Clyncke v. Waneka

Justice EID,

dissenting.

The court of appeals acknowledged that, in order to reach the result adopted by the majority today, it would have to change the "and" in the language of section 13-21-119(4)(b)(D(B), C.R.S. (2006), to an "or," but held that such a change was necessary because of policy considerations. Waneka v. Clyncke, 134 P.3d 492, 497 (Colo.App.2005). The majority, by contrast, finds that it can reach the same result without rewriting the statute. Because I believe that a change from "and" to "or" is in fact required to reach the majority's outcome, and because I believe such a change is improper, I respectfully dissent.

The language of the statute states:

[(4)] (b) Nothing in subsection (8) of this section shall prevent or limit the liability of an equine activity sponsor ... if the [sponsor] ...:
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[ (D)] (B) Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the [activity] ... and determine the ability of the participant to safely manage the particular animal based on the participant's representations of his ability....

§ 18-21-119 (emphasis added). In order to reach the conclusion that a defendant sponsor is not exempt from liability if he either fails to make reasonable and prudent efforts to match the participant to the activity or the participant to the animal, the majority recasts the language of subsection (4)(b) and subsection (4)(b)(I)(B) from the negative to the affirmative (that is, from "nothing shall prevent liability" if "the sponsor fails to do X and Y," to "the sponsor is exempt from liability" if "he does X and Y"). In other words, according to the majority, the statute says that "the sponsor is exempt from civil Hability ... if he did X and Y." Maj. op. at 1078. Thus, the majority concludes that the defendant sponsor is exempt from liability under section 18-21-119(4)(b)(I)(B) only by making reasonable and prudent efforts to both match the participant to the activity, and the participant to the animal. Id.

Despite its assertions to the contrary, the majority's methodology is difficult to square with any notion of "plain language" statutory interpretation. Id. at 1074. The statute as written begins with an exemption from liability in subsection (8) and then withdraws that exemption upon the satisfaction of the elements set forth in subsection (4)(b)(D(B). By inverting the statutory language, the majority erases the baseline of exemption. Inverting the language changes the statutory *1081elements into requirements that equine activity sponsors must satisfy completely in order to achieve exemption, rather than actions that, if committed by defendants, cause them to lose exemption.

The majority also fails to correctly apply its own methodology, because it recasts only a portion of the statutory language to the affirmative. The majority focuses exelusively on the "fails to do X and Y" language, but subsection (4)(b)(D(B) does not begin with "fails to do X and Y"; rather, it starts with "Provided the animal...." Thus, to recast the entire provision from negative to affirmative, one would actually have to say "the sponsor is exempt from liability if he did not provide the animal and he did X and Y." If you recast one portion of the statutory language from negative to affirmative, you have to change all of it. But onee you do that, the statutory language no longer makes sense; indeed, the one thing that all the parties agree upon is that the defendant sponsor has to provide the animal. Maj. op. at 1078 n. 12.

The majority's interpretive sleight of hand works only if the "Provided the animal" portion of subsection (4)(b)(D(B) is ignored. The majority does not consider the "Provided the animal" language in conjunction with its "negative-affirmative" methodology. Instead, it simply refers to a defendant sponsor "who provides the animal," and then states that such a sponsor is exempt "if he did X and Y." Id. at 1078 (emphasis added). But there is no "who provides the animal" language in subsection (4)(b). In the end, the majority simply rewrites the statutory language to assume away the difficulties with its interpretation.

The majority's interpretation is also incompatible with the overall structure of the statute. There is no dispute that subsection (8) creates a broad exemption from lability for sponsors of equine activities for injuries resulting from the inherent risks of equine activities. Maj. op. at 1077 (citing § 18-21-119(3)). Subsection (4)(b) then states that "Nothing in subsection (8) of this section shall prevent or limit the liability of [the defendant] ... if the [defendant]: ...." The fact that subsection (4)(b) ends with a colon signals that the language that follows will describe situations to which the exemption of subsection (8) does not apply. One such situation is set forth in subsection (4)(b)(I)(B), in which the defendant must have "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." § 18-21-119(4)(b)(D(B) (emphasis added).

