dissenting.
Because I conclude the jury was properly instructed, I respectfully dissent.
It is within the sound discretion of the trial court to determine the form and style in which instructions will be given to the jury. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996).
However, the interpretation of a statute is a question of law that an appellate court reviews de novo. Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654 (Colo.2000).
In construing statutes, our primary duty is to give full effect to the intent of the General Assembly. Accordingly, we start with the plain language of the statute. “[I]f courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assem*498bly meant what it clearly said.” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005) (quoting Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218-19 (Colo.2002)). Courts must construe the statute as a whole in order to give consistent, harmonious, and sensible effect to all its parts. Carlson v. Ferris, 85 P.3d 504, 508 (Colo.2003).
In enacting the Equine Activities Statute (EAS), the General Assembly expressly stated:
The general assembly recognizes that persons who participate in equine activities ... may incur injuries as a result of the risks involved in such activities. The general assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. It is, therefore, the intent of the general assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities.
Section 13-21-119(1), C.R.S.2005.
Under the statute, “inherent risks of equine activities” include a number of things, but are not limited to: “(I) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; [and] (II) The unpredictability of the animal’s reaction to such things such as sounds, sudden movement, and unfamiliar objects, persons, or other animals.” Section 13-21-119(2)©, C.R.S.2005.
To encourage equine activities, the EAS provides, “an equine activity sponsor ... shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.” Section 13-21-119(3), C.R.S.2005. Section 13-21-119(4), C.R.S.2005, then carves out certain exceptions to this broad grant of immunity. Thus, the EAS provides immunity to an equine activity sponsor unless that sponsor’s conduct falls within the legislatively prescribed exceptions.
The portion of the statute at issue here reads as follows:
Nothing in subsection (3) of this section shall prevent or limit the liability of ... any ... person if the ... person ... [provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity ... and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability.
Section 13-21-119(4)(b)(I)(B), C.R.S.2005 (emphasis added).
Here, as the majority notes, the jury instruction stated that for plaintiff to recover from defendants, the jury “must find that all of the following three statements have been proved”:
(1) the plaintiff had injuries, damages, and losses; and (2) the defendants: (a) provided the animal to the plaintiff; and (b) failed to make reasonable and prudent efforts to determine the ability of the plaintiff to engage safely in the equine activity; and (c) failed to determine the ability of the plaintiff to safely manage the particular animal based on the participant’s representations of her ability; and (3) the defendants’ failure to make reasonable and prudent efforts to determine the ability of the plaintiff to engage safely in the equine activity and determine the ability of plaintiff to safely manage the particular animal based on the participant’s representations of her ability was a cause of the plaintiffs injuries, damages, and losses.
Here, plaintiff challenges only the use of the conjunctive “and” in the instruction. She asserts that the plain language of § 13 — 21— 119(4)(b)(I)(B) imposes a two-pronged duty on a person providing a horse to another to ensure both (1) that the participant was matched with a proper horse and (2) that the rider was placed in an appropriate activity for his or her abilities. According to plaintiff, a failure to do one or the other gives rise to liability. I disagree and conclude that the plain language of the statute supports the jury instruction given.
Defendants presented extensive evidence regarding their observations of plaintiffs abilities, Badger, and the day’s events, and they specifically argued for the instruction given. In my view, § 13-21-119(4)(b)(I)(B) plainly states that nothing prevents or limits *499liability of a person if that person failed “to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity ... and determine the ability of the participant to safely manage the particular animal” (emphasis added).
That the General Assembly meant “and” in this subsection is supported by comparison to other exceptions under § 13-21-119(4). Other exceptions to immunity under the EAS contain “subexceptions” that are joined by the use of the word “or.” For example, § 13 — 21—119(4)(b)(I) provides that nothing prevents or limits liability of a person if that person
(A) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty ... or
(B) Provided the animal and failed to make reasonable and' prudent efforts to determine the ability of the participant to engage safely in the equine activity ... and determine the ability of the participant to safely manage the particular animal.
(Emphasis added.) Therefore, the language of the statute ánd the plain and ordinary meaning of the words compel me to reject plaintiffs proffered interpretation.
Further, the jury instruction correctly tracks the language of the statute. See People v. Jacobs, 91 P.3d 438 (Colo.App.2003)(an elemental jury instruction tracking the language of the applicable statute is almost always sufficient).
The majority is persuaded by plaintiffs argument that the statutory construction adopted by the trial court would lead to unjust and illogical results. The majority suggests that the failure to inquire into the participant’s ability to engage safely in the equine activity and the failure to inquire into the participant’s ability to manage the particular animal are both outside the inherent risks of equine activity. While the majority focuses on a failure to inquire, the statute states “failed to make reasonable and prudent efforts to determine.” The majority then concludes that “or” is properly substituted for “and” in order to avoid an unreasonable result and to give effect to the legislative intent. Because I do not agree that the plain language of the statute is inconsistent with the intent of the legislature, I respectfully disagree with the majority’s analysis.
The General Assembly’s use of the word “and,” instead of “or,” is presumed to be in the conjunctive sense unless the legislative intent is clearly to the contrary. See, e.g., Armintrout v. People, 864 P.2d 576, 581 (Colo.1993).
In Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo.2001), the supreme court held:
It is true that when construing a statute, courts must not follow statutory construction that leads to an absurd result.... However, our concern is with the absurdity of the resulting interpretation. We do not generally imagine other possible applications of the interpretation in determining whether the result is absurd. Rather, we consider whether the resulting interpretation is inconsistent with the purposes of the legislation.
Town of Erie v. Eason, supra, 18 P.3d at 1276 (citations omitted).
Here, given that the intent of the General Assembly in enacting the EAS was to encourage equine activities by limiting the civil liability of those involved in such activities, see § 13-21-119(1), I conclude that the plain language of the statute is consistent with the purposes of the legislation.
While the majority engages in a discussion concerning what are and are not “inherent risks” of equine activities, it is § 13-21-119(4)(b)(I)(B) that defines the conditions of immunity here. Ultimately, it is the legislative intent that governs. See Town of Erie v. Eason, supra. To reach its result, the majority must rewrite the statute, and that is not an avenue open to the courts.