author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronda S. TROUDT, a/k/a Ronda Sandsted Defendant-Appellant.
    No. 98CA1287.
    Colorado Court of Appeals, Div. I.
    Dec. 9, 1999.
    Certiorari Denied July 24, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Hugo Teufel, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Ap-pellee.
    David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, Ronda Troudt, appeals the judgment of conviction entered upon the trial court's verdict finding her guilty of unlawful possession of a controlled substance (methamphetamine). On appeal, defendant's sole claim is that the trial court erred in denying her motion to suppress evidence and statements obtained as the result of an allegedly unlawful search and arrest. We disagree and therefore affirm.

Pursuant to a directive issued by the chief judge for the district, all members of the general public are required to pass through a security checkpoint before entering the Jefferson County courthouse. There is a sign posted by the checkpoint which alerts persons entering the building that they will be subject to search. Uniformed guards operate an x-ray machine to examine the contents of parcels. The guards require all members of the public to walk through a magnetometer.

Before allowing persons to proceed through the magnetometer, the guards ask them to remove any metal items from their possession and direct them to place the items in a basket, along with the contents of their pockets. The guards then visually inspect these items.

Defendant went to the courthouse to attend a court proceeding and approached the security checkpoint. She placed several items into the basket and proceeded to the magnetometer. One of the items which defendant surrendered to the guard was a leather cigarette case with two compartments. The guard determined that he needed to open both compartments of the case in order to ascertain whether it contained a knife, razor blade, or other sharp object. The guard testified that he previously had found such objects concealed in similar small areas.

Upon opening the smaller compartment, the guard observed a little packet containing a white powdery substance. The guard alerted a deputy sheriff who was monitoring the security checkpoint. A field test of the white powdery substance revealed that it was methamphetamine and defendant was arrested.

Based on this evidence, the trial court concluded that defendant was subject to a lawful administrative search and denied defendant's motion to suppress evidence of the seized methamphetamine and her post-arrest statements. Defendant was found guilty after an abbreviated bench trial based on stipulated evidence. This appeal followed.

The voluntariness of a consent to search is a question of fact to be determined by the trial court. People v. Magallanes-Aragon, 948 P.2d 528 (Colo.1997). An appellate court gives deference to a trial court's findings of fact in a suppression hearing and such findings will be set aside only if they are not supported by the record. People v. Rodriguez, 924 P.2d 1100 (Colo.App.1996), 945 P.2d 1351 (Colo.1997).

Warrantless searches are presumptively unconstitutional. However, one of the recognized exceptions to the warrant requirement is a regulatory search pursuant to a statutory or administrative program. A warrantless search without probable cause or individualized suspicion is constitutional when conducted pursuant to a regulatory program calculated to further a manifestly important governmental interest under circumstances where the program is reasonably tailored to further the governmental interest and where the intrusion on personal privacy or security is relatively slight in comparison to the interest served by the program. People v. Heimel, 812 P.2d 1177 (Colo.1991).

In People v. Heimel, supra, the supreme court held that airport security sereening procedures for potential passengers were a form of consensual regulatory search in furtherance of a systematic program directed at ensuring the safety of persons and property traveling in air commerce.

Here, the trial court determined that the security checkpoint was necessary to further the manifestly important governmental interest in maintaining courthouse security. Although the precise wording of the sign cannot be gleaned from the record, it is undisputed that a sign was at the security station which advised all individuals entering the building that they would be subject to a search for weapons.

The trial court found that the nature of the security checkpoint was such that defendant must have been aware that she would be subject to a search for weapons, that defendant voluntarily consented to such a search of her cigarette case, and that the minimally intrusive search conducted by the guard did not exeeed the scope of consent granted by defendant. Our review of the record supports the conclusion that a cigarette case could have contained a weapon such as a razor blade or knife.

Accordingly, we uphold the trial court's ruling that the evidence and statements at issue were obtained as the result of a lawful administrative search to which defendant voluntarily consented. See State v. Plante, 134 N.H. 585, 594 A.2d 165 (1991), cert. denied, Plante v. New Hampshire, 502 U.S. 984, 112 S.Ct. 590, 116 L.Ed.2d 614 (1991) (sufficient evidence to support trial court's finding that bailiff's search of a small throat lozenge container found in defendant's purse at a courthouse security checkpoint was a reasonable administrative search for tiny weapons or explosives that could have been concealed in a container of that size; defendant consented to such a search by voluntarily relinquishing her purse to the bailiff).

The judgment is affirmed.

Judge METZGER and Judge VOGT concur.


source: Caselaw Access Project

author: Judge KAPELKE. Judge BRIGGS

license: Public Domain

text:
    Charles J. RAINSBERGER, Plaintiff-Appellee, v. J. KLEIN d/b/a J. Klein Construction, Defendant-Appellant.
    No. 98CA2029.
    Colorado Court of Appeals, Div. IV.
    Dec. 9, 1999.
    Certiorari Denied July 24, 2000.

      Matsunaka & Drake, LL.C., Stanley T. Matsunaka, Jeanne S. Drake, Warren Schaeffer, Loveland, Colorado, for Plaintiff-Appellee.
    Gordon F. Esplin, Fort Collins, Colorado, for Defendant-Appellant.

       Justice KOURLIS would grant as to the following issues:
      What constitutes notice to an adverse party sufficient to require that party to take some action in response to a summons and complaint? Does the filing of an Answer to Interrogatories to Judgment Debtor Pursuant to Rule 69, C.R.C.P. as J. Klein, d/b/a J. Klein Construction constitute judicial estoppel that J. Klein Construction is not separate entity?

   Opinion by

Judge KAPELKE.

Defendant, J. Klein, appeals from the trial court's order denying his C.R.C.P. 60(b)(8) motion challenging a default judgment entered against him in favor of plaintiff, Charles J. Rainsberger. We reverse the post-judgment order, vacate the default judgment, and remand for further proceedings.

The record reveals the following facts. This action was commenced in March 1995, when plaintiff filed a complaint asserting a negligence claim against a defendant designated in the caption as "J. Klein Construetion," which was further described in the body of the complaint as "a business entity." The summons and complaint were personally served on "Jay Klein" on May 8, 1995.

In September 1995, the trial court granted plaintiff's motion to amend the caption of the complaint to designate the name of the defendant as "J. Klein, d/b/a J. Klein Construction." No notice of either the motion or the order was given to the newly-designated individual defendant, and there was no further service of process on him.

No answer has been filed, and defendant did not appear or otherwise defend in the trial court prior to entry of judgment. On plaintiff's motion, a default judgment was eventually entered against defendant "J. Klein, d/b/a J. Klein Construction" on January 12, 1996.

Defendant's first appearance in the trial court was by the filing of his answers to C.R.C.P. 69 interrogatories, in which he denied using "any business or trade names." Later, on June 12, 1998, defendant filed a motion pursuant to C.R.C.P. 60(b)(8) to set aside the default judgment.

The trial court denied the motion, ruling -that the judgment against defendant was not void. In so ruling, the trial court found that defendant was "well aware of the suit against him individually" when he was served with the summons and complaint, and was made aware that the judgment was against him individually when he received and answered the interrogatories.

Defendant contends that the judgment is void because he was not properly served with process as to any claims against him individually and the trial court thus lacked personal jurisdiction over him at the time the judgment was entered. We agree.

C.R.CP. 60(b)(8) provides for relief from a final judgment if the judgment being challenged is "void." See Mason-Jares, Ltd. v. Peterson, 939 P.2d 522 (Colo.App.1997). Further, a default judgment entered when the trial court lacks personal jurisdiction over a defendant because of invalid service of process is void and must be vacated upon request. See Weaver Construction Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976); United Bank v. Buchanan, 836 P.2d 473 (Colo.App.1992)

Here, in granting plaintiffs motion to "amend the caption," the trial court essentially allowed plaintiff to add "J. Klein" as an individual party defendant. However, notice of this change was not given to defendant prior to the entry of judgment against him individually. We also agree with defendant that the original service of process on him was ineffective as to any claims purporting to be against him as an individual defendant.

Contrary to plaintiff's argument, defendant's knowledge of any claims asserted against the allegedly related business entity is irrelevant, and the inquiry must focus on the summons and complaint actually served, rather than on the relationship between the parties. The purpose of a pleading and the requirement for service of process are to give the adverse party notice of the commencement of the action and the claims against it so as to provide it with the opportunity to appear and defend. See Bush v. Winker, 907 P.2d 79 (Colo.1995).

The summons and complaint actually served here did not name "J. Klein" as an individual party defendant, nor was there any indication given that his receipt of service of process on behalf of "J. Klein Construction" also somehow constituted service of process concerning any claims against "J. Klein" individually. Thus, we conclude that the original complaint and the original service of process were insufficient to put defendant on notice of any claims against him individually as a party defendant. See Bush v. Winker, supra.

Because defendant was not served with process after the "caption change," we further conclude that the default judgment against him individually is void for lack of personal jurisdiction over him. See Weaver Construction Co. v. District Court, supra; United Bank v. Buchanan, supra; see also Roberts v. Novinger, 815 P.2d 996 (Colo.App.1991) (no valid default judgment entered on amended complaint where defendants were neither notified of authorization for amendment nor served with amended complaint).

Courts in other jurisdictions have held that an individual sued only under his or her trade name has nevertheless received sufficient notice to support the court's acquisition of personal jurisdiction. See, e.g., Hughes v. Cox, 601 So.2d 465 (Ala.1992). In that case, the court concluded that: "[olne doing business in a trade name has fair notice that a complaint alleging a cause of action arising out of his business may lead to personal liability." Hughes v. Cox, supra, 601 So.2d at 471.

Here, however, the pleadings served on defendant prior to entry of the default judgment did not allege that he was being sued in an individual capacity. The summons and complaint named as the sole defendant "J. Klein Construction," which the complaint identifies as a "business entity." Significantly, the record does not demonstrate that defendant had in fact conducted business under the trade name "J. Klein Construction." Under these cireumstances, we view the Hughes case and similar decisions involving parties conducting business under trade names as distinguishable from the situation presented here.

