author: Judge DAVIDSON.

text:
    Kort HAWKS, Plaintiff-Appellant, v. AGRI SALES, INC., sometimes d/b/a Moorman Manufacturing Co., sometimes d/b/a A.S.I., sometimes d/b/a Front Range Bean Co., Defendant-Appellee.
    No. 00CA2045.
    Colorado Court of Appeals, Div. IV.
    Nov. 23, 2001.
    Arnold Ross and Singer, LLP, Michael K. Singer, Sterling, CO, for Plaintiff-Appellant.
    Hall & Evans L.L.C., Bruce A. Menk, Alan Epstein, Denver, CO, for Defendant-Appel-lee.
   Opinion by

Judge DAVIDSON.

Plaintiff, Kort Hawks, appeals from the judgment dismissing his personal injury action against defendant, Agri Sales, Inc., as not filed within a limitation period established by Kansas law. We reverse and remand.

Plaintiff, a resident of Kansas, was injured in Colorado on August 15, 1997, while working on defendant’s premises for his Kansas employer. Plaintiff received workers’ compensation benefits from his employer in Kansas under the Kansas workers’ compensation scheme.

On August 11, 1999, plaintiff filed this tort action against defendant in Colorado. Plaintiffs employer was not named as a party and did not intervene. Shortly before trial, defendant moved for summary judgment, arguing that, under Kansas law, because plaintiff had not filed his suit within one year from the date of his injury, plaintiffs employer was the real party in interest.

Defendant relied on Kan. Stat. Ann. § 44-504 (2000), which states, as applicable here:

(b) In the event of recovery from such other person by the injured worker ... by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery. ... Such action against the other party, if prosecuted by the worker, must be instituted within one year from the date of the injury....
(c) Failure on the part of the injured worker ... to bring such action within the time specified by this section, shall operate as an assignment to the employer of any cause of action in tort ... and such employer may enforce the cause of action in the employer’s name or in the name of the worker ... for their benefit as their interest may appear....

In contrast, under Colorado law, despite acceptance of workers’ compensation benefits, a plaintiff remains entitled to bring a claim against a third party for damages in excess of those benefits, as long as the action is brought within the two-year statute of limitations for tort claims. See §§ 8-41-203, 13-80-102, C.R.S.2001.

The trial court applied Kansas law, granted defendant’s motion, and dismissed plaintiffs complaint.

On appeal, plaintiff argues that the trial court erred by applying Kansas law to bar his suit against defendant. We agree.

In resolving choice of law issues in tort actions, Colorado follows the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws (1971). In applying the most significant relationship test, courts are to evaluate the various contacts, such as the place where the injury occurred, the residence of the parties, and the place where the parties’ relationship is centered, as well as the policies of the interested states. See First National Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); ITT Specialty Risk Services v. Avis Rent A Car Sys. Inc., 985 P.2d 43 (Colo.App.1998); Sabell v. Pacific Intermountain Express Co., 36 Colo.App. 60, 536 P.2d 1160 (1975).

Here, plaintiff is a resident of Kansas. However, the injury occurred in Colorado, and although plaintiffs employer is a resident of Kansas, defendant is a resident of Colorado. Thus, as to plaintiffs tort claim against defendant, Colorado has the most significant relationship.

However, as defendant points out, the particular state law selected by a court under choice of law principles may vary depending upon the precise question at issue. See, e.g., ITT Specialty Risk Services v. Avis Rent A Car Sys. Inc., supra. Defendant argues that the specific issue it has raised here — whether plaintiff is a real party in interest — is determined by the applicable workers’ compensation scheme. Hence, according to defendant, the precise question here is one of workers’ compensation.

Accordingly, relying on the Restatement (Second) of Conflict of Laws § 185 (1971), defendant argues that, because plaintiff received workers’ compensation benefits in Kansas, Kansas law governs the workers’ compensation relationship. Thus, according to defendant, the trial court correctly applied § 44-504(b) to bar plaintiffs suit. We disagree.

Restatement § 185 provides:

The local law of the state under whose workmen’s compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury.

By its plain language, Restatement § 185 recommends that local workers’ compensation law be used to determine the interest of “the person who paid the [workers’ compensation] award.” Indeed, although defendant is correct that Restatement § 185 has been applied in Colorado, it has been used only in the context of disputes involving the reimbursement rights of an insurer or employer. See Brown v. Globe Union, 694 F.Supp. 795 (D.Colo.l988)(applying § 185 to subrogation claim to support same outcome reached under significant relationship test); ITT Specialty Risk Services v. Avis Rent A Car Sys. Inc., supra (same).

The majority of jurisdictions that have applied Restatement § 185 also have done so in the context of disputes involving the rights or interests of the employer or workers’ compensation insurer. See, e.g., Langston v. Hayden, 886 S.W.2d 82 (Mo.Ct.App.l994)(ap-plying Kansas law in Missouri to determine rights of the employer to bring suit on behalf of injured worker). See also Boyle v. Texasgulf Aviation, Inc., 696 F.Supp. 951 (S.D.N.Y.1988)(recognizing distinction between choice of law analysis for tort and subrogation claims).

Plaintiffs tort action against defendant here, however, does not involve plaintiffs employer, and the employer’s interest, at this point, is irrelevant to plaintiffs claims and defendant’s liability. Thus, although § 185 might be useful in determining whether a Kansas employer who has paid workers’ compensation benefits could independently bring suit against an alleged tortfeasor in Colorado, it has no applicability to the situation here.

Defendant argues that, nonetheless, Kansas has a strong interest in barring plaintiffs suit under these circumstances, which interest, in defendant’s view, outweighs the parties’ other contacts with Colorado. We disagree.

We do agree, generally, that Kansas has a significant interest in the application of its workers’ compensation program. See, e.g., Brown v. Globe Union, supra. However, according to Kansas law, the specific purpose of § 44-504 is not to limit an employee’s ability to recover against a third party, but instead to benefit the entity that provided workers’ compensation benefits. See Terrell v. Ready Mixed Concrete Co., 174 Kan. 633, 258 P.2d 275 (1953). Similar to the Colorado workers’ compensation scheme, Kansas provides to an employer an additional opportunity to obtain reimbursement by giving the employer an independent right to sue. See Rumbaugh v. Vonfeldt, 190 Kan. 798, 378 P.2d 5, 9 (1963)(Section 44-504 was not intended to shorten the two-year period in which an action must be brought, nor to benefit an alleged tortfeasor. “Nor is the statutory assignment complete and in destruction of the rights of the employee,” but is intended to give the employer or insurer a cause of action it did not otherwise possess under common law.).

Accordingly, Kansas does not consider an employee’s failure to meet the one-year requirement of § 44-504(b) to constitute an absolute bar to suit. See Baird v. Phillips Petroleum Co., 535 F.Supp. 1371 (D.Kan.1982) (allowing retroactive amendment of complaint to reflect interests of employer and insured); Rumbaugh v. Vonfeldt, supra (statutory assignment of rights to the subrogee after one year does not deprive the employee of his rights, but the cause of action should be also in the name of the employer); see also Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968); Klein v. Wells, 194 Kan. 528, 400 P.2d 1002 (1965); Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P.2d 444 (1955). See generally 7 Larson’s Workers’ Compensation Law § 120.04[2-5] (2001)(discussion of purpose of statutory assignment of employee’s claim to benefit employer, not tortfeasor).

Although we agree with defendant that in McLendon v. Kissick, 363 Mo. 264, 250 S.W.2d 489 (1952), the Missouri court construed Kansas law to bar a plaintiffs claim after one year, in light of the subsequent decisions of the Kansas Supreme Court on this issue, we disagree that McLendon v. Kissick remains viable as an accurate interpretation of Kansas law. See, e.g., Rum- baugh v. Vonfeldt, supra; see also Baird v. Phillips Petroleum Co., supra (discussing Kansas law).

Thus, contrary to defendant’s contention, Kansas has demonstrated no policy interest in barring a tort action such as plaintiffs suit here. Furthermore, because plaintiffs employer has not brought a subrogation claim or intervened in plaintiffs action within the applicable two years, plaintiffs Colorado tort claim against defendant, if successful, would give plaintiffs employer its only opportunity to recover the amount of workers’ compensation benefits it has paid. Ironically then, the trial court’s dismissal of plaintiffs complaint was actually inconsistent with Kansas’s statutory goal to enable an employer to recover on its workers’ compensation subrogation lien.

The judgment is reversed, and the case is remanded to the trial court to reinstate plaintiffs complaint.