The majority doesn't take issue with the first "and" as connecting two actions that the defendant must have taken (provided the animal and failed to make reasonable and prudent efforts to match the participant to the activity) for the exemption not to apply. The second "and" serves the same function by connecting the second and third actions a defendant sponsor must take (or fail to take) for the exemption not to apply. Thus, in order for the exemption not to apply under subsection(4)(b)(ID)(B), the defendant sponsor must have (1) provided the animal, and (2) failed to make reasonable and prudent efforts to match the participant to the activity, and (8) failed to make reasonable and prudent efforts to match the participant to the animal. The majority, improperly in my view, changes the second "and" to "or" by holding that the plaintiff need show only (2) or (8) for the exemption not to apply. Maj. op. at 1078. The majority therefore has not found "plain language" missed by the court of appeals, as it suggests, see id. at 1074, but rather has simply altered the plain meaning by changing the "and" to an "or."

The opinion concurring in the judgment only, by contrast, suggests that there are two reasonable readings of the statute: mine, and one that would interpret the second "and" in subsection (4)(b)(D(B) as linking two separate parts of a single duty. Cone. op. at 1079-80. Under this latter interpretation, the defendant's failure to perform either part of the duty would mean the defendant failed to perform the single duty in its entirety. The concurring opinion would adopt the "single duty" interpretation, and thus reach the same result as the majority, because it would *1082be "anomalous" to "shield [defendant sponsors] unless they unreasonably expose their clients to danger in both ways simultaneous-1y." Id. at 1080.

While I believe the concurring opinion's interpretation is closer to the mark than the majority's because it attempts to read "and" as "and," ultimately I am not persuaded. There is nothing in the language that would cause the reader to understand that the see-ond "and" links two parts of a single duty. On the contrary, as the majority points out, "[the phrase 'failed to [make reasonable and prudent efforts] modifies both" the phrase "determine the ability of the participant to engage safely in the [activity]" and "determine the ability of the participant to safely manage the particular animal based on the participant's representations of his ability." Maj. op. at 1078.

Nor does there appear to be any background principle in equine law or usage supporting the "single duty" interpretation. On the contrary, the pre-statutory caselaw describes a duty to match the rider to the animal, but says nothing about a duty to match the rider to the activity. See Shandy v. Sombrero Ranches, Inc., 525 P.2d 487 (Colo.App.1974) (not selected for publication). Prior to the statute's adoption, Colorado caselaw recognized that a defendant sponsor could be held liable for the failure to properly match a rider with an appropriate horse. See id. Had the legislature wanted to ensure that a defendant sponsor did not receive an exemption from civil lability under such circumstances, it could have simply referenced the failure to match rider with horse in subsection (4)(b)(D(B). The legislature chose, however, to include additional language about matching the rider to the activity. This is further evidence that the two clauses should be read separately.

Additionally, while the concurring opinion points out that the two clauses are related because they both go to assessing the participant's ability, cone. op. at 1080, they remain two separate assessments. In this case, for example, the plaintiff presented expert testimony that she did not have the ability to engage in the particular activity (a horse roundup), and furthermore, that she was insufficiently experienced to handle the particular horse provided to her by the Clynckes. See Waneka, 134 P.3d at 495; maj. op. at 1075.

Finally, I disagree with the concurring opinion that reading the two clauses as two separate duties, both of which the defendant sponsor must fail for the exemption not to apply, would be "anomalous." In adopting the statute, the General Assembly "recognize{d] that persons who participate in equine activities ... may incur injuries as a result of the risks involved in such activities." § It also found "that the state and its citizens derive numerous economic and personal benefits from such activities." Id. Finally, it stated that "[it is ... the intent of the general assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities." Id. My reading, which requires a defendant sponsor to fail two separate duties before the statutory exemption is lost, is entirely consistent with the purpose of the statute as stated in the statutory language itself.

The General Assembly had a choice of using "and" or "or" when it adopted the language at issue today. Numerous other jurisdictions chose "or" in their statutes;1 Colorado chose "and." Because I believe that choice has a meaning that we must follow, I would reverse the court of appeals and respectfully dissent from the court's opinion.

I am authorized to state that Justice RICE joins in this dissent.

. These jurisdictions are Florida (Fla.Stat. § 773.03(2)(b) (2006)), Minnesota (Minn.Stat. § 604A.12(3)(1) (2006)), Ohio (Ohio Rev.Code. § 2305.321(B)(2)(b) (2006), New Mexico (N.M.Stat. § 42-13-4(C)(2) (2006)), North Carolina (N.C.Gen.Stat. § 99E-2(b)(2) (2006)), and Wisconsin (Wis.Stat. § 895.481(3)(b) (2006)).