Next, we reject plaintiff's argument that defendant's post-judgment court appearances served to validate the void default judgment by curing any deficiency in the trial court's personal jurisdiction over him. Although defendant has now made an appearance in this action and is subject to the jurisdiction of the court from the date he did so, his post-judgment appearance is not retroactive and does not serve to validate the void judgment. See Weaver Construction Co. v. District Court, supra.

We also reject plaintiff's argument that defendant's CRCP. 60(b)@8) motion was untimely. To the contrary, a void judgment may be challenged at any time pursuant to C.R.C.P. 60(b)(8), and must be vacated upon request. See United Bank v. Buchanan, supra.

We decline to address plaintiff's contentions regarding defendant's alleged bank-ruptey filing, because we find no basis in the record to consider such matters. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991) (statements in a party's brief cannot supply that which must be contained in the record).

In light of our disposition of the issues, we need not address the remaining contentions of the parties concerning the validity of the default judgment, and we necessarily reject plaintiff's contention that this appeal is frivolous and groundless.

Accordingly, the order denying defendant's C.R.C.P. 60(b)(8) motion is reversed, the default judgment is vacated, and the cause is remanded to the trial court with directions to allow defendant to file an answer to the complaint and for further proceedings.

Judge RULAND concurs.

Judge BRIGGS dissents.

Judge BRIGGS

dissenting.

This case does not raise the question of whether a judgment that identifies the defendant as an existing business entity that is separate from an individual can be enforced as a judgment against that individual. Rather, the issue before us is more complex: When a judgment is entered against an individual, is that individual entitled to avoid enforcement of the judgment, by having the judgment set aside, in the following cireum-stances: 1) the individual is personally served with a summons and complaint; 2) while the caption mistakenly names a business entity rather than the individual as the defendant, adequate notice is provided to alert the individual that the subject of the cause of action may be his own business; 3) the individual operates his business, not as a separate business entity, but as a sole proprietorship; 4) the allegations of the complaint further describe the individual's own business in sufficient detail that he could not reasonably be misled into believing the suit was against any business other than his own; 5) the individual could not reasonably conclude from reading the summons and complaint that he otherwise has a basis for avoiding personal liability for the alleged negligent acts of his own employee; 6) the complaint is amended before judgment is entered to name the individual as the defendant; and 7) while the individual is not given notice of the amendment, the individual already had sufficient notice that he was the subject of the cause of action. Because I disagree with the majority's answer to that question, I respectfully dissent.

Defendant, J. Klein, was personally served with a summons and complaint asserting a claim for liability against "J. Klein Construction," based on the negligence of an employee. Defendant did nothing to respond to the complaint or otherwise to protect his interests.

Several months later, plaintiff filed a motion to amend the caption of the complaint by designating the name of the defendant as "J. Klein, d/b/a J. Klein Construction." The trial court granted the motion.

On plaintiff's motion, the trial court next entered a default against "J. Klein, d/b/a J. Klein Construction." After a hearing, the trial court entered a default judgment for damages, once again against "J. Klein, d/b/a J. Klein Construction."

Defendant's first appearance in the trial court occurred upon the filing of his answers to C.R.C.P. 69 interrogatories that had been served on him. The title of the interrogatories stated, "Interrogatories to Judgment Debtor Pursuant To C.R.C.P. Rule 69." The defendant was listed as "J. Klein, d/b/a/ J. Klein Construction, Defendant."

Defendant answered the interrogatories. Above a signature block that stated, "J. Klein, d/b/a J. Klein Construction," he signed, "Jay Klein." Defendant did not at that time seek to set aside, or otherwise to contest, any judgment to the extent it had been entered against him individually. It was only several months later, after plaintiff had filed a judgment lien on property owned by defendant, that he filed a motion under C.R.C.P. 60(b)(8) challenging the default judgment.

A complaint must name a party plaintiff and a party defendant in order to establish subject matter jurisdiction. Thus, there must be some ascertainable "persons," natural or artificial, to whom judgments may be awarded and against whom they may be enforced. Furthermore, our rules of civil procedure make no exception to the requirement that defendants must be named if their names are known. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).

Nevertheless, our rules of civil procedure, like the federal rules, establish a liberal system of notice pleading. Moody v. Ungerer, 885 P.2d 200 (Colo.1994); Fluid Technology, Inc. v. CVJ Axles, Inc., 964 P.2d 614 (Colo.App.1998); see also Kluge v. Wilson, 167 Colo. 526, 448 P.2d 786 (1968). Under that system, the purpose of the requirement for serving process and a copy of the complaint upon a defendant is to give the defendant notice of the commencement of the proceedings in order to enable that party to attend and prepare a defense. Bush v. Winker, 907 P.2d 79 (Colo.1995); see also J & K Construction Co. v. Molton, 154 Colo. 214, 390 P.2d 68 (1964).

The issue of what constitutes notice of the identity of an adverse party sufficient to require that party take some action in response to a summons and complaint has not been addressed in Colorado, at least not in circumstances such as those presented here. However, the issue was addressed in similar circumstances in Hughes v. Cox, 601 So.2d 465 (Ala.1992).

The plaintiffs in Hughes filed a fraud action naming as defendants, among others, "Hughes Realty of Clanton, Alabama." Gearlene Hughes, who operated a sole proprietorship and had acted as the selling agent on the transaction described in the complaint, was served with the summons and complaint but was not separately named as a defendant.

When no answer was filed, the plaintiffs filed for and obtained a default judgment against Hughes Realty. Before a hearing on the damages to be awarded, the plaintiffs amended their complaint and substituted as the defendant, "Gearlene Hughes, d/b/a Hughes Realty or Hughes Realty of Clan-ton." Hughes was not notified of the motion and order and was not served with a copy of the amended complaint. The trial court nevertheless entered a judgment against her individually for substantial damages.

Several months later, Hughes moved to set aside the default judgment against her. She argued that: 1) because the original summons and complaint had named only "Hughes Realty of Clanton" as the defendant, without indicating whether it was a sole proprietorship, a partnership, or a corporation, she had no notice of being included as a defendant in the action; 2) the court therefore lacked personal jurisdiction over her; and 3) the judgment was therefore void and could be set aside at any time. The trial court denied the motion.

In affirming the trial court's ruling on appeal, the Alabama Supreme Court determined that the first question to be resolved was whether the amended complaint in fact merely referred to the same party by a different name or instead introduced a new party to the action. The court concluded there was "no question" as to the identify of Hughes as the defendant because, among other things, she operated the business as a sole proprietorship, she owned all the assets of the business, and she was solely liable for all its debts. Thus, the amendment to the complaint "did not affect the identify of the party sought to be described, but only gave accuracy and certainty to it." Hughes v. Cox, supra, 601 So.2d. at 470.

The court next addressed whether the original summons and complaint had given Hughes sufficient notice of the action to have required her to take some artion in response. It concluded that, because Hughes had personally accepted the original service, because she was the owner as sole proprietor of the business, and because the complaint de-seribed the nature of the claim and the relief requested, the notice was sufficient.

In so concluding, the court in Hughes reasoned that it was the duty of a party desiring not to participate in a judicial proceeding to retain counsel timely or otherwise exercise reasonable diligence to avoid an undesirable judgment. In particular, the sole proprietor of a business may not choose simply to ignore personal service of process with a complaint that sufficiently identifies that sole proprietor's business as the defendant. Cf. Bush v. Winker, supra; Guynn v. State Farm Mutual Auto Insurance Co., 725 P.2d 1162 (Colo.App.1986).

In my view, the Hughes analysis is persuasive. I recognize that the party in Hughes identified in the original complaint as the defendant was the trade name of the sole proprietor. In contrast, defendant in this case denied in his interrogatory responses doing business under any trade name. However, that distinction does not require a different result, at least not in the circumstances presented here. '

Even if defendant may not have been doing business in the precise name of the business identified in the caption of the original complaint, the name was sufficient to put defendant on notice that his business, which he operated as a sole proprietorship, was probably the subject of the cause of action. Further, in the body of the original complaint served on defendant, plaintiff alleged that the named defendant was doing business in Lar-imer county; that the defendant was the "general contractor of the project," which was described by specific location; that the defendant had a duty to keep the property in a safe condition; that as a result of the negligent omission or commission of an employee, acting in the course and scope of employment and under the direct and exclusive control of the defendant, plaintiff fell in an uncovered manhole.

Thus, the complaint described defendant's own business in sufficient detail that defendant could not have been reasonably misled into believing the suit was against a different general contractor. Nor could defendant have reasonably concluded from reading the complaint that, as a sole proprietor, he otherwise had a basis for avoiding personal liability for the acts described. Nor did defendant assert in his motion to set aside the judgment that he in fact had been so misled by the summous and complaint. In these circumstances, defendant received adequate notice that he was the subject of the cause of action.

Because defendant received adequate notice, he was required to exercise reasonable diligence to avoid the entry of an undesirable judgment against him. Because he failed to do so, he was not entitled to have the judgment against him set aside. See Hughes v. Cox, supra; cf. Janove v. Bacon, 6 Ill.2d 245, 128 N.E.2d 706, 709 (1955) ("It is of course true that a person who is not served need not appear in an action. But where a summons is served upon him personally, and the circumstances are such as to indicate that he is the person intended to be sued, then he is subject to the judgment, even though the process and the judgment do not refer to him by his correct name.").

The holding in Bush v. Winker, supra, does not require a different result. In that case, the plaintiff sought to enforce a judgment against an individual served with a complaint that named the individual individually and as a general partner of a partnership. However, the partnership, a separate business entity, was not identified as a party anywhere in the summons or complaint. The supreme court concluded that the complaint did not provide adequate notice that the partnership was the subject of the cause of action. As a result, the trial court had not obtained jurisdiction over the partnership, and the judgment against it was void.

