Shoppers Food Warehouse v. Moreno

REID, Associate Judge: The main issue presented by this case is whether the trial court had personal jurisdiction over appellant, a nonresident corporation [108] which advertised its grocery stores in the District of Columbia communications media, where appellee, a District resident, alleged she suffered personal injuries in one of appellant’s Maryland stores located near the District’s border. The trial court concluded that it had personal jurisdiction over appellant. We affirm. I. FACTUAL SUMMARY A District of Columbia jury found that appellee Asuncion Moreno slipped and fell in a grocery store owned by appellant Shoppers Food Warehouse MD Corporation and, as a result of Shoppers’ negligence, sustained back and hand injuries. She was awarded damages in the amount of $197,307 for past and future medical expenses, mental anguish, and pain and suffering.1 From the beginning - of Ms. Moreno’s lawsuit, Shoppers argued that the trial court lacked personal jurisdiction over it under D.C.Code § 18-423(a)(4) (1995) (causing tortious injury in the District of Columbia).2 Later, Ms. Moreno claimed that even if jurisdiction were not based on subsection (a)(4), it rested on § 13-423(a)(l) (transacting any business in the District of Columbia). Shoppers maintained that § 13-423(a)(4) did not apply because no tortious injury took place in the District. Furthermore, Shoppers argued that Ms. Moreno failed to show the applicability of § 13^423(a)(l) which, they asserted, must be read in conjunction with § 13-423(b). In its order of June 22, 1994, the trial court agreed with Shoppers that subsection (a)(4) was inapplicable because Ms. Moreno’s injury occurred in Maryland, not the District. However, the trial court concluded that there was personal jurisdiction under subsection (a)(1) for the following reasons: First, it is reasonable to require the Defendant to defend this suit in the District of Columbia.... The Defendant owns numerous stores in Maryland and Virginia, several of which are located within a few miles of the District of Columbia border. ... The Defendant contracts with and advertises in [T]he Washington Post, thereby targeting and soliciting customers in the District of Columbia area- Furthermore, the Defendant has failed to “show that it [is] at a ‘severe disadvantage’ in being required to defend in [the District of Columbia]” ... (quoting Electronic Media Int’l v. Pioneer Comm., Inc., 586 A.2d 1256, 1258 (Me.1991)[) ]. Since the Plaintiff resides in the District, she has a strong interest in litigating this suit here. Second, the Defendant, by contracting with Washington based businesses (i.e., The Washington Post, the District of Columbia Yellow Pages) for advertising purposes, has transacted business in the District of Columbia. Thus, the Defendant purposefully and voluntarily availed itself of the privileges and protections of the District of Columbia.... Finally, the Defendant’s contacts with the forum state were of such quality and nature that it is reasonable for the Defendant to reasonably anticipate being haled [109] into court in the District of Columbia. It is reasonable to conclude that the Defendant derives a substantial portion of its revenue from District of Columbia residents it specifically targets with advertisements that demonstrate how the Defendant’s prices compare favorably with the prices in supermarkets.... Although the trial court did not explicitly mention § 13—423(b) in its June order, it referenced a prior trial court opinion, Daniels v. Knoff, 116 Daily Wash.L.Rptr. 2058, 2057 (Super.Ct.1988), involving an advertisement in the District by a nonresident corporation. That opinion stressed “the foreseeability of injury to District of Columbia plaintiffs as a result of defendant’s actions and the consequences of its actions by soliciting and advertising for business in the District of Columbia.”3 Accordingly, the trial court “conclude[d] that there are enough contacts with the District of Columbia in this case to satisfy the minimum contacts requirement.” Shoppers appeals on the basis that the trial court’s order of June 22,1994, constituted error because: (1) personal jurisdiction over it could not be based upon § 13-423(a)(1) and (b); (2) the trial court erred in denying its motion for a directed verdict; and (3) the trial court erred in permitting the jury to award damages for a permanent injury. We find no reason to disturb the trial court’s judgment. II. ANALYSIS A. Personal Jurisdiction This court has never determined whether newspaper and other advertisements in the District by a nonresident corporation owning a chain of stores, some of which are located in very close proximity to the District’s borders, are sufficient to meet the minimum contacts requirement of the District’s long-arm statute, and whether the advertising constitutes a sufficient nexus for the District’s exercise of jurisdiction over a personal injury lawsuit where the injury took place in a store in a neighboring jurisdiction. Trial courts in the District that have examined this issue have disagreed. Different judges in both the Superior Court of the District of Columbia and the United States District Court for the District of Columbia have expressed different views at different stages of cases involving Shoppers as a defendant.4 We begin with certain fundamental principles that shape our opinion in this matter. First, in Trerotola v. Cotter, 601 A.2d 60 (D.C.1991), we said: “ ‘A court may properly assert personal jurisdiction over a nonresident [1] where a statute authorizes service of process and [2] where such service is consistent with due process.’ ” Id. at 63 (quoting Smith v. Jenkins, 452 A.2d 333, 336 (D.C. 1982) (other citation omitted)). Thus, in accordance with the intent of Congress in enacting D.C.Code § 13-423, we must interpret that statute to “permit the exercise of personal jurisdiction over nonresident defendants to the extent permitted by the due process clause” of the Fifth and Fourteenth Amendments to the Constitution of the United States. Environmental Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 810-11 (D.C.1976) (en banc); see also Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C.1983); Rose v. Silver, 394 A.2d 1368, 1369 (D.C.1978).5 Second, if “ ‘the defendant [110] purposefully avails itself of the privilege of conducting activities within the [District], thus invoking the benefits and protections of its laws,’ ” Smith, supra, 452 A.2d at 336-37 (quoting Hanson v. Henchía, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)),6 and could “ ‘reasonably anticipate being haled into court [in the District],”’ Id. at 336 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)), it “would [not] offend ‘traditional notions of fair play and substantial justice’...” to “[allow] ... suit to be brought in the District of Columbia.” International Union of Elec., Salaried, Mach., and Furniture Workers v. Taylor, 669 A.2d 699, 700 (D.C.1995) (citation omitted). Third, when jurisdiction is alleged based solely upon § 13^423, the nexus requirement set forth in § 13^423(b) must be met, that is to say, the claim for relief must “aris[e] from” one of the jurisdictional acts, such as “transacting business,” enumerated in § 13-423. We now turn to an application of the foregoing principles. We conclude that Shoppers’ advertising in The Washington Post and the Yellow Pages, designed to target and attract District residents to its nearby Maryland and Virginia stores, amounted to transacting business in the District of Columbia under D.C.Code § 13-423(a)(1),7 and that jurisdiction was proper provided Ms. Moreno established a nexus between her injury and Shoppers’ advertisements in the District sufficient to satisfy § 13-423(b). Our case law has not construed § 13-423(b)’s “arising from” requirement restrictively. Most recently, for example, in Trero-tola, supra, we interpreted that nexus to mean only “that the claim raised [must] have a discernible relationship to the ‘business’ transacted in the District.” 601 A.2d at 64 (citations omitted). We went on to explain that this “discernible relationship” is shown if “‘certain minimum contacts’ between the nonresident and the forum” exist. Id. (quoting World-Wide Volkswagen Corp., supra, 444 U.S. at 291, 100 S.Ct. 559). These minimum contacts reflect “ ‘conduct and connection with the forum state ... such that [the nonresident] should reasonably anticipate being haled into court there.’ ” Id. (quoting World-Wide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct. 559). Stated differently, § 13-423(b) bars only “claims ‘unrelated to the acts forming the basis for personal jurisdiction.’” Id. at 63 (quoting Willis v. Willis, 211 U.S.App.D.C. 103, 655 F.2d 1333, 1336 (1981) (other citation omitted)). Section 13-423(b) thus operates as a due process check on the reach or scope of the “transacting business” provision of the long-arm statute. Here, the trial court found that Shoppers “owns numerous stores in Maryland and Virginia, several of which are located within a few miles of the District of Columbia border.” The trial court also determined that Shoppers “contracts with and advertises in [T]he Washington Post [and the Yellow Pages], thereby targeting and soliciting customers in the District of Columbia area.” In doing so, it “voluntarily availed itself of the privileges and protections of the District of Columbia....” Accordingly, the trial court concluded, Shoppers’ “contacts with the [District] were of such quality and nature that it is reasonable for [it] to reasonably anticipate being haled into court in the District of Columbia.” Consistent with this conclusion, we hold that there is no jurisdictional bar to Ms. Moreno’s claim because it has a “discernible relationship,” Trerotola, supra, to Shoppers’ advertising and soliciting of customers in the District of Columbia.8 By advertising and [111] soliciting customers in the District, Shoppers could reasonably anticipate being haled into court to defend against a personal injury suit brought by a District resident. In short, Ms. Moreno met the requirements of § 13-423(b). Our dissenting