February 27, 2007
Three Way Split on what "And" Means
The word “and” is notoriously ambiguous and has been recognized as such since time immemorial. See, e.g., United Statesv. Fisk, 70 U.S. 445 (1865); see also Heydon’s Case, 76 Eng.Rep. 637 (Ex. 1584). It has been described as having no “single meaning, for chameleonlike, it takes its color from its surroundings.” Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958). Depending upon syntax and context, it can have either a conjunctive or disjunctive effect. See Slodov v. United States, 436 U.S.238, 246-47 (1978). In fact, it is often held that use of the word “and” should be understood in its conjunctive sense unless context would render such an interpretation anomalous or absurd. See, e.g., Reese Bros., Inc. v. United States, 447 F.3d 229, 23536 (3d Cir. 2006).
So begins the concurring opinion in a February 27, 2007 decision from the Colorado Supreme Court in Clyncke v. Waneka, ___ P.3d ___ (Colo. 2007). At issue was whether a plaintiff injured during equine activities had to prove two, or three, elements to establish a claim. The majority held it was three; the concurrence, three but for different reasons, and the dissent, just two. It was outcome determinative, and is a great read.
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