In contrast, defendant in this case did not operate his business as a separate business entity, and he received sufficient notice that he was the subject of plaintiff's cause of action. He nevertheless chose to do nothing. In these circumstances, defendant is not entitled to have the judgment against him set aside as void.

I therefore respectfully dissent.


author: Judge MARQUEZ.

text:
    Betty SALAZAR, Plaintiff-Appellee and Cross-Appellant, v. AMERICAN STERILIZER COMPANY, Defendant-Appellant and Cross-Appellee.
    No. 98CA1630.
    Colorado Court of Appeals, Div. II.
    March 16, 2000.
    As Modified on Denial of Rehearing June 8, 2000.

      Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Buchanan, Jurdem & Zu-lauf, P.C., Karen M. Zulauf, Jessica L. West, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
    Rossi, Cox, Kiker & Inderwish, P.C., Mare Kaplan, Aurora, Colorado; MeceDermott & Hansen, William James Hansen, Denver, Colorado; Bragg & Baker, P.C., John Thomas Baker, Denver, Colorado, for Amicus Cu-riage Colorado Trial Lawyers Association.
    Mark S. Mandell, Ned Miltenberg, Washington, D.C., for Amicus Curiae Association of Trial Lawyers of America and the Colorado Trial Lawyers Association.
    Zarlengo, Mott, Zarlengo & Winbourn, P.C., Reed L. Winbourn, Denver, Colorado; Skadden, Arps, Slate, Meagher & Flom LLP, Bert L. Wolff, Steven F. Napolitano, New York, New York, for Defendant-Appellant and Cross-Appellee.
    Campbell, Latiolais & Ruebel, P.C., Jeffrey Clay Ruebel, Denver, Colorado, for Ami-cus Curiae Colorado Defense Lawyers Asso-clation.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge MARQUEZ.

In this toxic tort action, defendant, American Sterilizer Co., appeals the judgments entered on jury verdicts finding (1) that plaintiff, Betty Salazar, filed her claims within the two-year statute of limitations set forth in § 13-80-106, C.R.S.1999, and (2) that defendant was negligent, and awarding plaintiff damages. Plaintiff cross-appeals complaining of the trial court's ruling that Colorado's non-party statute, § 18-21-111.5, C.R.S.1999, is constitutional and the court's denial of recovery for certain costs. We affirm.

Beginning in 1977, plaintiff worked as a central sterilizing technician at a hospital in Montrose. In the fall of 1988, the hospital purchased and placed into service a "Porta gas" ethylene oxide sterilizer manufactured by defendant. The hospital used the Porta-gas sterilizer until 1989 when it purchased from defendant a new ethylene oxide sterilizer called the "Eagle."

When operating the sterilizers, plaintiff was exposed to ethylene oxide, a toxic chemical that causes neurocognitive defects and nerve damage. She was later diagnosed as having peripheral neuropathy.

On March 31, 1995, plaintiff, pro se, filed a verified complaint against defendant and others, asserting, inter alia, that the Porta-gas sterilizer was placed into service in 1983 and that she sterilized surgical instruments approximately five days per week. She also alleged that as a result of defendant's negligence, she had incurred personal injuries allegedly caused by exposure to ethylene oxide from use of the Portagas sterilizer. On July 12, 1995, plaintiff amended her complaint to allege that the Eagle sterilizer was placed into service in September 1989, and that she sterilized surgical instruments from the time the Portagas sterilizer was placed into service until April 1998.

Defendant asserted that the statute of limitations barred the claim. A separate trial was held on that issue. Following a verdict in plaintiff's favor on that issue, a second trial was held on liability for negligence and damages. The jury returned a verdict in favor of plaintiff and awarded her $889,218 for non-economic losses; $565,855 for economic losses; and $1,356,852 for physical impairment. The jury found that defendant was 66 percent responsible for plaintiff's injuries, damages, and losses. The jury also found that two non-parties were responsible for the remaining damages: the hospital was 32 percent responsible and a person who had inspected the sterilizers was 2 percent responsible. The trial court then entered judgment against defendant for 66 percent of the total damages, or $1,492,537.20.

Although defendant filed post-trial motions for judgment notwithstanding the verdict, a new trial, or remittitur, the trial court's order denying its motions was not issued until the 60-day period provided by C.R.C.P. 59(J) had expired. However, plaintiff consented to a remittitur, and the judgment was subsequently reduced to $1,093,422 plus prejudgment interest of $916,426 and costs of $114,-005.88.

I.

Defendant first contends that the trial court committed reversible error in denying judgment in its favor based on the statute of limitations. We are not persuaded.

As a preliminary matter, to the extent defendant asserts that the court erred in denying its motion for summary judgment based on the statute of limitations, such an order is not appealable. See Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo.1996).

A.

As to the applicable standard for determining when the statute of limitations begins to run, we reject defendant's contention that inquiry notice triggers the discovery rule.

Defendant concedes that § 13-80-106 governs. In relevant part, that statute provides that all actions brought against a manufacturer or seller of a product shall be brought within two years after the claim for relief arises.

In Colorado, the general discovery rule provides that a cause of action for injury to a person shall accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence. Section 13-80-108(1), C.R.S. 1999. A claim for relief does not acerue until the plaintiff knows, or should know, in the exercise of reasonable diligence, all material facts essential to show the elements of that cause of action. Miller v. Armstrong World Industries, Inc., 817 P.2d 111 (Colo.1991).

Here, the parties agree that the statute of limitations begins to run when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. See Miller v. Armstrong World Industries, Inc., supra; Mastro v. Brodie, 682 P.2d 1162 (Colo.1984).

Nevertheless, defendant relies on cases from other jurisdictions to support its position that inquiry notice triggers the discovery rule. See Estate of Montag v. T H Agriculture & Nutrition Co., 509 N.W.2d 469 (Iowa 1993) (inquiry notice); Martinez v. Showa Denko, K.K., 125 N.M. 615, 964 P.2d 176 (N.M.App.1998) (information known by plaintiff concerning a "possible connection" between her condition and the product, sufficient to activate commencement of statute of limitations); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978) (the statute of limitations begins to run when a plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists).

However, suspicion of a possible connection does not necessarily put a reasonable person on notice of the nature, extent, and cause of an injury. The focus is on plaintiff's knowledge of facts rather than the discovery of applicable legal theories. Miller v. Armstrong World Industries, Inc., supra; Winkler v. Rocky Mountain Conference of United Methodist Church, 923 P.2d 152 (Colo.App.1995).

In Financial Associates, Ltd. v. G.E. Johnson Construction Co., 723 P.2d 135 (Colo.1986), the supreme court held that even if the plaintiff knew of its injury and might have been aware of the possible causes of its injury, the information contained in investigative reports did not so clearly point to the existence of a defect for the court to hold, as a matter of law, that plaintiff should have discovered the defect that caused the injury.

Consequently, we reject defendant's contention that inquiry notice triggers the discovery rule.

B.

Defendant nevertheless contends that, by January 1998, plaintiff knew of her claim, and because this was more than two years before she filed suit, the trial court erred in denying defendant judgment as a matter of law. We conclude that this issue was properly submitted to the jury.

While the statute of limitations question was raised in defendant's motion for a directed verdict, such a motion should be granted only in the clearest of cases. A court considering such a motion must view the evidence and all reasonable inferences arising legitimately from it in the light most favorable to the non-movant. Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681 (Colo.1998).

The time when a plaintiff discovered, or through the use of reasonable diligence should have discovered, the negligent conduct is normally a question of fact that must be resolved by the trier of fact. Mastro v. Brodie, supra; Morris v. Geer, 720 P.2d 994 (Colo.App.1986). However, if the undisputed facts clearly show that a plaintiff discovered, or reasonably should have discovered, the negligent conduct as of a particular date, the issue may be decided as a matter of law. Winkler v. Rocky Mountain Conference of United Methodist Church, supra.

Here, it is undisputed that plaintiff was exposed to ethylene oxide between 1983 and 1993, and that she developed polyneuropathy. In the trial on the statute of limitations issue, a number of exhibits were introduced into evidence. In a letter dated January 13, 1998, plaintiff's neurologists agreed that it was possible that ethylene oxide caused her poly-neuropathy, but recommended other testing because there were also other possible causes. The neurologists also opined that, if ethylene oxide was the cause, decreasing plaintiff's exposure to ethylene oxide should also return her symptoms to normal.

In February of 1993, plaintiffs neurologists noted in their report that if her poly-neuropathy resulted from chemical exposure, her symptoms would dissipate over the next 12 to 18 months. Because of plaintiff's differential diagnosis, however, the neurologists wrote that they were "not sure why she has this small neuropathy" and that time would help them "understand her neuropathy better." One of the neurologists confirmed these statements at trial.

In March of 1998, the orthopedic surgeon, in response to a request for a narrative report outlining the cause and etiology of plaintiff's symptoms, informed the insurance carrier by letter that "[wle still do not have hard evidence to identify the cause and etiology of her symptoms. Her diagnosis is peripheral polyneuropathy. We simply do not know the cause yet." - ' f

The orthopedic surgeon then wrote the neurologists inquiring into the cause of plaintiff's condition. On April 2, 1998, a neurologist responded to the orthopedic surgeon stating that:

The conclusion I came to was that she could have had a polyneuropathy based upon her ethylene oxide exposure. However, these tend to resolve after exposure in approximately 12-24 months.... I think time may help us understand her neuropathy better....

After receiving the neurologist's letter, the orthopedic surgeon wrote a second letter on April 26, 1993, to the hospital's insurance carrier. There, the surgeon stated that "it seems to be clearly stated that it is [the neurologist's] opinion that [plaintiffs] poly-neuropathy resulted from ethylene oxide exposure."

However, the April 2, 1998, letter stated that plaintiff "could" have had a polyneuropa-thy. Further, the neurologist who wrote the April 2, 1998 letter testified at trial that he did not intend to express to the orthopedist that he believed that plaintiff's injury was caused by ethylene oxide.