colleague would require proof that Shoppers’ extensive advertising in the District induced Ms. Moreno personally to shop at its Maryland store. No matter how much an advertiser saturates a locale, in the dissent’s view, a jurisdictional link between advertising and predictable consumer response is not enough to meet § 13-423(b)’s requirement; plaintiff must show that this particular consumer responded to the solicitations, by proof at least, one supposes, that she was a regular reader of The Washington Post. Our decisions support no such restrictive gloss on § 13-423; as cases like Tremió-la make clear, it requires only a practical link, consistent with due process, between the activity conducted in the jurisdiction (retail advertising) and the claim for relief (injury while shopping). Our colleague banishes to distinctly secondary status what for us are primary considerations embodied in § 13-423(b): the predictability that persons (D.C. residents) specifically solicited to shop in the advertiser’s stores will do so, and the expectation reasonably imputed to the advertiser that relief for shopping-related injuries will be sought in the courts where those persons reside. B. The Motion For A Directed Verdict Shoppers challenges the trial court’s denial of its motion for a directed verdict. At the conclusion of Ms. Moreno’s case, Shoppers moved for a directed verdict, contending there was “no evidence in the case that defendant created the condition” leading to Ms. Moreno’s injury. However, Ms. Moreno introduced testimony from Ms. Brenda McCray showing that okra was on the floor of the produce section of the store on the day Ms. Moreno’s injury occurred, and that Ms. McCray had notified a man in an apron, whom she regarded as a store employee, about the okra. He told her “that wasn’t his department.” In addition, Ms. McCray testified that she heard other people talking about the okra on the floor; and warned her mother, with whom she was shopping, to be careful. Ms. McCray saw Ms. Moreno fall and helped her up.9 Ms. Moreno was shaking and crying. Ms. McCray observed “smashed okra” on the floor and on the back of Ms. Moreno’s sweater. She testified it was the same okra about which she had warned the store employee. In denying Shoppers’ motion for a directed verdict, the trial court said, inter alia: [T]he Court is satisfied that there’s enough evidence that a jury could infer that the person with the white apron putting apples on the cart, who said this is not my department is enough for [the jury] to conclude that he was an employee, so I’ll deny that motion. The trial court also denied Shoppers’ renewed motion for a directed verdict at the conclusion of the defense case. We see no basis on which to disturb the trial court’s ruling.10 It is well-settled that [112] the determination of negligence is a factual issue. See Barrett v. Harris, 406 A.2d 1266, 1267 (D.C.1979); American Marietta Co. v. Griffin, 203 A.2d 710, 711 (D.C.1964). “When the case turns on disputed factual issues and credibility determinations, the case is for the jury to decide.” Durphy v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., 698 A.2d 459, 465 (D.C.1997) (citations omitted). Moreover, “[i]n assessing the legal sufficiency of the evidence, neither the appellate court nor the trial court may act as the trier of fact, and each must ‘take care to avoid weighing the evidence, passing on the credibility of the witnesses, or substituting [its] judgment for that of the jury.’ ” District of Columbia v. Perez, 694 A.2d 882, 884 (D.C.1997) (quoting Alliegro v. ACandS, Inc., 691 A.2d 102, 105 (D.C.1997)). On the record before us, we conclude that reasonable jurors could reasonably find, by a preponderance of the evidence, that Shoppers received notice of the okra on the floor, and that Shoppers had time to clean up the okra prior to Ms. Moreno’s fall. Accordingly, we do not disturb the jury’s conclusion as to Shoppers’ negligence. C. Permanent Injury Damages Finally, Shoppers challenges the award to Ms. Moreno of damages for permanent injury. With respect to permanency, the trial court instructed the jury: In this case the plaintiff has offered evidence that as a result of the incident the plaintiff suffered personal injury with residual effects which [exist] to the present time. Although no physician or expert was called to give an opinion as to the expected duration of the injury, from the facts and circumstances in the case and from the nature and duration of the injury, you may, if you believe the evidence, infer that the plaintiff has suffered a permanent injury. This charge was consistent with our case law. The trial court informed Shoppers that Ms. Moreno was entitled to an instruction on permanency, but Shoppers could “argue the weight that the jury should attach to it.” We have said that “when the bad effects of an injury have continued for years, lay[persons] may reasonably infer permanence, even though there is no expert prediction that these injury residuals will continue. Evidence of pain and suffering in existence at the time of the trial has been held sufficient to take the question of permanence to the jury.” American Marietta, supra, 203 A.2d at 712 (citations omitted). Furthermore, where the issue of permanent damages is properly before the jury, as we conclude it was in this case, “the jury ... [is given] broad discretion in awarding damages ... [as long as] its award [is] supported by ‘substantial evidence.’ ” Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 642 (D.C.1995). Shoppers presented no testimony regarding the nature or permanency of Ms. Moreno’s injuries. However, both Ms. Moreno and her orthopedic specialist testified concerning the nature of her injury and her continuing problems. Her orthopedic specialist stated she will continue to experience discomfort. Ms. Moreno testified that she still suffered from the injury at the time of the trial, had to wear a back brace, and had to limit or cease doing certain activities. This testimony from the doctor and Ms. Moreno provided an adequate basis to justify permitting the jury to consider and award future damages for permanent injury. Accordingly, for the foregoing reasons, we affirm the judgment of the trial court. So ordered. Footnotes [1] The breakdown of the jury award was: $6,307.00 for past medical expenses; $44,000 for past pain and suffering; $75,000 for future pain and suffering; $22,000 for past mental anguish; and $50,000 for future mental anguish. [2] In relevant part, D.C.Code § 13-423 states as follows: (a) A District of Columbia Court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's— (1) transacting any business in the District of Columbia; s-s # * sK H* (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him. [3] Daniels also concluded that "defendant’s activities, i.e., the advertising and soliciting for business which presumably has attracted this plaintiff, as well as many other District of Columbia residents to its stores, clearly has caused a consequence in the District, i.e., plaintiff's injuries.” 116 Wash.L.Rptr. at 2057. [4] The differences in the views of the judges are reflected in the orders of June 22, 1994, and December 15, 1995, in this case; in Duffy v. Shoppers Food Warehouse, CA No. 93-2372 (D.D.C.), 1994 WL 151204, at 3 and in the order of July 31, 1995, transferring the matter to the United States District Court for the District of Maryland. [5] We have held previously that "the ‘transacting any business’ provision is coextensive with the due process clause." Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C.1981) (en banc) (citations omitted), cert. denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982); see also Hummel, supra, 458 A.2d at 1190. [6] "[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). [7] Shoppers argues that "there is simply no evidence in the record from which any conclusion could be reached that Shoppers Food Warehouse MD Corp., the defendant, contracted for any of this advertising, or that it did so in the District of Columbia.” However, the trial court could reasonably assume, in the absence of evidence to the contrary and evidence relating to the corporate structure of Shoppers, that the advertisements in the District for Shoppers' grocery stores in Maryland were placed by Shoppers Food Warehouse MD Corp. [8] Shoppers contends that in this case the nexus requirement is not satisfied because there is no inherent relationship between the- duty breached [111] (to provide a safe store) and the "transaction” of advertising in the District of Columbia media. Under this reading of the nexus requirement, Ms. Moreno would have to show something akin to false advertising by Shoppers. Since Tremióla requires only a showing of a "discernible relationship” between the particular claim and the business transacted, Shoppers appears to impose a heavier burden on Ms. Moreno than Trerotola requires. Id. at 63-65. The record reveals extensive and repeated advertising by Shoppers in The Washington Post. In light of such advertising, Ms. Moreno’s case is dissimilar to those in which plaintiffs based their jurisdictional claims on a single advertisement, or sporadic advertising from a travel agency located far from the forum state. See, e.g., Crocker v. Hilton Int'l Barbados, Ltd., 976 F.2d 797, 800 (1st Cir.1992); Witbeck v. Bill Cody’s Ranch Inn, 147 Mich.App. 587, 383 N.W.2d 253 (1985), rev’d, 428 Mich. 659, 411 N.W.2d 439 (1987). [9] Ms. McCray did not know Ms. Moreno. [10] The focus of Shoppers’ argument in the trial court as to the sufficiency of the evidence centered on whether there was notice to a store employee of the okra on the floor. On appeal, Shoppers argues: (1) “there was simply no evidence that [it] or its employees had caused the vegetable matter to be on the floor”; (2) the period of time between when Ms. McCray saw the okra on the floor and Ms. Moreno fell (thir [112] teen to fifteen minutes) “is legally insufficient to establish 'constructive notice’ on the part of Shoppers"; and that there is "no evidentiary basis for finding that [the man in the apron to whom Ms. McCray spoke,] was an employee of Shoppers.... ”