RULAND and DAILEY, JJ., concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    Ollette OMEDELENA, Plaintiff-Appellee, v. DENVER OPTIONS, INC., a Colorado nonprofit corporation; and Bethphage, Inc., a Nebraska corporation, Defendants-Appellants.
    No. 00CA1640.
    Colorado Court of Appeals, Div. IV.
    March 14, 2002.
    Certiorari Denied Jan. 13, 2003.

      Leslie A. Petri, Law Office of J. Mark Baird, LLC, J. Mark Baird, Kimberly L. Johnson, Denver, CO, for Plaintiff-Appellee.
    Kennedy & Christopher, P.C., Michael T. Mihm, John R. Mann, Denver, CO, for Defendant-Appellant Denver Options, Inc.
    Inman Flynn & Biesterfeld, P.C., Richard P. Brentlinger, Robert J. Thomas, Denver, CO, for Defendant-Appellant Bethphage, Inc.
    Hale Hackstaff Tymkovich & ErkenBrack, LLP, Richard A. Westfall, Denver, CO, for Amicus Curiae Colorado Association of Community Centered Boards.

       Justice RICE would grant as to the following issues:
      Whether the court of appeals erred in holding that respondent's pecuniary interest in a private contract outweighs Denver Options’ statutory and regulatory duties to prtect persons with developmental disabilities from neglect.
      Whether the court of appeals erred in holding that Denver Options did not have a contractual right as a matter of law to refuse to fund respondent's contracts after charges of neglect against her had been substantiated.

   Opinion by

Judge TAUBMAN.

Defendants, Denver Options, Inc., and Bethphage, Inc., appeal the judgment entered on a jury verdict in favor of plaintiff, Ollette Omedelena, on her claims of intentional interference with contractual relations and prospective economic advantage. We affirm.

Omedelena is a host home provider. As a host home provider, she cared for two developmentally disabled persons, J.C. and R.M., both severely mentally retarded. Omedelena cared for the two women in her home for almost ten years under a series of contracts with different service agencies.

Bethphage, a nonprofit corporation, is a service agency. Services agencies, defined in § 27-10.5-102(28), C.R.S.2001, subcontract with people like Omedelena who provide support for developmentally disabled persons in their home. Bethphage in turn receives its funding from community centered boards.

Denver Options, a nonprofit corporation, is a community centered board. Community centered boards enable persons with developmental disabilities to live in residential settings that reflect typical patterns of everyday living, rather than being housed in institutions. They contract with the Colorado Department of Human Services (Department) to arrange for the provision of services for persons with developmental disabilities. Funding for community centered boards comes from various state and local sources, as well as private donations. Denver Options contracts with thirty-four service agencies that provide adult services and seventy-five agencies that provide services to children.

This conflict arose on June 9, 1998, when two Bethphage employees and a Department inspector conducted a survey for R.M. A survey is an inspection to ensure that developmentally disabled persons are receiving proper care. This survey took place at a beauty parlor where Omedelena had taken J.C. and R.M. for a haircut. When the inspector arrived, he found J.C. sitting alone, outside the beauty parlor, in Omedelena’s van. After asking Omedelena why J.C. was not being supervised, he noted the incident in his survey report and advised Bethphage that the incident should be investigated as neglect.

On June 13, 1998, Omedelena notified Bethphage that she did not intend to renew her contract with Bethphage and that she intended to contract with another service agency, Innovative Training and Development Services (ITDS), to provide services for J.C. and R.M.

Although Bethphage is required to file a report within twenty-four hours of an. incident, it did not file an incident report related to the June 9 incident until June 16, 1999.

On July 7, 1998, Omedelena, employees from Bethphage and Denver Options, R.M., J.C., and J.C.’s legal guardian attended an interdisciplinary team meeting. At this meeting, the team discussed Omedelena’s desire to contract with another service agency, as well as the June 9 incident. The team approved Omedelena’s transfer to another service agency, with her continuing to care for J.C. and R.M.

On July 9, 1998, Omedelena entered into a contract with ITDS, funded by a contract between Denver Options and ITDS, to provide services to J.C. and R.M. These contracts were to become effective on July 13, 1998.

On July 10, 1998, Bethphage was informed by the Denver Options employee investigating the June 9 incident that there would likely be a finding .of neglect against Ome-delena. Bethphage decided, that day, the last business day before Omedelena’s contract with ITDS was to take effect, to remove J.C. and R.M. from Omedelena’s home. Denver Options also decided that day to delay the funding of its contract with ITDS.

However, when Denver Options and Beth-phage attempted to contact Omedelena on July 10, they could not find her, J.C., or R.M. The three had left for vacation and did not return until July 17. Omedelena had notified her Bethphage supervisor about the trip, but she had not discussed the vacation with J.C.’s legal guardian, as she had in the past, or left any contact information with Denver Options or Bethphage. Because Denver Options and Bethphage were unable to contact Omedele-na, even after leaving several messages with her son, they notified the police that J.C. and R.M. were missing.

Denver Options permanently terminated funding of its contract with ITDS on July 13, 1998. As a result, ITDS rescinded its contracts with Omedelena pursuant to a funding availability clause. When Omedelena returned with J.C. and R.M., they were removed from her home and placed with another host home provider.

Omedelena filed this suit against both Denver Options and Bethphage, asserting claims including intentional interference with contractual relations and intentional interference with prospective economic advantage. Ome-delena alleged that Bethphage’s and Denver Options’ purported reason for removing J.C. and R.M. from her care and terminating the ITDS contract — to protect J.C. and R.M. from neglect — was a mere pretense to prevent her from contracting with ITDS and to protect them own economic self-interest.

Both Denver Options and Bethphage filed motions for summary judgment, which the trial court denied. At trial, Denver Options and Bethphage moved for directed verdicts. Relying on Restatement (Second) of Torts § 770 (1979), Denver Options asserted that it was privileged to interfere with a contract or prospective economic advantage because it was acting to protect the welfare of J.C. and R.M. when it denied funding to ITDS. Beth-phage joined Denver Options in this motion and also argued that it could not have interfered with Omedelena’s contracts because it did not control any funding for her. The trial court denied both motions. The jury awarded Omedelena economic, noneconomic, and punitive damages.

I. Absolute Statutory Right to Prohibit Neglect

Denver Options and Bethphage contend the trial court improperly denied their motions for directed verdict because they have an absolute statutory right to prohibit neglect and that, therefore, their interference with ITDS’s contract with Omedelena was not improper. We disagree.

The tort of intentional interference with contractual relations is committed when one intentionally and improperly interferes with the performance of a contract between another person and a third person by inducing or otherwise causing the third person not to perform the contract. Westfield Dev. Co. v. Rifle Inv. Assoc., 786 P.2d 1112 (Colo.1990).

In Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 690 P.2d 207 (Colo.1984), the supreme court followed Restatement (Second) of Torts §§ 767 and 768 (1979) to determine whether interference is improper. The court stated that the term “improper” requires courts to examine the factors listed in § 767, which include the interests of the parties and those of society, before determining whether a person’s intentional interference with a contract is actionable.

Generally, tortious interference with contractual rights must involve a wrongful act or a legal act performed in an unlawful manner. Int’l Ass’n of Machinists v. Southard, 170 Colo. 119, 459 P.2d 570 (1969).

No liability attaches, however, where the act alleged to have caused the breach was undertaken in the exercise of an absolute right, that being conduct which the actor has a definite legal right to engage in without qualification. Radiology Prof'l Corp. v. Trinidad Area Health Ass’n, 39 Colo.App. 100, 565 P.2d 952 (1977), aff'd, 195 Colo. 253, 577 P.2d 748 (1978).

In Radiology, a division of this court noted that the boundaries of absolute right and qualified justification have not been firmly established. It also observed that absolute rights had been established concerning such interests as property ownership, contractual entitlement, and freedom of contract. Further, the division stated that an absolute right may be exercised without liability regardless of motivation, while qualified justification requires a fact finder to determine, after balancing conflicting interests, whether an alleged interference was warranted.

Colorado also recognizes a cause of action for tortious interference with prospective business or economic advantage. See Amoco Oil Co. v. Ervin, 908 P.2d 493 (Colo.1995). A division of this court has applied Restatement (Second) of Torts § 768 to this tort. Dolton v. Capitol Fed. Sav. & Loan Ass’n, 642 P.2d 21 (Colo.App.1981).