A toxicologist testified that he first saw plaintiff in August of 1993. Sometime thereafter, the toxicologist requested additional documentation from the hospital and formed an opinion that she had an ethylene oxide-induced toxic peripheral neuropathy. Plaintiff testified that on September 2, 1993, this toxicologist informed her that her condition was caused by ethylene oxide and that she was relieved that somebody had finally found an answer to what was wrong with her.

Viewing the evidence in the light most favorable to plaintiff, we conclude that there was evidence to support a finding that plaintiff proceeded with reasonable diligence and that she neither knew nor should have known until September 1998 the nature, extent, and cause of her symptoms. Thus, we conclude that the motion for directed verdict was properly denied.

C.

Defendant next contends that plaintiff's judicial admissions also mandated judgment in its favor. We disagree.

A judicial admission is a formal, deliberate declaration that a party or his or her attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute. Kempter v. Hurd, 713 P.2d 1274 (Colo.1986).

Judicial admissions are binding on the party who makes them, are evidence against such party, and may furnish the basis for a verdict. However, the alleged admission must also be unequivocal. Anderson v. Watson, 929 P.2d 6 (Colo.App.1996), aff'd on other grounds, 953 P.2d 1284 (Colo.1998).

1.

Defendant asserts that plaintiff's original complaint alleged that she knew of her claim in April 1998. We do not agree with defendant that the trial court improperly disregarded this allegation.

Plaintiff, pro se, filed her original complaint which alleged in pertinent part:

On April 26, 1993, [the orthopedic surgeon] wrote a letter to Memorial's Worker's Compensation carrier, stating that Plaintiff's symptoms were caused by polyneuro-pathy brought about by exposure to ethylene oxide.

However, plaintiff's subsequent amended complaints did not contain this allegation.

Further, we do not view this statement as a binding judicial admission that plaintiff knew of her claim in April 1998 for purposes of a motion for directed verdict.

As the preceding discussion indicates, the evidence must be viewed in the light most favorable to plaintiff. Plaintiff's allegation is not an unequivocal statement that she knew the nature and extent of her injury, and that the injury was caused by the wrongful conduct of others. See Miller v. Armstrong World Industries, Inc., supra; Mastro v. Brodie, supra. Further there is no indication that the allegation was made for the purpose of dispensing with proof on this issue. See Kempter v. Hurd, supra.

Therefore, the trial court did not err in determining that plaintiff's allegation did not constitute a binding judicial admission.

2.

We also reject defendant's contention that plaintiff made a judicial admission during closing argument.

At defendant's request, the jury was instructed regarding a presumption. During closing argument, plaintiffs attorney repeated the instruction:

If you find that Ms. Salazar swore that the facts in her original complaint were true and correct to the best of her information, knowledge, and belief, then the law presumes that she read and understood the language. You must consider this presumption, together with all the other evidence in the case, in determining whether or not the facts in her complaint are true.

Plaintiff's attorney then commented: "And I think that's a true statement: To the best of her knowledge, information, and belief, those facts were true."

Outside the presence of the jury, defendant argued that these statements constituted a judicial admission. The trial court denied defendant's motion, reasoning that the emphasis of plaintiff's argument was based upon her best knowledge, information, and belief,

While we do not rule on the propriety of the court's instruction regarding a presumption, the record supports the trial court's determination that plaintiffs assertion was not a judicial admission, but rather, an argument that her certification was true to the best of her knowledge, information, and belief.

Thus, we perceive no abuse of discretion.

IL.

Defendant further contends that the court's opening charge to the jury, its instruction at the end of trial, and plaintiffs ensuing argument to the jury concerning the legal effect of the jury's findings were highly prejudicial and, therefore, constitute reversible error. We disagree.

Here, in the trial on the statute of limitations, defendant moved in limine to bar reference to the legal effect that the jury's findings of fact would have. The trial court denied the motion and, in its opening charge, informed the jury that it was going to decide when plaintiff knew or should have known of the cause of her illness. It also stated that:

The significance of that question is that if the claim is not brought within two years of when the plaintiff knew or should have known of that injury and the cause of the injury, then her claim is barred and she cannot prevail on her claim. That's the question that ultimately this jury's going to decide.

At the end of the trial, the jury was also instructed that defendant asserts "that the Plaintiff's claims were not brought within two years of when Plaintiff knew or reasonably should have known that she had been injured and the cause of that injury. If the Plaintiff's claims were not filed within that two-year period, then this defeats Plaintiff's claims."

During closing argument, plaintiff's counsel reminded the jury that the decision whether plaintiff's case proceeds "is your decision."

Defendant does not contend that the court's instructions misstated the law. To the extent that defendant is asserting that such statements invoked sympathy, the jury was instructed that it must not be influenced by sympathy or prejudice for or against any party in the case. Defendant has failed to provide any indication that the jury disregarded this instruction. See People v. Dunlap, 975 P.2d 723 (Colo.1999).

We also reject defendant's contention that Avery v. Wadlington, 186 Colo. 158, 526 P.2d 295 (1974), and Simpson v. Anderson, 186 Colo. 163, 526 P.2d 298 (1974), compel a different conclusion. In both cases, the supreme court held that it was reversible error to inform the jury as to the operation of the comparative negligence statute or the effect of its percentage findings on the ultimate outcome.

Later, however, the General Assembly amended the comparative negligence statute to require that juries be instructed on the ultimate effect of their findings. See Colo. Sess. Laws 1975, ch. 152, § 13-21-111(4), at 570; Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883 (Colo.1983). Although the General Assembly repealed § 18-21-111(4), see Colo. Sess. Laws 1986, ch. 107, § 18-21-111(4), at 679, it readopted a similar provision in 1987. See § 18-21-111.5(5), C.R.S. 1999.

Thus, while both the decisions relied upon by defendants and the statute later adopted by the General Assembly are not directly applicable to the issue presented here, that statute reflects a general public policy to disclose to juries the effect that their deliberative decisions will have.

Consequently, we perceive no error in the court's instructions.

IIL

Asserting that plaintiff's experts had no valid or reliable exposure data and that the causation opinions of plaintiff's experts are not generally accepted, defendant next contends that it was error for the trial court to admit the testimony of plaintiff's experts on causation. We reject these contentions.

CRE 702 provides that a qualified expert may testify in the form of an opinion if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.

CRE 702 calls for a two-tiered analysis. A court must first determine whether the proffered expert testimony will be helpful to a fact finder. If so, the court must then decide whether the witness serving as the conduit for such information is competent to render an expert opinion on the subject in question. Brooks v. People, 975 P.2d 1105 (Colo.1999); Huntoon v. TCI Cablevision of Colorado, Inc., supra.

Absent a showing of an abuse of discretion, a trial court's decision to allow a witness to testify as an expert will not be disturbed on appeal. Colwell v. Mentzer Investments, Inc., 973 P.2d 631 (Colo.App.1998).

Here, the trial court denied defendant's motion in limine to exclude the expert testimony. Implicit in its determination was that the expert testimony was necessary to aid the jury in deciding the issue of causation.

Defendant's post-trial motions, alleging that the medical literature concerning ethylene oxide exposure did not reasonably support the conclusion that it caused non-reversible neuropathy, were deemed denied.

A.

While defendant asserts that none of plaintiff's experts is a neurologist or neuro-toxologist and that the experts are not experts on ethylene oxide, such observations do not preclude their testimony. One expert had seen 50 to 60 patients with exposure to ethylene oxide. The other two familiarized themselves with the literature in ethylene oxide poisoning and methodically reviewed plaintiff's condition to eliminate other causes.

B.

We also reject defendant's contention that plaintiff's experts had no valid or reliable exposure data. In this regard, defendant points to evidence of periodic monitoring tests that indicated compliance with Occupational Safety and Health Administration (OSHA) standards when the equipment was tested and that the monitoring results were not made available to plaintiff's experts.

To comply with standards concerning ethylene oxide established by OSHA, the hospital hired Hospital Shared Services to monitor periodically the level of the gas in central sterilizing. While Hospital Shared Services' records include some evidence of compliance with OSHA standards, they also reveal that there were incidents of leakage and times when the amounts of ethylene oxide in the central sterilizing room exceeded OSHA standards.

In addition, an industrial hygienist testified that, when opening the door on the sterilizing machines, exposure levels reached 100 to 200 parts per million (ppm), and when a tank was changed, exposure ranged from 100 to 300 ppm. The OSHA standard was 1 ppm.

Further, plaintiff's experts were provided information concerning the length of time that she had worked with the sterilizers and that on a daily basis the packaged instruments that plaintiff handled emitted ethylene oxide after they had been sterilized. They also knew that the hospital's preventive maintenance contractor, who serviced the sterilizers, found leaks in the Portagas and Eagle sterilizers and that the tanks that stored the ethylene oxide emptied too quickly.

Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir.1996), upon which defendant relies, is distinguishable. There, the opinions of plaintiff's experts were primarily based on the affidavit of a co-worker and on extrapolations concerning ethylene oxide handling where plaintiff had worked based on conditions in other hospitals in the 1970's. Here, plaintiff's experts had much more reliable information concerning plaintiff's exposure to ethylene oxide.

C.

We also reject defendant's contention that plaintiff's causation opinions are not generally accepted. Defendant asserts that scientific and medical literature demonstrate that if plaintiff's condition was caused by ethylene oxide, she should have recovered virtually 100% after her exposure had ceased for a period of time. Assuming that a general acceptance analysis is applicable here, we reject defendant's contention. See Brooks v. People, supra (the general acceptance standard applies only to novel scientific devices and processes involving the manipulation of physical evidence).

General acceptance does not require absolute validity or scientific unanimity. Rather, all that is required is that the theory be accepted in a reasonably inclusive manner. Lindsey v. People, 892 P.2d 281 (Colo.1995); Colwell v. Mentzer Investments, Inc., supra.

