while there was "a strong argument to be made" that
Appellants purposefully availed themselves of the forum state, Appellee's cause
of action "did not arise from the direct mailings she received, the
advertisements [Appellants] directs toward Kentucky consumers, or any other
contacts between [Appellants] and Kentucky ."
On appeal, the Court of Appeals, relying heavily upon Ford v.
RDI/Caesars Riverboat Casino, LLC, 503 F. Supp. 2d 839 (W .D . Ky. 2007),
determined that the "operative facts underlying [Appellee's] cause of action are
clearly related to Caesars' contact within the state of Kentucky," and that there
"can simply be no dispute that Caesars transacts substantial business in
Kentucky and also maintains continuous and systematic contacts within
Kentucky especially through the promotions, solicitations and inducement of
Kentucky residents to utilize its facilities located a few feet from Kentucky's
border ." Based upon these contacts, the Court of Appeals stated:
We believe these are precisely the type of contacts contemplated
under Kentucky's long-arm statute to trigger personal jurisdiction .
To conclude otherwise would mean that in personam jurisdiction in
Kentucky under KRS 454 .210 would not extend to the outer limits
of the due process clause of the Fifth and Fourteenth Amendments
to the United States Constitution in this case or in any similar
factual situation, but rather be limited to the banks . . . of the Ohio
River. Accordingly, the assertion of personal jurisdiction over
[A]ppellees in this case does not violate constitutional due process
and is otherwise reasonable .
We granted Appellants' motion for discretionary review to examine the
limitations placed by our long-arm statute upon the exercise of personal
jurisdiction over an out-of-state defendant for an out-of-state tort, and to
evaluate the ongoing viability of this Court's statements in prior cases to the
effect that our long-arm statute extends to the limits of, and thereby merges
into, the limits of federal due process. Because the question of whether
Kentucky may exercise jurisdiction over Appellants under our long-arm statute
and federal due process is an issue of law, our review is de novo. Appalachian
Regional Healthcare, Inc. v. Coleman, 239 S .W.3d 49, 53-54 (Ky. 2007) ("The
question of jurisdiction is ordinarily one of law, meaning that the standard of
review to be applied is de novo.") .
KRS 454 .210--LONG-ARM STATUTE
The purpose of Kentucky's long-arm statute, KRS 454 .2 10, "is to permit
Kentucky courts to exercise personal jurisdiction over nonresident defendants
while complying with federal constitutional due process." Cummings v. Pitman,
239 S .W.3d 77, 84 (Ky. 2007) . Because KRS 454 .210(2)(a) 2 is fundamental to
our review in this case, we begin our analysis by setting out the relevant
provisions of the statute in full:
(2) (a) A court may exercise personal jurisdiction overa person who
acts directly or by an agent, as to a claim arising from the person's:
1 . Transacting any business in this Commonwealth;
2 KRS 454 .210(1) defines "person" and is not relevant to any issue undertaken herein.
2 . Contracting to supply services or goods in this Commonwealth ;
3 . Causing tortious injury by an act or omission in this
4 . Causing tortious injury in this Commonwealth by an act or
omission outside this Commonwealth if he regularly does or
solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this Commonwealth, provided
that the tortious injury occurring in this Commonwealth arises out
of the doing or soliciting of business or a persistent course of
conduct or derivation of substantial revenue within the
5. Causing injury in this Commonwealth to any person by breach
of warranty expressly or impliedly made in the sale of goods
outside this Commonwealth when the seller knew such person
would use, consume, or be affected by, the goods in this
Commonwealth, if he also regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this Commonwealth ;
6 . Having an interest in, using, or possessing real property in this
Commonwealth, providing the claim arises from the interest in, use
of, or possession of the real property, provided, however, that such
in personam jurisdiction shall not be imposed on a nonresident
who did not himself voluntarily institute the relationship, and did
not knowingly perform, or fail to perform, the act or acts upon
which jurisdiction is predicated;
7 . Contracting to insure any person, property, or risk located
within this Commonwealth at the time of contracting;
8 . Committing sexual intercourse in this state which intercourse
causes the birth of a child when :
a . The father or mother or both are domiciled in this state ;
b. There is a repeated pattern of intercourse between the
father and mother in this state; or
c. Said intercourse is a tort or a crime in this state; or
9 . Making a telephone solicitation, as defined in KRS 367 .46951,
into the Commonwealth .
(b) When jurisdiction over a person is based solely upon this
section, only a claim arising from acts enumerated in this section
may be asserted against him.