While an underlying contract is not required for this tort, there must be a showing of improper and intentional interference by the defendant that prevented the formation of a contract between the plaintiff and a third party. Wasalco, Inc. v. El Paso County, 689 P.2d 730 (Colo.App.1984).

In evaluating motions for directed verdict, we must determine whether there is any evidence of sufficient probative force to support the trial court’s findings. A reviewing court considers all evidence in the light most favorable to the party against whom the motion is directed and indulges every reasonable inference that can be legitimately drawn from the evidence in that party’s favor. However, when the relevant facts are undisputed, an appellate court may make an independent determination of any legal question. Evans v. Webster, 832 P.2d 951 (Colo.App.1991). Here, because there are no facts in dispute on this issue, we review de novo defendants’ absolute statutory right contention.

A. Denver Options’ Statutory Contention

Denver Options argues that, because it had an absolute right to prohibit neglect under applicable statutes and regulations, it had an absolute legal right to deny funding to ITDS for Omedelena’s services. We disagree.

Denver Options and Bethphage are regulated by a comprehensive statutory scheme concerning the care and treatment of the developmentally disabled. Section 27-10.5-101, et seq., C.R.S.2001. A service agency and a community centered board acting as a service agency must comply with all statutory requirements establishing the standard of care for developmentally disabled persons. Section 27-10.5-104(2), C.R.S.2001. “All service agencies shall prohibit mistreatment, exploitation, neglect, or abuse in any form of any person receiving services.” Section 27-10.5-115(2), C.R.S.2001.

To determine whether Denver Options had an absolute right to act without qualification, we examine the above statutes using familiar rules of statutory construction. When the General Assembly enacts a statute, it is presumed that a just and reasonable result is intended and that the public interest is favored over any private interest. Section 2-4-201(l)(c), (e), C.R.S.2001. Additionally, statutes must be construed to carry out their beneficent purposes. Seibel v. Colo. Real Estate Comm’n, 34 Colo.App. 415, 530 P.2d 1290 (1974). Further, statutes should be construed as a whole to give consistent, harmonious, and sensible effect to all their parts. In re Marriage of Davisson, 797 P.2d 809 (Colo.App.1990).

We consider the statutory provisions upon which Denver Options relies in light of the legislative declaration for article 10.5(1). That declaration provides, in relevant part, that the statutory provisions for the care and treatment of the developmentally disabled are intended:

(a) To provide appropriate services and supports to persons with developmental disabilities throughout their lifetimes regardless of them age or degree of disability;
(b) To prohibit deprivation of liberty of persons with developmental disabilities, except when such deprivation is for the purpose of providing services and supports which constitute the least restrictive available alternative adequate to meet the person’s needs, and to ensure that these services and supports afford due process protections;
(d) To ensure the provision of services and supports to all persons with developmental disabilities on a statewide basis;
(f) To provide community services and supports for persons with developmental disabilities which reflect typical patterns of everyday living; [and]
(h) To ensure that persons with developmental disabilities receive services and supports which encourage and build on existing social networks and natural sources of support, and result in increased interdependence, contribution, and inclusion in community life.

Section 27-10.5-101(1), C.R.S.2001.

Article 10.5 provides for a complex set of relationships among community centered boards, service agencies, and, in some cases, host home providers, to provide services and support to persons with developmental disabilities. Although § 27-10.5-115(2) directs service agencies to prohibit mistreatment, exploitation, neglect, or abuse, such directive is in the context of a statute which requires service agencies to provide humane care and treatment to persons with developmental disabilities. There is no express statutory provision which specifically entitles either a community centered board or a service agency to terminate funding to a host home provider under the circumstances presented here.

We note that Denver Options has not cited any case in which a claim of intentional interference with contract relations or prospective economic advantage has been based on a party’s absolute right to act based on a particular statute. Our research has not revealed any such case, and we decline to conclude that article 10.5 provides an absolute right for Denver Options to terminate Omedelena’s contract. Even if we were to assume that a statute could provide a party an absolute right to interfere with an existing or prospective contract, we conclude such statutory right must be narrowly tailored to focus on the particular circumstances presented. The statute here is not so specific.

We also conclude that the regulations upon which Denver Options and Bethphage rely do not afford them an absolute right to interfere with existing or prospective contracts. As with the statutes, the applicable regulations establish a detailed scheme for regulating the conduct of community centered boards, service agencies, persons with developmental disabilities, and others. The regulations relevant here stated that they were intended to:

establish requirements for providing appropriate and quality services and supports for persons with developmental disabilities and their families.... These rules are designed to assist and guide the provision of services and supports within the best practices known to the Department, encourage best practices within and between the community centered boards, service agencies and regional centers, and to protect persons with disabilities from abuse, mistreatment, neglect and exploitation. These rules also establish a system which provides fair and equitable due process in resolution of conflicts between the various constituent groups that are subject to these regulations.

Dep’t of Human Services Reg. (Purpose), 2 Code Colo. Regs. 503-1 (1995)(repealed Jan. 10, 2001)(emphasis added).

The goal of assuring due process in resolving conflicts among the various constituent groups set forth in this regulation is inconsistent with Denver Options’ contention that it may act unilaterally based upon an absolute right to terminate Omedelena’s contract. Indeed, the regulations provide detailed procedures for resolving contract disputes between community centered boards and service agencies. Dep’t of Human Services Regs. 16.323, 2 Code Colo. Regs. 503-1 (2001)(simi-lar version formerly codified as Reg. 7.3 (1995)); see also Dep’t of Human Services Reg. 16.560 (similar version formerly codified as Reg. 10.6 (1995))(incident reporting); Dep’t of Human Services Reg. 16.624 (formerly codified as Reg. 12.3 (1995)) (specifications for the provision of services and supports through host home providers).

Significantly, although two regulations authorize emergency action to protect a person with developmental disabilities, neither authorizes Denver Options to interfere with an existing or prospective contract of a host home provider. See Dep’t of Human Services Reg. 16.312(A)(5), 2 Code Colo. Regs. 503-1 (2001)(formerly codified as Reg. 6.2.1.5 (1995))(emergency action may be taken by a developmental disabilities professional, including a person designated by the director of a community centered board or service agency, to suspend the rights of the developmentally disabled person if such action is “imminently necessary to protect the health and safety of the person, others, or property”); Dep’t of Human Services Reg. 16.323(C) (formerly codified as Reg. 7.3.3 (1995))(during contract dispute between community centered board and service agency, the community centered board shall honor all contractual obligations; no agency shall have its contract terminated pending resolution of a contractual dispute unless necessary for preservation of public health, safety, or welfare).

Further, Denver Options is governed by Department regulations that require community centered boards to be responsible for monitoring the services and support provided to developmental^ disabled people. Dep’t of Human Services Reg. 16.460, 2 Code Colo. Regs. 503-1 (2001)(formerly codified as Reg. 5.6.1 (1995)). These regulations mandate that community centered boards provide a procedure for reporting, reviewing, and investigating all allegations of abuse, mistreatment, and neglect in order to ensure prompt action to protect the safety of developmentally disabled persons and that appropriate legal recourse is taken against employees who have engaged in such conduct. Dep’t of Human Services Reg. 16.580 (formerly codified as Reg. 10.9.2 (1995)).

Although these regulations detail the procedures that may be taken by community centered boards, service agencies, and others in eases of suspected abuse or neglect, they do not authorize such entities to interfere unilaterally with existing or prospective contracts.

Accordingly, we conclude that the trial court properly denied Denver Options’ motion for directed verdict based upon its asserted absolute right to prohibit neglect under applicable statutes and regulations.

B. Bethphage’s Statutory Contention

Similarly, Bethphage contends that because it has a statutory duty to ensure the safety of developmentally disabled persons and to report any instances of neglect, abuse, or mistreatment, it had an unqualified right to remove J.C. and R.M. from Omedelena’s care, and therefore its conduct was not improper. We are not persuaded.

As discussed above, the applicable statutes and regulations do not give a service agency an absolute right to remove a developmentally disabled person from a host home provider even if an allegation of neglect has been substantiated.

Because Bethphage did not have an unqualified statutory or regulatory right to remove J.C. and R.M. from Omedelena’s care, the trial court properly denied its motion for directed verdict.