In the present case, the record includes a study examining 12 nurses and operating technicians who had developed neurological symptoms after being exposed to ethylene oxide. While the numbness in all the subjects decreased over the following year, seven experienced residual decreased sensation and grip weakness despite removal from ethylene oxide treated products.

Further, one of plaintiff's experts, who had treated between 50 and 60 people for ethylene oxide exposure, explained that, if a person is severely poisoned, he or she may develop motor changes such as weakness, inability to use one's hands, and inability to walk, and even become bedridden. He noted that plaintiff has a continuing burning and discomfort in her feet that causes her to walk in a very unusual way and opined that plaintiff's condition is probably permanent.

Although defendant's experts offered testimony suggesting that peripheral neuropa-thies tend to resolve after exposure to ethylene oxide is terminated, defendant did not offer any scientific or medical studies that contradicted the results of the study of the 12 nurses and technicians. Even a defense expert stated that "there's clearly evidence with exposure to a variety of toxins, including this one, that you can have a permanent deficit."

Consequently, the trial court did not abuse its discretion in admitting expert testimony on the causation issue.

IV.

Defendant also contends that it was reversible error for the trial court to deny a new trial based on plaintiff's improper argument concerning the pro rata liability statute. We are not persuaded.

In her closing argument, plaintiff's counsel stated:

[Y¥lou need to understand that to the extent that you place fault on [the hospitall or [one non-party] or [another non-party] or even Betty, Betty does not recover money for the amounts that you designate to those parties. f

In a bench conference, defendant asserted that it was improper for plaintiff to inform the jury on what the net result would be with the non-parties. The court ruled that, under § 18-21-111.5(5), the jury was entitled to be told, that if it found plaintiff to be 50 percent at fault or more, she does not recover, but the court distinguished that from informing the jury that, if it found that any of the non-parties were liable, plaintiff's recovery would be reduced. We need not decide whether the court was correct in this ruling.

Plaintiffs counsel asked the court if she could discuss the allocation of fault from the perspective of defendant in terms of percentages. The court responded that "T'll allow you to say if you find her damages to be X and you find [defendant] to be 80 percent responsible then she'll get 80 percent." Defendant's counsel did not object to the trial court's ruling and requested only that the court instruct the jury to ignore the last comment. The trial court instructed the jury in accordancé with defendant's request.

Plaintiff's counsel subsequently described a number of seenarios to the jury including possible awards of $100,000 and defendant's 50 percent responsibility, a million dollar award and defendant's 90 percent responsibility, and a $1,656,700 award and non-party responsibility of 15 percent. Defendant did not object to these arguments.

A trial court must grant a new trial if it finds that passion, prejudice, or bias has influenced the verdict. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983); Martin v. Principal Casualty Insurance Co., 835 P.2d 505 (Colo.App.1991).

If a party fails to make a contemporaneous objection to closing argument, objection to its propriety is waived. Combined Communications Corp. v. Public Service Co., 865 P.2d 893 (Colo.App.1993).

Here, defendant's counsel did not object to the trial court's ruling or to the questions and arguments that followed from plaintiff's counsel. Thus, denial of defendant's motion for a new trial was not reversible error.

v.

We also reject defendant's contentions that plaintiff's appeals to bias and prejudice required a new trial.

A.

Defendant first seeks a new trial because plaintiff stated during closing argument that "Amsco's the company that has made Betty Salazar go through two trials to get justice." We disagree.

Here, to remedy the alleged prejudice, defendant requested that the jury be instructed that it is entitled to defend a lawsuit. The trial court then instructed the jury that plaintiff brought this lawsuit and that the last trial was on what information plaintiff had, when she had it, and whether, based on that date, her case was time-barred. The trial court further instructed the jury that defendant had a right to assert that defense and it should not infer anything from that.

Because we presume that the jury followed the court's instruction, a new trial is not warranted on this basis. Vallejo v. Eldridge, 764 P.2d 417 (Colo.App.1988).

B.

Defendant also contends that plaintiff asserted that it duplicitously changed its defense from the statute of limitations to the lack of causation between her injuries and exposure to ethylene oxide. However, because defendant did not object to these statements, this contention was not properly preserved for our review. See Combined Communications Corp. v. Public Service Co., supra.

C.

Additionally, we reject defendant's assertion that plaintiff's reference to defendant as a big company with very large resources warrants a new trial.

Although defendant did not object to plaintiff's statement during closing argument, the trial court had previously granted defendant's motion in limine to avoid any reference to defendant's profit or financial condition. Thus, we reject plaintiff's contention that defendant did not properly preserve this issue for our review. See Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo.App.1998).

Because they go outside of the record to appeal to passion and prejudice, statements of counsel regarding a defendant's ability to pay can be sufficient to warrant granting a new trial. Greene v. Julius Lefkowitz & Co., 470 P.2d 586 (Colo.App.1970) (not selected for official publication).

Here, defense counsel stated in closing argument that one of plaintiff's experts was a professional witness because he charged $625 an hour for his time. Plaintiff in rebuttal responded that:

[Defense counsel] was very critical of the costs that some of the experts charged Mrs. Salazar. But the truth of the matter is that if you're going to go up against Amseco, you have to hire the best. They're a very big company. They have very large resources. [The expert] charges a lot of money, he does. He also works for the EPA. He also works for OSHA. He also consults with the United Nations. He's expensive.

We conclude that the response given was reasonable. See Halliburton v. Public Service Co., 804 P.2d 213 (Colo.App.1990)(when a defendant opens the door on a subject by its argument, it is permissible for plaintiffs counsel to respond).

D.

Nor is a new trial required because the trial court allowed evidence or comment on fear of cancer.

To recover for emotional distress arising from a fear of an increased risk of cancer recurrence, the fear of future consequences must be reasonable. ness is determined from all of the facts and circumstances presented in evidence at trial. Boryla v. Pash, 937 P.2d 813 (Colo.App.1996), rev'd on other grounds, 960 P.2d 123 (Colo.1998).

Here, because it initially found that plaintiff did not have cancer, the trial court granted defendant's motion in limine to exclude any reference to plaintiff's fear of cancer. However, relying on Boryla v. Pash, supra, the trial court reversed its ruling during trial. It noted that plaintiff had been diagnosed with cancer and found that there was a reasonable basis for plaintiff's fear of cancer.

On direct examination, plaintiffs medical expert testified without objection that plaintiff's fear of cancer was reasonable in part because of the length of her exposure and that ethylene oxide was a known carcinogen.

On ecross-examination, defendant questioned the expert on whether the likelihood of a malignancy as a result of ethylene oxide exposure was extremely low. Further, defendant offered as an exhibit certain OSHA regulations stating that to comply with 29 C.E.R. Part 1910 (1994), OSHA requires employers to post a warning containing the following:

DANGER ETHYLENE OXIDE CANCER HAZARD AND REPRODUCTIVE HAZARD

Thus, the record supports the trial court's determination that there was a reasonable basis for admitting evidence regarding plaintiff's fear of cancer.

E.

We also reject defendant's contention that plaintiff's argument that defendant had a duty to retrofit one of the sterilizers with later-developed safety devices warrants a new trial.

During the motion in limine hearing, defendant's counsel relied on Romero v. International Harvester Co., 979 F.2d 1444 (10th Cir.1992), to support its position that it had no duty to retrofit a product that was not defective. While plaintiff's counsel agreed with defendant's interpretation of the law, she argued for an instruction stating that the machine should have been recalled. The court accepted plaintiffs position that she would not discuss a duty to recall or retrofit until and unless she presented evidence that there was knowledge of the defect at the time of manufacture.

The issue was not mentioned again until plaintiff's counsel referred to retrofitting in her closing argument. At one point, she stated:

A different decision could have been made right here in 1981. Let's retrofit the Portagas or let's stop selling it. A different decision could have been made in 1981, 1982, and in 1983. And if a different decision had been made here or even here or here, Betty Salazar wouldn't have a peripheral neuropathy from ethylene oxide because the Portagas would have never been used at [the hospital].

Defendant did not make a contemporaneous objection to plaintiff's statements, and we conclude that the lack of such an objection prevented the trial court from timely addressing the impropriety of the argument or correcting any error. See Combined Communications Corp. v. Public Service Co., supra.

F.

Nor 'did the trial court err in denying defendant's motion for directed verdict on plaintiff's negligence claim.

To recover for negligence, a claimant must prove that the alleged tortfeasor owed the claimant a duty, that there was a breach of that duty, that an injury was proximately caused by the breach, and that the plaintiff suffered damages. Boryla v. Pash, supra.

Here, in denying defendant's motion, the trial court found that the evidence supported plaintiff's position that a potential problem was foreseeable and that there was an indication that exposure to a gas, which has certain potential impacts upon the human body, caused plaintiff's condition. As noted, evidence was presented of leakage, inadequate ventilation including the need to provide a hood to ventilate the Portagas, and the need to replace the Portagas.

The evidence, viewed in a light most favorable to plaintiff, supports the trial court's conclusion that a verdict could be rendered in favor of plaintiff. Consequently, the trial court did not err in denying defendant's motion for a directed verdict on this claim.

VI.

Asserting that the jury's award of manifestly excessive damages was motivated by bias and prejudice, defendant also contends that a new trial is mandated. We disagree.

Absent a finding that passion, prejudice, or bias influenced the verdict, the trial court may properly deny a new trial on the condition that the plaintiff agree to a remittitur of the amount of damages found to be excessive. Martin v. Principal Casualty Insurance Co., supra.

Here, defendant requested a remittitur. Plaintiff accepted the remittitur, and the court authorized it. Thus, a new trial is not required on this basis.

VIL.

We also disagree with plaintiff's contentions on cross-appeal.