As a point of emphasis, even though the statute identifies nine particular
instances of conduct upon which personal jurisdiction over a nonresident may
be predicated, the first sentence of subsection 2(a) imposes a critical limitation
on the statute's operation: the cause of action must "aris[e] from" the identified
conduct. That point is reinforced by its inclusion in subsection 2(b), limiting
the joinder of any ancillary claim to those also "aris[e] from" acts contained
within the enumerated section of the statute. Thus, personal jurisdiction
cannot be exercised over a non-resident defendant simply because it has
engaged in conduct or activity that fits within one or more subsections of KRS
454 .210(2)(a) . The plaintiff must also show that his claim is one that arises
from the conduct or activities described in the subsection.
In a series of cases addressing KRS 454.2 10, it appears the perception
has developed that our long-arm statute has lost its identity, having been
subsumed and, in effect, overridden by federal due process jurisdictional
standards . This perception is illustrated by discussion of the statute in Wilson
v. Case, 85 S .W.3d 589 (Ky. 2002), wherein this Court stated:
In practice, the precise language of the statute and the application of
its terms are much less important than the simple fact that the
statute exists. Courts have determined that `the long-arm statute
within this jurisdiction allows Kentucky courts to reach to the full
constitutional limits of due process in entertaining jurisdiction over
non-resident defendants.' Mohler v. Dorado Wings, Inc., Ky. App.,
675 S.W.2d 404, 405 (1984) ; Info-Med, Inc. v. Nat'l Healthcare, Inc.,
669 F. Supp. 793 (W.D . Ky. 1987) : . . .
For our purposes here, `the traditional two step approach of testing
jurisdiction against first statutory and then constitutional standards
is therefore collapsed into the single inquiry of whether jurisdiction
offends constitutional due process .' First Nat'l Bank of Louisville v.
Bezema, 569 F. Supp . 818, 819 (S.D . Ind . 1983) (referring to the
Indiana long-arm statute which is similar to Kentucky's and has
likewise been held to extend to the outer limits of due process) .
Id. at 592 (emphasis added) ; see also Cummings, 239 S.W .3d at 84-85 ("We
have interpreted this statute to authorize in personam jurisdiction to reach the
outer limits of the due process clause of the Fifth and Fourteenth Amendments
to the United States Constitution and because of this breadth, our statutory
requirements have merged into the federal due process analysis.") ; Mohler v.
Dorado Wings, Inc., 675 S.W .2d at 405 "It is a well-settled principle of law that
the long-arm statute within this jurisdiction allows Kentucky courts to reach to
the full constitutional limits of due process in entertaining jurisdiction over
non-resident defendants." (citing Poyner v. Enna Werke GMBH, 618 F.2d 1186
(6th Cir. 1980)) ; Davis H. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F . 2d
1176, 1181 (6th Cir. 1975) ("[W]e hold, in light of the factors discussed above,
that the limits of personal jurisdiction conferred by KRS 454 .210(2)(a)(1) are
coextensive with the boundaries of the due process clause .") .
It is fundamental that in determining the meaning of a statute, we must
defer to the language of the statute and are not at liberty to add or subtract
from the legislative enactment or interpret it at variance from the language
used . Johnson v. Branch Banking and Trust Co., 313 S.W .3d 557, 559 (Ky.
2010) . Upon application of this principle, an examination of the long-arm
statute discloses no language indicating that its provisions should, per se, be
construed as coextensive with the limits of federal due process . To the
contrary, the statute sets forth nine specific provisions defining the kinds of
activity that will allow a Kentucky court to exercise personal jurisdiction over a
nonresident defendant. While we believe it fair to say that these provisions
should be liberally construed in favor of long-arm jurisdiction, their limits upon
jurisdiction must be observed as defined. Thus, non-resident defendants
whose activities fall outside the criteria of KRS 454.210 may not be subjected
to long-arm jurisdiction . In addition, as previously noted, even when the
defendant's conduct and activities fall within one of the enumerated categories,
the plaintiff's claim still must "arise" from that conduct or activity before longarm jurisdiction exists . Claims based upon contacts, conduct, and activities
which may not fairly be said to meet one of these explicit categories must be
held to be outside of the reach of the statute, regardless of whether federal due
process might otherwise allow the assertion of in personam jurisdiction .
Moreover, we note that if the intent of the statute were to reach the outer
limits of federal due process, it could easily have been drafted to say precisely
that. In this vein, we note that some jurisdictions have phrased their long-arm
statutes in just this way. See, e.g., Iowa Code § 1 .306 ("Every corporation,
individual, personal representative, partnership or association that shall have
the necessary minimum contact with the state of Iowa shall be subject to the
jurisdiction of the courts of this state, and the courts of this state shall hold
such corporation, individual, personal representative, partnership or
association amenable to suit in Iowa in every case not contrary to the
provisions of the Constitution of the United States.") . Only after the
requirements of KRS 454 .210 have been satisfied can it be said that personal
jurisdiction over a non-resident extends to the outer limits permitted by federal
due process . Federal due process cannot act to expand the reach of
Kentucky's long-arm statute beyond its statutory language.