C. Policy Considerations

In concluding that neither Denver Options nor Bethphage had an absolute statutory right to act, we are mindful of the concerns raised by defendants and amicus as to the important role played by community centered boards and service agencies. Those entities are uniquely situated to protect people with developmental disabilities and to ensure the fullest measure of them privacy, dignity, rights, and privileges. See § 27-10.5-101. For example, the Department’s regulations provide that an agency may (1) terminate a contract if necessary for the preservation of public health, safety, or welfare as determined pursuant to § 16.325, Dep’t of Human Services Reg. 16.323(C); (2) take emergency action and suspend a developmentally disabled person’s rights if imminently necessary to protect the health and safety of the person, others, or property by using the least intrusive means, Dep’t of Human Services Reg. 16.312(A)(5); and (3) remove a developmentally disabled person or replace staff if the agency determines the action is necessary and appropriate, Dep’t of Human Services Reg. 16.580(B)(8).

Nevertheless, such entities should not be insulated from liability if they misuse their power and responsibility to protect developmentally disabled persons. The mandate of community centered boards and service agencies to protect and care for people with developmental disabilities cannot eliminate the right of host home providers to be protected from the arbitrary action of such entities.

II. Absolute Contractual Right to Prohibit Neglect

Denver Options and Bethphage also argue the trial court erred in denying their motions for directed verdict because they have an absolute contractual right to interfere with Omedelena’s contract relations or prospective economic advantage based on the language of them respective contracts. We are not persuaded.

Because there are no facts in dispute on this issue, we review de novo defendants’ absolute contractual right contention. See Evans v. Webster, supra, 832 P.2d at 954.

A. Denver Options’ Contract

Denver Options argues that it had an absolute right under its contract with ITDS to deny funding for Omedelena’s services. We disagree.

Here, the contract between Denver Options and ITDS provided the following:

ITDS shall avoid hiring applicants and/or utilizing volunteers who would have unsupervised contact with or access to persons receiving services or their property, and who have substantiated histories indicating abuse, neglect, or mistreatment of a child, adult, or person receiving services.

In addition, the contract provided that the executive director of Denver Options may

[r]equest the removal from work on the contract of employee(s) and/or agent(s) of [ITDS] whom Denver Options justifies as being incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued employment on the contract it deems to be contrary to the public interest or not in the best interests of Denver Options or the State.

Thus, based on the contract language, the executive director of Denver Options could request that ITDS remove a host home provider in two situations: (1) if Denver Options justifies that the host home provider is incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable; or (2) if Denver Options deems that the host home provider’s continued employment is contrary to the public interest or not in the best interests of the state.

Accordingly, the contract did not give Denver Options the unqualified right to deny funding. At most, Denver Options could request, not demand, that ITDS remove a host home provider under certain circumstances. Here, Denver Options did not request that ITDS remove Omedelena from the contract.

In addition, the contract only mandates that ITDS “shall avoid hiring” applicants or using volunteers who have substantiated histories indicating abuse, neglect, or mistreatment of a child, adult, or person receiving services.

Accordingly, in our view, this contract is not a contract of the type envisioned by the supreme court in Radiology, supra, where a contracting party has an unfettered legal right to act.

Indeed, Denver Options’ contract is more similar to the contract in Memorial Gardens, supra. There, the supreme court addressed a claim of intentional interference with contract relations and analyzed a contract to determine if the competitors’ privilege applied. Under the competitors’ privilege, an actor may be immune from liability if he or she interferes with a contract that is terminable at will. See Restatement (Second) of Torts § 768. In concluding that the competitors’ privilege did not apply there, the court stated:

A contract terminable at will is one that may be terminated at any time without legal consequence; that is, there is no breach if the contract is terminated. The cancellation clause in the Memorial Gardens contracts does not allow the contract to be terminated with impunity; the clause provides for liquidated damages in the case of a breach. A liquidated damages clause is inconsistent with the existence of a contract terminable at will.

Memorial Gardens, Inc. v. Olympian Sales & Mgt. Consultants, Inc., supra, 690 P.2d at 212.

Similarly, we conclude that the “request removal” language in the contract here is inconsistent with an absolute right to act without qualification.

Finally, to the extent that Denver Options relies on Lufti v. Brighton Community Hospital Ass’n, 40 P.3d 51 (Colo.App.2001), we find that case distinguishable. The contract in Lufti provided that the defendants could remove the plaintiff physician from his employment at the hospital at any time ivithout any reason. In this case, Denver Options may only request a service agency to remove a host home provider.

Nor do we agree with the amicus that Denver Options could terminate its contract with ITDS for any reason. Paragraph 30(b) of the contract provides that Denver Options may immediately cancel a contract, in its sole discretion, if it determines that the health, safety, or welfare of persons receiving services may be in jeopardy. Although this broad language gives Denver Options a measure of flexibility, it nevertheless requires that Denver Options determine that the health, safety, or welfare of a developmentally disabled person may be in jeopardy. Even though the contract allows Denver Options to exercise its sole discretion, it must do so reasonably. See, e.g., Steidtmann v. Koelbel & Co., 32 Colo.App. 94, 506 P.2d 1247 (1973). Whether it acted reasonably is a factual determination. A contractual clause that depends on a factual determination is inconsistent with an unequivocal legal right to act.

Therefore, we conclude that the trial court properly denied Denver Options’ motion for directed verdict on this issue.

B. Bethphage’s Contract

Bethphage argues that it had an absolute right to remove J.C. and R.M. from Ome-delena’s care. Again, we disagree.

Here, the contract between Bethphage and Omedelena provided:

If at any time Bethphage or the Client’s Interdisciplinary Team reasonably believes that the welfare and well-being of the Client has been seriously compromised, the Client may be removed from Provider’s care and home immediately and without notice to Provider and this contract shall be terminated with any compensation due Provider for the month in which such termination occurs prorated to the date of removal.

Contrary to Bethphage’s contention, this language did not authorize Bethphage to remove J.C. and R.M. from Omedelena’s care without qualification. Indeed, the contract specifically provided that Bethphage could only remove J.C. and R.M. if it reasonably believed that their welfare was seriously compromised. This language creates, at a minimum, an issue of fact regarding whether Bethphage reasonably believed that J.C. and R.M. were in danger after the June 9 incident and the vacation.

Thus, we conclude that because Bethphage did not have an absolute contractual right to remove J.C. and R.M., the issue regarding whether Bethphage acted improperly was properly submitted to the jury.

III. Privilege to Interfere

Denver Options and Bethphage nevertheless argue that they were privileged, as a matter of law, to interfere with Omedelena’s contract with ITDS because they were acting to protect the welfare of J.C. and R.M. We are not persuaded.

The Restatement (Second) of Torts recognizes that under certain circumstances, interference with contract relations or prospective economic advantage is privileged and is therefore not improper as a matter of law. See Amoco Oil Co. v. Ervin, supra (adopting competitor privilege articulated in Restatement (Second) of Torts § 768).

The privilege to act for the welfare of a third person provides as follows:

One who, charged with responsibility for the welfare of a third person, intentionally causes that person not to perform a contract or enter into a prospective contractual relation with another, does not interfere improperly with the other’s relation if the actor
(a) does not employ wrongful means and
(b) acts to protect the welfare of the third person.

Restatement (Second) of Torts § 770 (1979).

Here, the trial court provided the jury with an instruction that paralleled this provision. In addition, the trial court provided the following instruction defining wrongful means:

[Any act that is] independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or common law; [or if the defendant] was not acting in good faith for the interests of the client; or [if the defendant] was motivated by self-interest.

Denver Options and Bethphage argue that because they are mandated by statute and regulation to protect J.C. and R.M., it is impossible, as a matter of law, for them to have employed any wrongful means.

However, as discussed above, Denver Options and Bethphage did not have an absolute statutory or contractual right to interfere with Omedelena’s contract. Further, evidence was submitted at trial that: (1) Bethphage was frequently lobbying Denver Options to change its procedures so that it would be more difficult for a host home provider to switch service agencies; (2) Beth-phage was very concerned about its financial stability and became hostile towards Ome-delena when she announced her resignation and intent to contract with a rival service agency; (3) Bethphage and Denver Options had not in the past removed developmentally disabled persons from a host home provider where there were more serious allegations of neglect; and (4) Omedelena had indeed taken J.C. and R.M. on vacation, with prior notification to Bethphage. Thus, an issue of fact remained regarding whether Bethphage and Denver Options had employed a wrongful means, as defined in the jury instructions. Therefore, this issue was properly before the jury, and the trial court did not err when it denied defendants’ motion for directed verdict on this basis. See Evans v. Webster, supra.

IV. Denver Options’ Funding Decisions

Bethphage contends it could not have interfered with Omedelena’s contractual relations or prospective economic advantage because the contract funding was controlled solely by Denver Options. Again, we disagree.