A

First, she contends that §§ 13-21-111.5(2), C.R.S.1999, and 1838-21-111.5(8), C©.R.8.1999, are unconstitutional as applied if the non-party hospital-employer designated by the defendant for apportionment of fault is immune from suit under the workers' compensation law. Thus, she asserts that the statute violates her rights to procedural and substantive due process because § 13-21-111.5 permits a product manufacturer to reduce its damage liability by invoking the workers' compensation immunity of the employer. We disagree.

Section 18-21-111.5 provides that, in civil actions, plaintiffs and defendants may designate non-parties as being wholly or partially at fault and authorizes the finder of fact to consider the percentage of a non-party's negligence or fault in apportioning ultimate liability. Barton v. Adams Rental, Inc., 938 P.2d 532 (Colo.1997).

Procedural due process requires that a party be given notice and an opportunity to be heard. It also requires a fundamental fairness in procedure. Nicholas v. North Colorado Medical Center, Inc., - P.2d - (Colo.App. No. 98CA1407, Dec. 1999) 1999 WL 1128662. Substantive due process requires that legislation be reasonable and not arbitrary or capricious. Bellendir v. Kezer, 648 P.2d 645 (Colo.1982).

In support of her constitutional arguments, plaintiff relies on Newville v. State, 267 Mont. 237, 883 P.2d 793 (1994); Plumb v. Fourth Judicial District Court, 279 Mont. 363, 927 P.2d 1011 (1996); and Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). She contends that allocation of fault to an immune non-party employer in Colorado lacks adequate procedures to provide for fair apportionment of fault and notes that the non-party employer is not a party to the lawsuit, has not formally appeared in the proceeding, and is not represented by counsel. Thus, the employer has no incentive to defend itself from fault, and the plaintiff's attorney is unable to defend the non-party adequately while representing the plaintiff. Without representation, plaintiff asserts, the non-parties are likely to be assigned a disproportionate share of liability resulting in a reduced recovery to plaintiff, We reject these premises.

1.

Section 18-21-111.5(8)(b), C.R.S.1999, provides that fault of a non-party may be considered if the defending party gives notice that a non-party was at fault within ninety days following commencement of the action unless the court grants a longer period. The notice must include the non-party's name, address, and identification and a brief statement of the basis for believing the non-party to be at fault. Additional provisions are included for licensed health care professionals.

Plaintiff here had an opportunity before, during, and after trial to challenge the admission of evidence related to the hospital's proportion of fault. Consequently, plaintiff was provided notice and an opportunity to be heard. Bourie v. Department of Higher Education, 929 P.2d 18 (Colo.App.1996). Thus, we reject her procedural due process challenge to § 18-21-111.5. See Barton v. Adams Rental, Inc., supra (liability may only be apportioned between a defendant and designated non-party when admissible evidence has been presented that the non-party contributed to the plaintiff's injury).

2.

In the absence of deprivation of a fundamental right, the applicable test for reviewing a substantive due process challenge to a statute is the rational basis standard of review. Ferguson v. People, 824 P.2d 803 (Colo.1992). Under this test, a statute is presumed to be constitutional, and the burden is on the party challenging the statute to establish that the statutory provision lacks a rational relationship to a legitimate governmental interest. Dove Valley Business Park Associates, Ltd. v. Board of County Commissioners, 923 P.2d 242 (Colo.App.1995) aff'd, 945 P.2d 395 (Colo.1997).

In Barton v. Adams Rental, Inc., supra, the supreme court confirmed that the pro rata liability statute was intended to cure the perceived inequity under the common law concept of- joint and several liability under which wrongdoers could be held fully responsible for a plaintiff's entire loss, despite the fact that another wrongdoer, who was not held accountable, contributed to the result. See Brochner v. Western Insurance Co., 724 P.2d 1293 (Colo.1986)(the principle of proportionate fault adopted by the General Assembly represents a rational and equitable approach to the problem of allocating ultimate responsibility between or among joint tort-feasors for the payment of damages to an injured party); see also In re Air Crash Disaster at Stapleton International Airport, 720 F.Supp. 1465 (D.Colo.1989)(statutory ef-feet of shifting loss caused by an immune tortfeasor to the plaintiff is rationally related to the legitimate government interest in requiring defendants to pay no more than their judicially determined share of the loss).

In light of this authority, we agree with the trial court's decision rejecting plaintiff's substantive due process challenge.

8.

For the reasons set forth above, we also reject plaintiff's related contention that reduction of liability violates an employee's right to equal protection of the law.

4.

Nor are we persuaded by the authorities cited by plaintiff. In Newville v. State, supra, the Montana Supreme Court held that the state's apportionment statute violated substantive due process. It concluded that the statute unreasonably mandated an allocation of percentages of negligence to non-parties without any kind of procedural safeguard. In Plumb v. Fourth Judicial District Court, supra, the Montana Supreme Court noted that the new amendments to the apportionment statute did not provide any opportunity for an unnamed third person to appear and defend himself or herself and concluded that the statute violated the right of substantive due process.

Best v. Taylor Machine Works, supra, involved an Illinois statute containing a provision stating that a tortfeasor must receive a credit against lability to the plaintiff in an amount equal to the amount of contribution, if any, for which the employer is found to be liable to that tortfeasor, even if the amount exceeds the employer's liability under the state's workers' compensation act or workers' occupational diseases act. The court struck the provision as either arbitrary, unconstitutional, or entirely superfluous.

We note first that at least one court has specifically rejected the rationale of the Montana cases. See Haff v. Hettich 593 N.W.2d 383 (N.Dak.1999). Further, neither Newville v. State, supra, nor Plumb v. Fourth Judicial District Court, supra, addressed apportionment involving a non-party employer immune from suit under the workers' compensation laws of the state. As to Best v. Taylor Machine Works, supra, the Colorado statutory scheme does not contain a comparable provision.

Colorado's apportionment statute provides for notice to the plaintiff of the designation of a non-party early in the proceeding. Implicit in this procedure is that the burden is on the designating defendant to establish the non-party's fault. In addition, the Workers' Compensation Act provides a substituted form of relief. The Act is a comprehensive and predictable scheme that speedily resolves questions of job-related injuries and fixes employer liability in a way that allows employers to obtain insurance. Williams v. White Mountain Construction Co., 749 P.2d 423 (Colo.1988). This formula allows all parties involved to determine with some degree of certainty the amount of compensation to which the worker is entitled. Bellendir v. Kezer, supra.

Consequently, we reject plaintiff's constitutional challenges to § 18-21-111.5.

B.

We also disagree with plaintiff that, because the jury verdict exceeded her offer of settlement, she is entitled to $14,945 in costs for copying, long distance telephone and facsimile, messenger services, postage, and legal research, which were incurred for the benefit of this litigation.

On March 12, 1996, plaintiff filed an offer of settlement pursuant to § 13-17-202(1)(a)(I), C.R.S.1999, for $350,000, which defendant rejected. Plaintiff recovered a judgment in excess of her offer,. Although plaintiff filed a bill of costs seeking $254,518, the trial court awarded her $114,005.88.

A plaintiff is entitled to costs if "the plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered...." See § 18-17-202(1)(a)(D).

However, a trial court need only award actual costs that are reasonably incurred by a party under § 1317-202. Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993).

Further, an award of actual costs in an amount less than what a plaintiff has claimed as its actual costs is not per se error. Scholz v. Metropolitan Pathologists, P.C., supra.

Here, with record support, the trial court found that plaintiff made certain choices related to costs that were not necessarily reasonable. It also awarded her $4,482.64 in photocopying expenses.

Thus, we perceive no abuse of discretion.

Accordingly, the judgments are affirmed.

Chief Judge HUME and Judge CRISWELL concur.


text:
    Nancy BODELSON, Coroner of Jefferson County; Dave Thomas, District Attorney of the First Judicial District; Bradley Bernall and Misty Bernall, as parents and next friends of Cassie Rene Bernall; Joseph Raymond Kechter and Ann Marie Kechter, as parents and next friends of Matthew Joseph Kechter; Donald Francis Fleming and Diedra Ann Fleming, as parents and next friends of Kelly Ann Fleming; Robert George Curnow and Susan Marie Curnow, as parents and next friends of Steven Robert Curnow; John Michael Tomlin and Doreen Agnes Tomlin, as parents and next friends of John Robert Tomlin; Larry G. Nimmo, Elizabeth Ruth Nimmo, and Darrell David Scott, as parents and next friends of Rachel Joy Scott; Thomas Richard Mauser and Linda Lou Mauser, as parents and next friends of Daniel Conner Mauser; Richard Peter Petrone, Susan Annette Petrone, and Brian Eric Rohrbough, as parents and next friends of Daniel Lee Rohrbough; Neal Roger DePooter and Patricia Jo DePooter, as parents and next friends of Corey Tyler DePooter; Richard L. Townsend, Susan E. Townsend, Dawn L. Anna, and Bruce C. Beck, as parents and next friends of Lauren Dawn Townsend; Albert Bob Velasquez and Phyllis Elaine Velasquez, as parents and next friends of Kyle Albert Velasquez; and Linda Lou Sanders, as wife and next friend of William David Sanders, Plaintiffs and Cross-Appellees, and Thomas Klebold and Susan Klebold, Intervenors-Appellants, v. DENVER PUBLISHING COMPANY, d/b/a Rocky Mountain News, Intervenor-Appellee, and Denver Post Corporation, d/b/a The Denver Post, Intervenor-Appellee and Cross-Appellant.
    Nos. 99CA1312, 99CA1314.
    Colorado Court of Appeals, Div. IV.
    May 11, 2000.
    Rehearing Denied June 15, 2000.