Wilson and like cases imply that, when examining personal jurisdiction
over a non-resident defendant, one may skip past KRS 454 .210 and proceed
directly to a federal due process analysis. We believe this is a misconception.
The reach of Kentucky's long-arm jurisdiction is a policy choice of the General
Assembly, limited by federal and state constitutional considerations . KRS
454 .210 is the legislature's expression of that policy, and, as such, the statute
operates independently of federal due process analysis. Thus, we clarify that
proper deference to the language of the statute compels that, as an initial step,
review is necessary to determine whether long-arm jurisdiction over a foreign
defendant is permissible under KRS 454 .210 . Banco Ambrosiano, S.P.A. v.
Artoc Bank 8a Trust Ltd., 464 N .E.2d 432, 435 (N.Y. 1984) ("Importantly, in
setting forth certain categories of bases for long-arm jurisdiction, [the New York
long-arm statute] does not go as far as is constitutionally permissible . Thus, a
situation can occur in which the necessary contacts to satisfy due process are
present, but in personam jurisdiction will not be obtained in this State because
the statute does not authorize it.") .
In summary, the proper analysis of long-arm jurisdiction over a nonresident defendant consists of a two-step, process . First, review must proceed
under KRS 454 .210 to determine if the cause of action arises from conduct or
activity of the defendant that fits into one of the statute's enumerated
categories. If not, then in personam jurisdiction may not be exercised. When
that initial step results in a determination that the statute is applicable, a
second step of analysis must be taken to determine if exercising personal
jurisdiction over the non-resident defendant offends his federal due process
rights. To the extent Wilson, Cummings, and like cases hold otherwise, they
APPELLANTS TRANSACTED BUSINESS IN KENTUCKY
AS SET FORTH IN KRS 454 .210(2)(a)(1)
Turning to the present case, we now apply the two-step process to
determine if the Shelby Circuit Court could properly assert personal
jurisdiction over the Appellants . First, we examine whether Appellants'
Kentucky-related activities fall within any of the enumerated provisions as set
forth under KRS 454 .210(2)(a) . Provisions two, and five through nine, may be
quickly eliminated because the types of activities and conduct defined therein
have no application at all to either the subject matter of this litigation or the
types of contacts, conduct, and activities at issue in this case .
Provision three directly addresses the general subject matter of this
litigation, "[c]ausing tortious injury." However, this provision does not apply
because it includes the requirement that the tortious injury have occurred by
an act or omission "in this Commonwealth ." The incident alleged in Appellee's
complaint, as well as the "act or omission" which produced it (i.e ., the butter
on the floor), occurred in Indiana.
Provision four directly implicates the type of conduct engaged in by
Appellants, that is, solicitation of business by media advertising and direct mail
advertising, and the provision is cited by Appellee in support of Kentucky
jurisdiction. However, like provision three, this provision also requires the
tortious injury to have occurred "in this Commonwealth," and is, therefore, also
Having eliminated provisions two though nine of KRS 454.210(2) (a) as
possible grounds for long-arm jurisdiction over Appellants, only KRS
454 .210(2)(a)(1) remains as a possible basis for litigation in this
Commonwealth . This provision permits long-arm jurisdiction against
defendants "[traansacting any business in this Commonwealth." Appellants'
conduct consisting of mass media and billboard advertising in Kentucky, direct
mail advertising to Kentucky residents, preferred customer incentives directed
to Kentucky residents, and substantial civic and charitable activities in the
Commonwealth would certainly qualify as "transacting business" in the state .
Further, fifty percent of Appellants' casino boat revenue is derived from
Kentucky residents. Nevertheless, as noted, personal jurisdiction is authorized
under the statute only if Appellee's claim "arises from" the statutory provision
upon which long-arm jurisdiction is predicated .
APPELLEE'S CLAIM AGAINST APPELLANTS DOES NOT ARISE FROM
APPELLANTS TRANSACTING BUSINESS IN KENTUCKY
We do not disagree with the Court of Appeals's conclusion that
Appellants' activities constitute substantial contacts with Kentucky that
surpass the minimum due process requirements . But, as previously noted, in
order for the long-arm statute to apply, the plaintiffs claim must have "aris[en]
from" the conduct and activities of the defendant described in the applicable
statutory provision .
The phrase "arising from" may reasonably be subject to various
interpretations. In this vein, Appellee alleges that her claim "arose from"
Appellants' activities in the state because, but for those activities attracting her
to patronize the casino boat, she would not have been there that day to slip on
the butter. However, for the reasons discussed below, we believe this view of
the terminology stretches the phrase "arising from" beyond reasonable bounds.