Here, the trial court instructed the jury that the interference was defined as “[a]ny intentional conduct of a person that renders another person’s performance of his or her contractual obligations impossible or more burdensome.” Bethphage did not object to this jury instruction.

Sufficient evidence was presented at trial to enable the jurors to conclude that Bethphage’s hostility towards Omedelena influenced Denver Options’ decision to withdraw funding. In addition, the jury instruction did not limit interference to only funding decisions that directly caused ITDS to rescind the contract with Omedelena. Thus, there was ample evidence that Bethphage’s conduct made Omedelena’s contract with ITDS impossible or more burdensome to perform. Therefore, the trial court properly denied Bethphage’s motion for a directed verdict on this issue. See Evans v. Webster, supra.

V. Issues Preserved on Appeal

Omedelena argues that Denver Options and Bethphage have not properly preserved seven issues that they raise on appeal. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992)(argu-ments never presented to, considered, or ruled upon by a trial court may not be raised for the first time on appeal). We agree in part and address her contentions below.

Initially, Omedelena asserts that Denver Options and Bethphage did not raise their absolute statutory right, contractual right, and privilege contentions before the trial court. The record reflects that Denver Options sufficiently preserved these arguments in its oral motion for a directed verdict, which incorporated its motion for summary judgment where these issues were raised. Denver Options also submitted a jury instruction on the issue of absolute right which was rejected by the trial court. In addition, Bethphage sufficiently raised these issues when it joined Denver Options’ motion for directed verdict.

We also reject Omedelena’ contention that because the contract between Denver Options and ITDS was not introduced at trial, we cannot review any of Denver Options’ issues related to it. The contract was included in Denver Options’ motion for summary judgment and is part of the record.

However, we agree with Omedelena that Denver Options did not properly preserve the following three issues for appeal: (1) that it cannot be held liable for intentional interference with contract relations and prospective economic advantage for the mere refusal to deal with ITDS; (2) that the claim of intentional interference with economic advantage required Omedelena to prove, as part of her prima facie case, that defendants interfered with her contract with ITDS by using wrongful means; and (3) that Omedele-na failed to present any evidence concerning Denver Options’ wrongful means. Therefore, we do not address these issues.

Finally, although Omedelena does not raise this issue, to the extent that Denver Options argues that the wrongful means definition provided to the jury was not proper, we decline to review this contention because it is raised for the first time on appeal.

The judgment is affirmed.

Judge MARQUEZ and Judge VOGT concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Janice HALL, Defendant-Appellant.
    No. 00CA0845.
    Colorado Court of Appeals, Div. I.
    April 11, 2002.
    Rehearing Denied July 25, 2002.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Firm of Richard A. Hostetler, Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Janice Hall, appeals the judgment of conviction entered on a jury verdict finding her guilty of first degree murder after deliberation. Defendant’s primary contention on appeal is that the trial court erred in refusing to instruct the jury that before she could be convicted, all jurors had to agree unanimously which of the prosecution’s alternative theories supported the first degree murder count. Because we conclude the trial court did not err, we affirm.

Defendant’s husband (the victim) was shot and killed while he and defendant were on a hunting trip. A witness, who is a deputy sheriff from another state, was camped nearby and heard several gunshots. About thirty minutes later, he saw defendant walking back to her campsite, and the witness noticed shortly afterwards that defendant had changed clothes.

Defendant and the witness then had a conversation during which she denied hearing shots. She stated that her husband had not returned on time and that she was going to look for him. A few minutes later, the witness heard her calling for help. He found her next to the victim’s body, waving the victim’s orange hunting vest and throwing empty bullet shells near the body.

Investigators later discovered a shoe print in the mud near the suspected location of the shooter. The print was consistent with defendant’s boots. The investigation further showed: (1) defendant’s ex-husband had been hunting nearby; (2) he owned the same type of rifle identified as the murder weapon; (3) he had reported it stolen after the hunting trip; (4) defendant had urged the victim to put money in her ex-husband’s bank account to benefit their children; (6) defendant was a skilled hunter and had extensive experience with guns; (6) she and the victim had been married for only three months at the time of his death; (7) she had encouraged him to name her as the primary beneficiary of his life insurance policies; and (8) upon his death, she was to receive over $450,000 in death benefits and assets from his estate.

Approximately three years after the victim’s death, defendant was charged with first degree murder after deliberation. At the jury trial, the prosecution maintained that defendant either had fired the shot that killed the victim or had aided and abetted her ex-husband in killing him.

At the close of the evidence, the trial court submitted those alternative theories to the jury and instructed the jury, as relevant here, it had to find each element of first degree murder was proven beyond a reasonable doubt and the verdict had to be unanimous. However, the court refused defendant’s request that the jury also be instructed that before she could be convicted, all jurors had to agree unanimously which of the prosecution’s alternative theories supported the first degree murder count.

I. Unanimous Verdict

For several reasons, defendant contends the trial court erred in refusing to instruct the jury it was required to reach a unanimous decision whether she was being convicted of first degree murder as the principal or as a complicitor. We reject each of her arguments.

A. Complicity Theory

Defendant first asserts that there is a distinction “between [using] alternative methods or means of committing [first degree murder] and [using] alternative theories of defendant’s status as a party to the offense.” According to defendant, a unanimity instruction was required because complicity is “a definitional distinction pertaining to a party’s status in committing the offense,” rather than an alternative method of committing an offense. We are not persuaded.

Prior Colorado decisions have described complicity as another means or theory of law of committing a single offense. Bogdanov v. People, 941 P.2d 247 (Colo.1997); People v. Fisher, 9 P.3d 1189 (Colo.App.2000); People v. Thurman, 948 P.2d 69 (Colo.App.1997); see also James v. People, 727 P.2d 850 (Colo.1986).

As relevant here, “[a] person commits the crime of murder in the first degree if ... [a]fter deliberation and with the intent to cause the death of a person other than himself [or herself], he [or she] causes the death of that person or of another person.” Section 18-3-102(l)(a), C.R.S.2001.

To commit first degree murder after deliberation as a principal, one actually has to commit the act resulting in the death of another person. However, one also may be held accountable as a complicitor under § 18-1-601, C.R.S.2001, which provides that “[a] person is guilty of an offense if it is committed by the behavior of another person for which he [or she] is legally accountable as provided in sections 18-1-602 to 18-1-607.”

Under § 18-1-603, C.R.S.2001, “[a] person is legally accountable as principal for the behavior of another constituting - a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.”

In view of these statutes and decisions defining complicity, we conclude the trial court did not err in permitting the prosecution to present evidence that defendant committed first degree murder after deliberation either as a complicitor or as a principal. Those alternative legal theories were two means of committing a single offense, and were not an impermissible “definitional distinction pertaining to a party’s status,” as defendant asserts. See Bogdanov v. People, supra; James v. People, supra; People v. Thurman, supra.

B. Federal Right to Due Process

Defendant next contends her right to due process under the United States Constitution was denied because the trial court did not instruct the jury it had to determine unanimously whether she had committed the murder as the principal or as a complicitor. We disagree.

The United States Supreme Court is the final interpreter of the United States Constitution. See Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982); People v. Geisendorfer, 991 P.2d 308 (Colo.App.1999).

Under the Due Process Clause of the United States Constitution, a defendant does not have the right to a unanimous jury verdict in state criminal prosecutions. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). The Supreme Court has stated that even if it is assumed such a right exists, due process does not require unanimity on the various means or theories of committing the single offense charged. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).

In Schad, the defendant was charged in Arizona with one count of first degree murder. The prosecution advanced two theories of how the defendant had committed the offense: premeditated murder and felony murder. Arizona law considered those theories to be equivalent means of committing first degree murder. The jury was instructed on both theories as well as on the requirement that it reach a unanimous verdict.

There, as here, the defendant contended due process was denied because the jury verdict may not have been unanimous as to the theory underlying the defendant’s guilt of first degree murder. However, a plurality of the Supreme Court rejected the argument, concluding the defendant was not denied his right to due process when the jury was instructed it could reach a unanimous verdict on first degree murder without being unanimous on the theory underlying the charged offense. The Court stated: “We see no reason ... why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea.” Schad v. Arizona, supra, 501 U.S. at 632, 111 S.Ct. at 2497, 115 L.Ed.2d at 565.