      Frank J. Hutfless, County Attorney, William A. Tuthill, II, Assistant County Attorney, Timothy P. Cox, Assistant County Attorney, Golden, Colorado, for Plaintiffs and Cross-Appeliees Naney Bodelson, Coroner of Jefferson County, and Dave Thomas, District Attorney of the First Judicial District.
    Norton-Lidstone, P.C., Michael J. Norton, Kristen C. Habinak, Englewood, Colorado; Stiner & Beck, Kathryn M. Beck, Golden, Colorado, for Parent Plaintiffs and Cross-Appellees.
    Patterson, Nuss & Seymour, P.C., Franklin D. Patterson, Gregg E. Kay, Paige E. Taylor, Englewood, Colorado, for Interve-nors-Appellants.
    Baker & Hostetler LLP, Mare D. Flink, Demetri E. Munn, Denver, Colorado, for In-tervenor-Appellee.
    Faegre & Benson LLP, Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, for Intervenor-Appellee and Cross-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.

   Opinion by

Judge MARQUEZ.

In these consolidated appeals under the Colorado Open Records Act (CORA), § 24-72-201, et seq., C.R.S.1999, intervenor, the Denver Post Corporation, d/b/a The Denver Post (the Post), appeals the trial court's judgment restricting public inspection and disclosure of the autopsy reports resulting from the incident at Columbine High School on April 20, 1999. That judgment was in favor of plaintiffs, Naney Bodelson, the Jefferson County Coroner, and Dave Thomas, the Jefferson County District Attorney (custodians), and a spouse, parents, and next friends (plaintiffs) of many of the persons who died as a result of the incident. Intervenors, Thomas and Susan Klebold (Klebolds), as parents and next friends of Dylan Klebold, appeal the trial court's judgment ordering release of the autopsy report of their son. We affirm in part and reverse in part.

On April 20, 1999, 12 students and one teacher were victims of a homicide at Columbine High School in Jefferson County. Eric Harris and Dylan Klebold, the two persons identified as the perpetrators, also died there. On May 26, 1999, the custodians and plaintiffs filed a joint petition pursuant to § 24-72-204(6)(a), C.R.S.1999, to restrict public inspection and disclosure of the autopsy reports of the victims, asserting that disclosure would cause substantial injury to the public interest. The parties to the initial joint petition did not include the parents of Dylan Klebold. However, the Klebolds moved to join the joint petition to restrict disclosure and that motion was granted without objection.

The Post and the Denver Publishing Company, d/b/a the Denver Rocky Mountain News (the News), intervened as respondents and opposed the joint petition. After a hearing on May 28, 1999, in a ruling from the bench, the trial court found that release of the autopsy reports would cause substantial injury to the public interest. It granted the joint petition to restrict public inspection and disclosure of the autopsy reports of all persons who died as a result of the April 20, 1999, incident, unless or until there is a criminal prosecution requiring the disclosure of such autopsy reports or until further order of the trial court. The order provided that the parents and spouse of the deceased persons could obtain records of the autopsies. Although requested to do so, the court did not conduct an in camera review of the autopsy reports. In its later written order, the court incorporated its oral order of May 18, 1999, but deleted the words "until such time as a criminal investigation is commenced."

The News filed a post-trial motion for reconsideration as it pertained to the autopsy reports of Eric Harris and Dylan Klebold. On June 24, 1999, the trial court conducted a hearing and found that the CORA did not provide anyone except the official custodian the right to initiate an action to close a public record and that the court lacked jurisdiction to prohibit disclosure of the autopsy reports of Eric Harris and Dylan Klebold. The court then vacated that portion of the order concerning Eric Harris and Dylan Klebold, but stayed the effect of that ruling as it related to Dylan Klebold to allow the filing of an appeal. The stay was to remain in effect until resolution of the appeal. The court later modified its order to exclude one of the student victims, whose parents had not joined the petition. While the News opposes the Klebolds' appeal, it has not separately appealed the court's initial ruling granting the petition.

I.

The Post contends that the trial court erred when it found that publication of the autopsy records would cause psychological harm to the general public such that disclosure of the records would do substantial injury to the public interest. We disagree.

A court's primary task in construing a statute is to give effect to the intent of the General Assembly. Courts should interpret statutory terms in accordance with their plain and ordinary meaning. Thurman v. Tafoya, 895 P.2d 1050 (Colo.1995). Questions of statutory interpretation are reviewed de novo. Zubeck v. El Paso County Retirement Plan, 961 P.2d 597 (Colo.App.1998).

It is the public policy of this state, with certain exceptions, that all public ree-ords shall be open for inspection by any person at reasonable times. See § 24-72-201. This declaration has eliminated any requirement that a person seeking access to public records show a special interest in those records in order to be permitted access to them. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

In pertinent part, § 24-72-204(8)(a), C.R.S$.1999, provides:

The custodian shall deny the right of inspection of the following records, unless otherwise provided by law ...
(I) Medical, mental health, sociological, and scholastic achievement data on individual persons ... exclusive of coroners' autopsy reports....

Thus, autopsy records are public records open to inspection. Denver Publishing Co. v. Dreyfus, supra; Freedom Newspapers, Inc. v. Bowerman, 739 P.2d 881 (Colo.App.1987). However, the CORA also provides a procedure for limiting disclosure.

As relevant here, § 24-72-204(6)(a) provides that:

If, in the opinion of the official custodian of any public record, disclosure of the contents of said record would do substantial injury to the public interest, notwithstanding the fact that said record might otherwise be available to the public inspection, the official custodian may apply to the district court of the district in which such record is located for an order permitting him or her to restrict such disclosure.... In such action the burden of proof shall be upon the custodian....

Therefore, an official custodian can petition to restrict access to public records that are presumptively subject to disclosure. See People in Interest of A.A.T., 759 P.2d 853 (Colo.App.1988).

A substantial injury to the public interest is not defined in the CORA. However, the substantial injury to the public interest exemption contained in § 24-72-204(6)(a) is to be used only in those extraordinary situations which the General Assembly could not have identified in advance. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo.App.1998). The custodian of records has the burden to prove an extraordinary situation and that the information revealed would do substantial injury to the public. Zubeck v. El Paso County Retirement Plan, supra.

Exceptions to the CORA must be narrowly construed. Sargent School District No. RE-33J v. Western Services, Inc., 751 P.2d 56 (Colo.1988).

A.

The Post contends that it must be presumed that the General Assembly concluded that the "cost" of public access to the information-inceluding being exposed to gruesome medical and forensic information that is necessarily included in all autopsy reports-was outweighed by the greater public interest in open government. Thus, according to the Post, it was improper for the court to reweigh the interests and restrict disclosure here. However, because § 24-72-204(6)(a) indicates the General Assembly's intent to protect from disclosure public ree-ords when substantial injury to the public interest would result, we reject this contention. See Freedom Newspapers, Inc. v. Tollefson, supra.

The petition in this case asserts that:

Release of graphic autopsy reports of the children of the Parent Petitioners would serve no useful purpose; would add to the media firestorm which these tragic and unfortunate events have created and continue to create; would cause great emotional harm or distress and embarrassment to the Parent Petitioners and the other members of their families; would unnecessarily inflame the members of the general public; would be an invasion of the personal privacy of the Parent Petitioners and their family members; and would do irreparable emotional harm to the Parent Petitioners and their family members with the result that the grieving and healing process which must occur in our community and in the lives of these Parent Petitioners and their families and is now underway would be permanently impeded or defeated.

In opposition to the petition, the Post argued that the General Assembly has determined that in all cases in which a coroner investigates the cause of death, the autopsy shall be released to the public. In order to justify denial of public access to the autopsy reports, the Post claimed that plaintiffs had to establish not only that these autopsy reports involve homicides by perpetrators that remain at large, but also that the reports contain specific information that, if disclosed, would likely foil an indicated investigative response. It also asserted that the public interest in the autopsy reports at issue here was particularly strong because they are relevant to the public's evaluation of the tragedy and responses by police and medical personnel.

At the hearing conducted on May 28, 1999, the coroner testified that the autopsy reports would provide a detailed description of the individual, including clothing and- any marks on the body. She further explained that the reports would include a description of the damage to the external body, and identify any gunshot or knife wounds and track them through the internal organs that had been damaged. The autopsy reports would also describe any specimens that were obtained, including blood, urine, swabs from the mouth, and sexual exams, and provide a conclusion as to the cause and manner of death. The coroner characterized these details as graphic and gruesome, and believed that the release of the reports would be "very traumatic."

The sister of the spouse of the deceased teacher testified that release of the autopsy reports would "reopen" her sister's wounds and "continue them."

A victim's parent testified that "this is a tragedy that goes beyond the scope of individual families. Columbine is a community, a community that has been wounded very deeply. They hurt. That will go on for some time to come. There are currently in place plans to, and procedures to assist over 2,000 ... victims of this tragedy.... They are still in deep mourning and in a traumatic state."

Another victim's parent testified that releasing the autopsy reports would be "like putting salt in an open wound."

Three other parents provided similar testimony and, without objection, the court admitted letters from other parents consistent with the testimony given at the hearing.

Although the Post had the opportunity to cross-examine the plaintiffs who testified, it chose not to do so. Further, when asked if it had any witnesses to call, the Post responded it did not. Thus, it did not present any evidence rebutting the contentions of the custodians and plaintiffs.

The trial court made extensive findings, including that the autopsies would provide graphic detail concerning the nature of the injuries and that the mechanics of death would clearly be "very hurtful and harmful for the families of these deceased persons." The court also found that it would be equally as hurtful to the public at large.

Although the court noted that the Post and the News had argued that there were lessons that could be learned from review of the autopsies, it found that their argument did not explain what lessons in particular might be learned from review of the autopsies. The court further found that this case was substantially different from the case law concerning disclosure of autopsy reports because: 1) it was unlikely that a homicide prosecution would ensue; and 2) there was no suggestion of an investigation of public entities or officials that would be affected by the contents of the autopsy reports.

After weighing "the good that [was] to be accomplished by release of this information against the harm to the entire community," the court concluded that it was clear that release of the contents of the autopsy reports would cause substantial injury to the public interest.

In our view, the trial court properly determined that the overwhelming grief caused by the nature and extent of this tragedy constituted an extraordinary situation that the General Assembly could not have identified in advance. It did not impermissibly weigh interests already balanced by the General Assembly. Rather, the court reached a conclusion based upon substantial evidence offered by the petitioners that disclosure of the autopsy reports would do substantial injury to the public interest. The CORA does not preclude such a conclusion.