"A fundamental canon of statutory construction is that, unless otherwise
defined, words will be interpreted as taking their ordinary, contemporary,
common meaning." Hall v. Hospitality Resources, Inc., 276 S .W .3d 775, 784
(Ky. 2008) . Here, we discern no intent within the statute to connote a
particular legal or technical meaning to the words "arising from." Accordingly,
we will apply their common, ordinary meaning. As relevant here, the verb "to
arise" means : "2 a: to originate from a source ; b : to come into being . . . ." See
Merriam-Webster Dictionary Online, http :/ / www.merriam-webster.com /
dictionary (last viewed Mar. 16, 2011) . In order for Appellee to prosecute her
claim in Kentucky under KRS 454 .210(2)(a)(1), her cause of action must have
originated from, or came into being, as a result of Appellants' "transacting
business," that is, its advertising and other activities, in Kentucky .
Thus, in evaluating the meaning of KRS 454 .210's use of the phrase, "as
to claims arising from," the wrongful acts of the defendant alleged in the
plaintiffs complaint must originate from the actions or activities that form the
applicable statutory predicate for assertion of long-arm jurisdiction.
Conversely, the statutory foundation for the assertion of long-arm jurisdiction
must be the source of the plaintiffs cause of action . If there is a reasonable
and direct nexus between the wrongful acts alleged in the complaint and the
statutory predicate for long-arm-jurisdiction, then jurisdiction is properly
exercised. Whether such a connection exists will often be self-evident,
especially when the claim is based upon tortious injury that occurs in this
state or upon contracts to supply goods in this state. However, no general rule
can be expressed to take into account the unlimited factual possibilities that
can arise, and the analysis must necessarily be undertaken on a case by case
basis . Trial courts will ultimately have to depend upon a common sense
analysis, giving the benefit of the doubt in favor of jurisdiction.
The wrongful act alleged in Appellee's claim is the failure of Appellants to
keep their premises safe for business invitees by negligently permitting spilled
butter to remain on its flooring and/or failing to warn its customers of the
danger. The statutory predicate proffered for exercising personal jurisdiction
over Appellants is KRS 454 .210(2)(a)(1), "It]ransacting any business in this
Commonwealth," which here consists of Appellants' extensive advertising,
direct mail solicitations, a rewards program, and extensive civic and charitable
activities . A comparison of the wrongful acts underlying Appellee's claim to the
Appellants' conduct and activities in this Commonwealth yields the conclusion
that the wrongful conduct has no relation at all to the business Appellants
transact in this Commonwealth . That is, there is no reasonable and direct
nexus between Appellants' marketing activities and charitable conduct in this
Commonwealth and the negligent acts or omissions in Indiana that produced
The Court of Appeals addresses the point with its conclusion that
Appellants' contacts in Kentucky "clearly contributed to [Appellee's] presence
on Caesars' premises." However, that link between Appellants' activities in
Kentucky and Appellee's slip and fall is far too attenuated to fit within the
definition of "arising from." Appellee's presence at the Indiana Casino did not
cause her injury. Her claim arises from the butter negligently left on the floor.
That Appellee might have not have been on the casino boat premises that day
but for the allure of Appellants' promotional activities in Kentucky does not
alter that fact . Such reasoning is also too subjective, for it bases personal
jurisdiction over the non-resident defendants upon Appellee's subjective reason
for being on the Indiana casino premises.
Simply put, there is no reasonable and direct nexus between the conduct
that caused Appellee's injury and Appellants' business activities in Kentucky .
Consequently, Appellee's cause of action. does not fall within the reach of KRS
454 .210(2)(a)(1) .
Because Appellee's cause of action does not arise from any of the
enumerated provisions contained in the long-arm statute, Kentucky courts lack
personal jurisdiction over Appellants in this matter. We therefore need not
determine whether the exercise of in personam jurisdiction over Appellants
would offend federal due process standards .
For the foregoing reasons, the decision of the Court of Appeals is
reversed, and the order of the Shelby Circuit Court dismissing the Appellee's
claims against the Appellants is hereby reinstated.
All sitting. All concur.
COUNSEL FOR APPELLANTS :
James Louis Fischer, Jr.
Tyson P. Schroeder
Boehl, Stopher 8v Graves, LLP
400 Pearl Street, Elsby East - Suite 204
New Albany, IN 47 150
COUNSEL FOR APPELLEE:
Donald Matthew Kannady
Terry Eugene Goodspeed
Winters 8v Yonker, PSC
304 West Liberty Street, Suite 400
Louisville, KY 40202