Accordingly, we reject defendant’s contention that her right to due process under the United States Constitution was denied because the trial court did not instruct the jury it had to determine unanimously whether she had committed the murder as the principal or as a complicitor. The jury was only required to reach a unanimous verdict on the charge of first degree murder, not as to the alternative theories offered in support of the charge. See Schad v. Arizona, supra.

C. Colorado Right to Due Process

Defendant next contends the failure to require unanimity regarding her culpability as a principal or as a complicitor deprived her of her right to due process under the Colorado Constitution, which requires proof beyond a reasonable doubt of every element of a crime. Again, we disagree.

Colo. Const, art. II, § 25 states: “No person shall be deprived of life, liberty or property, without due process of law.”

Defendant urges us to adopt the dissenting view in Schad v. Arizona, supra, and construe the due process clause of the Colorado Constitution to require unanimity on every act underlying an element of a crime. The dissent in Schad would have required unanimity on either premeditated murder or felony murder and not just on the underlying offense of first degree murder. It relied on the rule that due process requires proof beyond a reasonable doubt of every fact necessary to constitute the offense charged. The dissent reasoned that the alternative theories required different courses of conduct, thus demanding proof of different facts in support of each theory. Schad v. Arizona, supra, 501 U.S. at 653, 111 S.Ct. at 2508, 115 L.Ed.2d at 579 (White, J., dissenting) (“[WJhile these two paths both lead to a conviction for first-degree murder, they do so by divergent routes possessing no elements in common except the fact of a murder.”).

On a few occasions, the Colorado Supreme Court has extended rights protected under the state constitution beyond those protected by the federal constitution. See People ex rel. Julian v. District Court, 165 Colo. 253, 439 P.2d 741 (1968) (recognizing more extensive due process right regarding burden of proof under Colorado Constitution than under federal constitution); People in Interest of A.C., 991 P.2d 304, 307 (Colo.App.1999) (“[Ejxtending rights protected under our state constitution beyond those protected by the federal constitution has been largely within the domain of the supreme court.”), aff'd, 16 P.3d 240 (Colo.2001). However, we perceive no basis for doing so here.

In Thomas v. People, 803 P.2d 144 (Colo.1990), the court considered whether the defendant’s right to due process was violated by the trial court’s refusal to require the prosecution to designate the acts that formed the basis of the charged offense. There, the defendant was charged with and convicted of two counts of sexual assault on a child. Each count related to a different victim, and the two victims testified to multiple sexual contacts by the defendant over a period of several years. The trial court denied the defendant’s request that the prosecution be required to elect the acts on which it was relying as the basis for the charged offense. The trial court also refused the defendant’s request to instruct the jury it had to agree unanimously on one or all of the acts to which the victims testified.

On appeal, the supreme court concluded that the trial court had violated the defendant’s due process rights in failing to instruct the jury regarding the need for unanimity as to one or all of the acts, but that the error was harmless beyond a reasonable doubt because the jury verdicts reflected unanimity. The court explained that the trial court had required the prosecution to elect a particular type of act as to each victim, that the evidence suggested the sexual contacts were repeated over many years, that the defense theory was a general denial that any of the acts had occurred, and that “[t]he evidence presented no rational basis for some jurors to predicate guilt on one act while other jurors based it on another.” Thomas v. People, supra, 803 P.2d at 155.

The Thomas court further stated:

[WJhen the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance. If the prosecutor decides not to designate a particular instance, the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged. Necessarily, the determination whether there is a reasonable likelihood that jurors may disagree on which acts the defendant committed requires the exercise of discretion by the trial court. In some instances, special verdicts may be advisable to provide assurance that a verdict is supported by unanimous jury agreement.

Thomas v. People, supra, 803 P.2d at 153-54 (footnote omitted).

Other decisions have held the jury must be unanimous only as to the elements of the crime charged, even though the evidence demonstrated that various acts by the defendant could have established those elements under different theories of culpability. See James v. People, supra; People v. Lawrence, 55 P.3d 155 (Colo.App.2001); People v. Thurman, supra; People v. Lewis, 710 P.2d 1110 (Colo.App.1985). Those cases have held a jury may return a general verdict of guilty when the trial court instructs on alternative theories or means of committing the crime.

In James v. People, supra, the defendant was charged with one count of first degree sexual assault. However, the prosecution presented three different methods or theories by which the defendant may have committed that offense. Further, the jury was instructed it could convict the defendant “if he had knowingly inflicted sexual penetration upon the victim by causing her to submit to him in one of three ways: (1) application of physical force or violence, (2) threat of imminent death, or (3) threat of future retaliation.” James v. People, supra, 727 P.2d at 853.

The three theories each required distinct acts that constituted the same crime, and the jury’s verdict was returned on a general verdict form that did not specify upon which of the alternatives the verdict was reached.

On appeal, the defendant contended his due process rights were violated because the court was unable to determine upon which of the three theories the jurors based their verdict. The defendant claimed the evidence “was insufficient to justify a finding by the jury that every element of each alternative method of committing the charged offense had been proven beyond a reasonable doubt.” James v. People, supra, 727 P.2d at 852. Thus, the issue on appeal was “whether each alternative [theory] must be supported by proof sufficient to permit a jury to find the defendant guilty beyond a reasonable doubt.” James v. People, supra, 727 P.2d at 854-55.

The supreme court concluded the jury could return a general verdict of guilty on a single count alleged to have occurred under alternative theories without depriving the defendant of the right to a unanimous verdict. However, each theory presented had to be supported by sufficient evidence. If there were insufficient evidence of any alternative theory, the general verdict had to be set aside. James v. People, supra.

In summary, the defendant’s right to due process is violated if: (1) the prosecution alleges multiple acts that could constitute the charged offense; (2) only one theory of culpability is presented; and (3) no modified unanimity instruction is given. Nevertheless, the failure to give such a unanimity instruction may be harmless beyond a reasonable doubt if the reviewing court is convinced the jury verdicts reflect unanimous agreement. See Thomas v. People, supra.

Further, where the jurors unanimously agree the defendant committed the charged crime, unanimity is not required as to the underlying acts, as long as the prosecution presents alternative theories and each theory is supported by sufficient evidence. See James v. People, supra.

In light of these decisions by the Colorado Supreme Court, we reject defendant’s contention that we should adopt the reasoning of the dissent in Schad v. Arizona, supra.

People v. Thurman, supra, offers additional guidance in resolving the issue before us. There, as here, the defendant maintained that the trial court erred in allowing the jury to return a general verdict of guilty when it was instructed on the prosecution’s alternate theories: that the defendant was guilty either as a principal or as a complicitor. There, as here, the trial court also did not require the prosecution to elect which theory it was submitting to the jury, nor was the jury given a modified unanimity instruction requiring agreement on one theory or the other. People v. Thurman, supra.

The panel in Thurman rejected the defendant’s challenge to the general verdict of guilty, concluding that “when a defendant is charged with alternative means of committing the same offense within a single count, not with two distinct offenses in separate counts, and evidence is presented regarding a single transaction, the prosecution is not required to select a single alternative.” People v. Thurman, supra, 948 P.2d at 71.

Although Thurman did not address whether the failure to require unanimity on the particular theory of defendant’s participation in the offense was a violation of due process, the panel applied essentially the same rule established in James. Thus, the holding of Thurman supports our conclusion that a modified unanimity instruction was not required under the present circumstances.

Because the jury was instructed it could convict defendant as a principal or as a com-plicitor and was given a general verdict form, individual jurors could have convicted defendant based on differing theories,. However, the jury was also instructed that every element of the offense had to be proved beyond a reasonable doubt before a verdict of guilty could be returned and that it was required to reach a unanimous verdict. Defendant has not challenged the sufficiency of the evidence supporting either theory, and as long as the prosecution presented sufficient evidence to support both theories, we must uphold the conviction as being supported by proof beyond a reasonable doubt. See James v. People, supra.

Our conclusion that a modified unanimity instruction was not required here is further supported by the decisions of courts in other jurisdictions that have addressed similar issues. See People v. Sutherland, 17 Cal.App.4th 602, 617, 21 Cal.Rptr.2d 752, 761 (1993)(“[N]o unanimity instruction is required to prevent a less than unanimous verdict where the evidence independently proves acts which support the defendant’s liability either as a principal or as an aider and abettor.”); People v. Smielewski, 235 Mich.App. 196, 596 N.W.2d 636 (1999)(jury may return a general verdict of guilty when instructed on both theories of principal liability and aiding and abetting); Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997)(no error occurred when jury was presented with theories of premeditated murder, felony murder, and aiding and abetting without requiring unanimity on one particular theory); Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288, 292-93 (1979)(“Unanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.”).