Of prime importance to our determination that the trial court's ruling should be upheld is the fact that the petition was presented only five weeks after the incident and that the trial court's order is not an absolute bar to disclosure. Rather, it provides that public inspection and disclosure are restricted only until further order of the trial court. The court's order does not preclude the Post and others from seeking modification of the court's orders, urging redaction, or again requesting an in camera review.

B.

We also reject the Post's assertion that the trial court created a new categorical exemption that would, in practical effect, exempt from disclosure not only autopsy reports, but numerous other public records that may be deemed highly offensive or objectionable to the general public. The trial court did not rule, and we do not hold, that every public record that is deemed highly offensive or objectionable must or even may be categorically exempt. Rather, we conclude that each petition must be decided on a case-by-case analysis.

Here, the trial court correctly acknowledged that the victims' families could not have resisted disclosure had they attempted to do so on an individual basis. However, the court found that the losses of these families have so impacted this community that the whole community would feel the same pain the families would feel upon reading the contents of the autopsy reports. This "unique factor," according to the court, would do substantial harm to the public interest if the autopsies were released.

The court was not creating a categorical exemption for public records considered to be highly offensive or objectionable to the general public, but was simply applying the exception set forth in § 24-72-204(6)(a) to the unique cireumstances before it, as the General Assembly authorized it to do.

C.

Alternatively, the Post contends that the harm that would result from publication of "graphic details" contained in the autopsy reports is not a particularly unique or extraordinary basis for denying access to public records. We reject this contention.

We note in this regard that the trial court found, with record support, that this multiple homicide is perhaps the most extraordinary event in the history of this community. It also found that:

The public interest in this matter is demonstrated by the unprecedented outpouring of grieving shown by the public at large. This is demonstrated by the memorial service that was held shortly after the event, which was attended by the Governor of this State, the Vice President of the United States, and many state, local, and national dignitaries. There were estimates that the crowd attending this event was 70,000 or more people.
The grief that's present -the public grief that's present here is also demonstrated by the fact that the President of the United States chose to come here to meet with many of the victims and to attend an additional memorial service.
The Court also takes judicial notice of the memorial that was established in Clement Park. That memorial was created by literally thousands of persons who brought remembrances to that site. And thousands more visited that site as a way to seek solace for their grief.

Although the trial court noted the coroner's testimony regarding graphic details, it focused primarily on the extraordinary circumstances leading to the filing of the petition.

IL.

The Post further contends that the trial court erred when it ruled that a party seeking access to autopsy reports must present evidence to establish that there is a public interest in obtaining access to a particular type of record, and that it erred in attempting to balance competing interests. We perceive no error.

We do not view the court's order as requiring the Post to present evidence or as misal-locating the burden of proof as to disclosure. The custodians and plaintiffs alleged that release of the autopsy reports would serve no useful purpose and also presented evidence and argument to that effect. While the Post presented arguments against this position, a fair reading of the court's order is that it was rejecting those arguments and that it viewed the burden of proof to be the responsibility of the custodians and plaintiffs.

In Denver Publishing Co. v. Dreyfus, supra, plaintiff requested the autopsy reports of 14 persons who had died as a result of encounters with the police or had committed suicide while incarcerated in jail. The trial court directed the custodian to make all autopsy reports available except three. Although plaintiff did not cross appeal as to the three reports to which access was denied, the supreme court noted that the trial court properly relied upon the exception at issue here to deny plaintiff's application for inspection of those reports.

Further, a similar analysis has been used to determine whether disclosure of certain public records would cause substantial injury to the public interest in cases involving liberty and privacy interests, See Freedom Newspapers, Inc. v. Tollefson, supra; Denver Post Corporation v. University of Colorado, 739 P.2d 874 (Colo.App.1987).

Here, weighing the benefits of releasing the autopsy reports against the harm that would result to the victims' families and the Columbine community was permissible as part of the inquiry necessary to determine whether disclosure of the reports would cause substantial injury to the public interest.

Consequently, we perceive no error in the trial court's analysis.

HL.

In addition, the Post contends that the trial court's order authorizing nondisclosure of the autopsy reports violates the First Amendment. However, because the Post did not raise in the trial court the constitutional arguments it makes here, we decline to address them. See Diamond Back Services, Inc. v. Willowbrook Water and Sanitation District, 961 P.2d 1134 (Colo.App.1997)(contentions not raised in the trial court are not properly preserved for appellate review). To the extent the Post contended at the hearing that the court withheld information based on a need to channel public discussion, we conclude that such contention is not supported by the record. As set forth above, the court followed an analysis authorized by the CORA and case law.

IV.

The Post further contends that the trial court erred when it refused to conduct an in camera review of the public records at issue to determine whether some of the information contained there could be disclosed without doing substantial injury to the public interest. We are not persuaded.

Here, in its brief and at the hearing, the Post requested that the trial court undertake an in camera review of the autopsy records to redact information that had nothing to do with the cause of death. In anticipation of its findings, the trial court noted that it was not necessary to conduct an in camera review and declined the Post's suggestion.

Nothing in the CORA requires the trial court to conduct an in camera hearing.

In support of its contention, however, the Post relies on language in Background Information Services, Inc. v. Office of State Court Administrator, 980 P.2d 991 (Colo.App.1998), rev'd, 994 P.2d 420 (Colo.1999), that when public records contain both exempt and nonexempt information, the CORA imposes an implied duty on the custodian of records to redact the exempt data from the records in order to facilitate disclosure of the public information. As noted, that decision has been reversed. Further, in that case, no statutory exception limiting disclosure applied to the information sought. Thus, the Post's reliance is misplaced.

Accordingly, the trial court did not err in refusing to conduct an in camera hearing.

NA

The Klebolds contend that the trial court had jurisdiction to seal the autopsy report of Dylan Klebold because, without objection, they joined and became part of the petition filed by the custodians and plaintiffs. They argue that the court erred in vacating its initial order as to him. We agree.

As a threshold matter, we reject the News' contention that the Klebolds lack standing to bring this appeal. As parties claiming to be injured by the trial court's ruling, they have standing to seek reversal of the ruling on appeal. See Gansz v. People, 888 P.2d 256 (Colo.1995).

The Klebolds filed a motion to join the joint petition to restrict disclosure of the autopsy report. They alleged that they were contacted by the Jefferson County District Attorney's Office and the County Attorney's Office of Jefferson County advising their counsel of the filing of the previous petition. They further alleged "that the Parent Petitioners (Kiebolds) have reviewed the Petition and incorporate into this Petition all of the allegations contained therein."

At the hearing on May 28, 1999, the court addressed the Klebolds' motion to join in the petition. Counsel for the coroner and district attorney stated, "We have no objection to the motion for the Klebolds to enter in." The court then inquired of counsel for the Post and the News whether they had anything they wished to say on this issue. Counsel for the Post replied "No, Your Hon- or, we're not - as we're not parties yet, we don't. Even if we were, we would not object." Counsel for the News voiced no objection. The court then granted the motion and joined the Klebolds as parent petitioners in the action.

Later, the News moved the court to reconsider whether the autopsy reports of Eric Harris and Dylan Klebold should be released.

At a hearing on June 24, 1999, the trial court considered the motion filed by the News. Counsel for the family of the deceased teacher and the families of the other 11 victims took no position with respect to the relief requested by the News. Counsel for the Jefferson County Coroner and the district attorney made the following statement:

We believe that the Court had ample evidence before it at the hearing. When we heard this matter there was testimony that of at least 7 witnesses, and 4 written statements in the record which equally supports the Court's findings at that time concerning what the public interest is, how it can best be served in this case. With that in mind, I don't believe there's any need to revisit the issue.
At this time if the proponents of this motion wish to challenge the Court's ruling, they certainly have an opportunity to appeal, but there's no need to revisit the evidentiary matters that support the Court's findings and we would ask that the Court abide by its earlier ruling. Thank you.

The court found that the CORA does not provide a private person the right to bring a cause of action to prohibit disclosure. It ruled that the CORA affords that right only for a public official if, in the public official's opinion, the document should not be disclosed because it would cause substantial injury to the public interest. Reasoning that because the custodians did not ask the trial court to seal Dylan Klebold's autopsy report, the court concluded that it lacked jurisdiction to do so and vacated that portion of its May 28, 1999, order. However, the trial court expressly stayed its ruling to provide the Klebolds the opportunity to appeal.

The CORA allows official custodians of the public record to restrict disclosure under certain cireumstances. See § 24-72-204(6)(a). A "custodian" means and includes the official custodian or any authorized person having personal custody and control of the public records in question. See § 24-72-202(1.1), C.R.S.1999.

Even though the petition was not formally amended to include them, the effect of the May 28 ruling was that the Klebolds joined the petition without objection from the custodians and without qualification. Thus, they were part of the petition brought by a party authorized by statute to bring such a petition and have standing to bring this appeal. Accordingly, the court had jurisdiction to act on the Klebolds' request and it erred in vacating, as- to Dylan Klebold, the order sealing the autopsy reports.

In view of our disposition, we do not address the Klebolds' contention that disclosure of their son's autopsy report by application of the CORA violates their constitutional right of privacy in their individual capacity and as parents of a deceased minor. We also reject the News' contention that the Klebolds should be compelled to pay attorney fees pursuant to C.A.R. 88 for filing a frivolous appeal, and we do not address other contentions raised by the parties.

That portion of the court's order vacating the prior order of May 28, 1999, regarding Dylan Klebold is reversed. The remainder of the judgment is affirmed. However, we again emphasize that the trial court did not absolutely bar disclosure in perpetuity. Thus, the Post and others can now seek modification of the court's order and can urge redaction if appropriate. In such circumstances, the trial court should consider conducting an in camera review.

Judge VOGT and Judge TURSI, concur.