In each of the cited cases, the court concluded the jury may return a general verdict of guilty when instructed on theories of both principal and complicitor culpability.

We therefore conclude that while due process requires a unanimous verdict under certain circumstances, those circumstances are not present here.. The unanimity and reasonable doubt instructions given here were proper, and a modified unanimity instruction was not required. Accordingly, defendant’s constitutional right to due process was not violated.

D. Colorado Right to a Jury Trial

Defendant next contends the failure to require unanimity regarding her culpability as the principal or as a complicitor violated her right to a jury trial under Colo. Const, art. II, § 23. She urges us to construe that section to include the right to a unanimous verdict. We are not persuaded.

Colo. Const, art. II, § 23 provides in relevant part: “The right of trial by jury shall remain inviolate in criminal cases.... ”

There is a statutory right to a unanimous verdict in Colorado. See §§ 16-10-108, 18-1-406(1), C.R.S.2001 (requiring unanimous jury verdicts); see also Crim. P. 23(a)(8). However, the Colorado Constitution does not explicitly guarantee the right to a unanimous jury verdict. Although due process requires a unanimous verdict under certain circumstances, as discussed above, no Colorado cases have explicitly held that the Colorado Constitution includes such a right.

Defendant nonetheless argues that because the Colorado Constitution was based largely on the Illinois Constitution, we should adopt Illinois decisions construing its constitution to include the right to a unanimous jury verdict. We are not persuaded.

The 1870 Illinois Constitution was in effect at the time our constitution was ratified. The language in the 1870 Illinois Constitution, which is currently contained in Ill. Const, art. I, § 13, provides that as to criminal defendants, “the right of trial by jury as heretofore enjoyed shall remain inviolate.” (emphasis added).

The Illinois Supreme Court has held “[t]he right protected by [each of the Illinois Constitutions of 1818, 1848, and 1870] was the right of trial by jury as it existed at common law,” and at common law, the right to a jury trial included the right to a unanimous verdict. George v. People, 167 Ill. 447, 455-57, 47 N.E. 741, 743-44 (1897); see also People v. Strain, 194 Ill.2d 467, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000)(Illinois Constitution includes the right to a unanimous jury verdict).

Unlike the Illinois Constitution, Colo. Const, art. II, § 23, the right to jury trial provision, is not qualified by the “as heretofore enjoyed” language. We acknowledge the Illinois Constitution of 1818 stated “that the right of trial by jury shall remain inviolate,” which is identical to language contained in the Colorado Constitution. We further acknowledge the Illinois Supreme Court, in George v. People, supra, 167 Ill. at 455, 47 N.E. at 743, did not find “any substantial difference between the provisions” in the Illinois constitutions of 1818, which did not contain the “as heretofore enjoyed” language, and that of 1870, which did contain such language.

Nevertheless, we view it as significant that the framers of our state constitution omitted the “as heretofore enjoyed” language contained in the Illinois Constitution. See Ace Flying Service, Inc. v. Colorado Department of Agriculture, 136 Colo. 19, 314 P.2d 278 (1957)(Moore, C.J., specially concurring)(provisions in the Colorado Constitution that deviate from the Illinois Constitution must be regarded as indicating an intention to depart from the interpretations of the Illinois provision).

If that language had been included, it would have required that we look to and incorporate within our constitution the common law right to a unanimous verdict. However, in view of the difference in the language of the Colorado and Illinois constitutions, we are not persuaded by defendant’s argument that we should apply Illinois law and construe the Colorado Constitution to include a right that is not included in the text and that the Colorado Supreme Court has not yet recognized.

We therefore conclude defendant was not deprived of her rights under Colo. Const, art. II, § 23.

In so holding, we observe that in some of the above-cited cases in which the court has held the jury may return a general verdict of guilty when instructed on theories of both principal and complicitor culpability, the state constitution has provided the defendant in a criminal case the right to a unanimous jury verdict. See People v. Sutherland, supra.

II. Mental State Evidence

We also reject defendant’s contention that the trial court abused its discretion in allowing testimony that she had suffered from multiple personality disorder, but was not suffering from it at the time of the murder.

A trial court’s admission of evidence will not be overturned unless it abused its discretion. People v. Mossmann, 17 P.3d 165 (Colo.App.2000). Under this standard, we will not overturn the trial court’s eviden-tiary ruling unless it was manifestly arbitrary, unreasonable, or unfair. People v. Melillo, 25 P.3d 769 (Colo.2001).

CRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 402 requires that evidence be relevant before the trial court may admit it. People v. Mossmann, supra.

As pertinent here, under CRE 403, “[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

CRE 404(a) provides in relevant part:

Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same....

CRE 404(b) provides in relevant part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”

After the homicide was committed in this case, the police conducted an office interview with defendant. She reported that during a flashback, she had seen the victim being shot four times. The officer then asked defendant whether she had ever suffered from multiple personality disorder. She said she had, but she claimed to have been cured by the time of the murder.

At trial, defendant contended such evidence was irrelevant because she had not raised the issue of diminished mental capacity and also was “improper bad character evidence.” However, the prosecution’s theory was that defendant gave a number of false and inconsistent statements to law enforcement officials after the homicide and that her purpose in mentioning her alleged multiple personality disorder was to explain why her statements had been inconsistent. The trial court concluded the testimony was relevant and admitted it.

We disagree that because defendant failed to raise the issue of diminished mental capacity, this evidence was irrelevant. Defendant’s statement to the officer regarding her multiple personality disorder had probative value, given the prosecution’s theory that defendant had covered up her involvement in the crime, and her own description of her mental state at the time of the offense made it more probable that she had intentionally caused the death of the victim. The statement was thus relevant to show defendant had committed first degree murder as a principal, which requires specific intent and deliberation.

Nor do we agree with defendant that the danger of unfair prejudice substantially outweighed the probative value of the evidence. This particular evidence constituted a very brief part of a fifteen-day trial, and only the officer who elicited the statement from defendant concerning her multiple personality disorder testified about the issue. Thus, while the relevance of the evidence may not have been great, we perceive no abuse of discretion by the trial court in allowing the officer’s testimony.

Finally, we observe that CRE 404(b) only applies to “[e]vidence of crimes, wrongs, or acts.” The eyidence of multiple personality disorder related to defendant’s mental state at the time of the murder, not to any of her actions. Thus, we conclude CRE 404(b) does not apply to this evidence.

Judgment affirmed.

Judge METZGER and Judge KAPELKE concur.


text:
    Rosemary C. MARTINEZ, Plaintiff-Appellee, v. WELD COUNTY SCHOOL DISTRICT RE-1, Defendant-Appellant.
    No. 01CA0699.
    Colorado Court of Appeals, Div. A.
    April 25, 2002.
    Certiorari Denied Jan. 13, 2003.

      Jennifer L. Donaldson, Denver, Colorado; Law Office of Patricia M. Jarzobski, Patricia M. Jarzobski, Denver, Colorado, for Plaintiff-Appellee.
    Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Eric M. Ziporin, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge TAUBMAN.

Defendant, Weld County School District RE-1 (School District), appeals the trial court’s order denying its motion to dismiss, on sovereign immunity grounds, the claims brought against it by plaintiff, Rosemary C. Martinez. We affirm.

On the evening of December 10, 1998, Martinez attended a winter program at a high school operated by the School District. Martinez was injured when she slipped and fell on ice on a sidewalk near an entrance to the high school.

Martinez sued the School District, alleging that a dangerous condition existed that was caused by the School District’s negligent failure to remove or mitigate an accumulation of snow and ice on the sidewalk where she fell.

The School District moved to dismiss Martinez’s claim for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2001. The School District argued that Martinez could not establish a waiver of immunity under § 24-10-106(l)(d)(III), C.R.S. 2001, with respect to any accumulation of snow and ice on the sidewalk.

Following an evidentiary hearing, the trial court found that the accumulated ice constituted a dangerous condition because it had blocked a majority of the sidewalk and that there was a public function at the school on the night that Martinez fell. The court also found that the School District had knowledge and notice of the dangerous condition and that the ice physically interfered with public access on the dimly lit walk leading to the school. In addressing whether the School District had failed to use existing means available for removal or mitigation, the court found that the School District’s failure to set out available caution signs was sufficient to establish a failure to mitigate. Accordingly, the court denied the School District’s motion to dismiss. This appeal followed.

I. Applicable Standards

Except in certain limited circumstances, the GIA provides that a governmental entity is immune from liability for all actions which lie in tort or could lie in tort. See §§ 24-10-105, 24-10-106, 24-10-108, C.R.S.2001; City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996); Bresciani v. Haragan, 968 P.2d 153 (Colo.App.1998). Because governmental immunity is in derogation of Colorado’s common law, the GIA’s immunity provisions are strictly construed, and the GIA’s waiver provisions are construed deferentially in favor of victims injured by the alleged negligence of governmental agents. Walton v. State, 968 P.2d 636, 643 (Colo.1998).

As pertinent here, § 24-10-106(l)(d)(III), waives a public entity’s immunity for injuries resulting from:

A dangerous condition caused by an accumulation of snow and ice which physically interferes with public access on walks leading to a public building open for public business when a public entity fails to use existing means available to it for removal or mitigation of such accumulation and when the public entity had actual notice of such condition and a reasonable time to act.

A motion to dismiss under the GIA involves the trial court’s subject matter jurisdiction to hear the action and is properly resolved pursuant to C.R.C.P. 12(b)(1). Swieckowski v. City of Fort Collins, 934 P.2d 1380 (Colo.1997). The burden of proving subject matter jurisdiction under the GIA is on the plaintiff. Capra v. Tucker, 857 P.2d 1346 (Colo.App.1993).

A trial court may hold an evidentiary hearing to resolve any factual dispute concerning its jurisdiction under the GIA. See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). The trial court’s resolution of these factual disputes is reviewed for clear error. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993).

II. Dangerous Condition

The School District contends that the trial court erred in finding that the ice upon which Martinez fell constituted a dangerous condition as defined by § 24-10-103(1), C.R.S.2001. Specifically, the School District contends that a dangerous condition did not exist because (1) it followed the snow removal policies it had in effect; (2) any dangerous condition resulted from the school’s design and therefore fit within a statutory exception; and (3) any dangerous condition was attributable to the “mere existence” of ice on the sidewalk, another statutory exception. We conclude that, for the purpose of the School District’s C.R.C.P. 12(b)(1) motion, Martinez adequately established the existence of a dangerous condition.

To establish that a dangerous condition exists under § 24-10-103(1), an injured party must show that the injury occurred as a result of the (1) physical condition of a public facility or the use thereof, (2) which constituted an unreasonable risk to the health or safety of the public, (3) which was known to exist or should have been known to exist in the exercise of reasonable care, and (4) which was proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. See Walton v. State, supra; Smith v. Town of Snowmass Village, 919 P.2d 868 (Colo.App.1996).

A.

Initially, we reject the School District’s contention that merely because it had followed its own policies and procedures regarding snow removal, the ice could not have constituted a dangerous condition.

As the trial court found, the accumulated ice was hazardous because it covered a majority of the sidewalk, and it was present on the night of the winter program. Consequently, a person who attended the program was required to traverse the ice in a dimly lit area to get into the school. The trial court also noted that it was unclear whether the School District had applied ice melt in sufficient quantity and frequency. However, the court found that “[bjecause of the continued drainage and the continued freezing, application of the ice melt did not and would not eliminate the problem.”

Thus, the School District’s adherence to its snow removal policies and procedures does not prevent a finding that the dangerous condition was proximately caused by its failure to maintain the sidewalk.

Therefore, even though the School District had followed its reasonable procedures, the court did not err in denying the School District’s motion to dismiss. See Springer v. City & County of Denver, 13 P.3d 794, 801 (Colo.2000)(court noted that under § 24-10-106(1), “a public entity lacks immunity, not because it necessarily causes a dangerous condition, but because it is in a position to discover and correct the condition”).

B.

We also reject the School District’s contention that the trial court essentially found that the presence of ice was caused by the design of the facility.

The School District points out that a dangerous condition, as defined in § 24-10-103(1), may not be caused solely by the inadequate design of a facility. However, in its ruling, the trial court noted that the location of Martinez’s fall “was known as a problem area because of the design, [and] the build-up of ice was a chronic and continuing problem.” Thus, the trial court did not find that the dangerous condition was caused solely by the design of the facility.

C.

We reject the School District’s related contention that the trial court should have dismissed the action because the mere existence of snow and ice does not constitute a dangerous condition. As noted above, the trial court ruled that a dangerous condition was present based on several factors in addition to the existence of the ice.

D.

We also reject the School District’s contention that the trial court’s bases for determining that a dangerous condition existed were unrelated to the statutory definition of dangerous condition.

In concluding that a dangerous condition existed, the trial court found that the ice blocked the majority of the sidewalk and that there was a function that night to which the public was invited. The occurrence of a public function on the night of Martinez’s fall was relevant to whether there was an unreasonable risk to the health or safety of the public. On the one hand, if no public function had been scheduled for that evening, the School District arguably would not have borne the same degree of responsibility to maintain the sidewalk free of ice accumulation or to mitigate the effect of such ice. On the other hand, when the School District scheduled the public function, its duty to exercise reasonable care necessarily required that it take into account that attendees of the public function would have to walk along the sidewalk covered with ice.

We also disagree with the School District’s contention that, even assuming it was aware of the ice on the sidewalk that evening, such condition was not “proximately caused by the negligent act or omission of the public entity in ... maintaining such facility” as required by § 24-10-103(1). Here, Martinez presented sufficient evidence to establish the existence of a dangerous condition as described above. Whether that condition was proximately caused by a negligent act of the School District will be determined on remand.

Accordingly, we conclude that the trial court properly determined that Martinez established the existence of a dangerous condition.

III. Removal or Mitigation of Ice

The School District next contends that the trial court erred in concluding that by not using caution signs, it did not use existing means available to it to remove or mitigate the danger caused by the ice. We disagree.

Here, the trial court relied on Mason v. Adams, 961 P.2d 540 (Colo.App.1997), in reaching that conclusion. In Mason, a division of this court analyzed whether a public .entity’s immunity was waived under § 24-10 — 106(l)(d)(I), C.R.S.2001, for a dangerous accumulation of sand or gravel on a public highway when the public entity had actual notice and a reasonable time within which to act. The division determined that although the public entity’s failure to post warning signs alone could not establish a dangerous condition, that failure was relevant to whether the entity had used existing means available to it to mitigate the danger and also relevant in apportioning fault between the parties.

We agree with the analysis in Mason. Although Mason concerned § 24-10-106(l)(d)(I), the relevant language in that section is almost identical to the language at issue here in § 24 — 10—106(l)(d)(III). Accordingly, we conclude that the reasoning in Mason is equally applicable to this action. Likewise, we decline the School District’s suggestion that we conclude Mason was wrongly decided.

Therefore, contrary to the School District’s contention, we conclude that evidence concerning the use of warning signs is relevant to whether the School District used existing means available to it to remove or mitigate the danger posed by the accumulation of ice, and the trial court did not err in determining that the signs could have been used to mitigate the danger created by the ice.

IV. Actual Notice

The School District also contends that the trial court erred in finding that it had actual notice of the dangerous condition caused by the ice. We are not persuaded.

The term “actual notice” is not defined in the GIA. However, a division of this court has defined “actual notice” under the GIA as “such notice as is positively proved to have been given to a party directly and personally, or such as the party is presumed to have received personally because the evidence within the party’s knowledge was sufficient to put the party upon inquiry.” Seder v. City of Fort Collins, 987 P.2d 904, 908 (Colo.App.1999) (quoting Powder Mountain Painting v. Peregrine Joint Venture, 899 P.2d 279, 281 (Colo.App.1994)); see also Luenberger v. City of Golden, 990 P.2d 1145 (Colo.App.1999) (mere fact that city had not received prior notice of the precise harm that occurred does not compel the conclusion that it did not have either constructive or actual knowledge of the alleged dangerous condition); Mason v. Adams, supra (if the dangerous condition was a foreseeable consequence of the public entity s action, the public entity could be found negligent, and its negligence would still be a proximate cause of the dangerous condition).

Here, the trial court found that the particular place where Martinez fell was known to be a problem area and that the build-up of ice there was a chronic and continuing problem. The court also determined that the School District had notice and knowledge of the condition, and even if the School District did not have knowledge of the accumulation of ice the day that Martinez fell, it knew from prior experience that ice would accumulate at that location and would cause that condition.

Therefore, given the trial court’s findings, which are supported by the record, we conclude that it did not err in determining that Martinez had established that the School District had actual notice of the dangerous condition.

The order is affirmed.

Justice KIRSHBAUM and Judge STERNBERG concur.