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July 2, 2007

Michigan Supreme Court at it Again, Again; Colorado Joining the Fray

Bukowski v. City of Detroit, 2007 WL 1628422 (Mich. June 6, 2007) is another in a long line of Michigan Supreme Court cases I've blogged about where the justices rather passionately disagree on principles of stautory interpretation that are outcome determinative.

Meanwhile, no doubt jealous of not being covered here, two recent decisions from the Colorado Supreme Court are worth noting. In the earlier of the two, the "and means or" problem arose. Clyncke v. Waneka, 157 P.3d 1072 (Colo. 2007). In that case, an inexperienced rider fell off a horse and sued the owners of the stable, but ran into the notorious Equine Activities Statute. The issue the court faced was whether it was enough to impose liability if the stable provided an improper horse, or also had to provide improper activities for the rider. The statute read:

Nothing in subsection (3) of this section shall prevent or limit the liability of an equine activity sponsor [or] equine professional . . . if the equine activity sponsor [or] equine professional ... [p]rovided 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
.

The trial court required the plaintiff to prove three things: First, that defendants provided the horse. Second, that the defendants failed to make reasonable and prudent efforts to determine her ability to engage safely in the equine activity; and third, that the defendants failed to determine her ability to safely manage the particular animal based on her representations.

The Court of Appeals reversed, and the Supreme Court reversed the appellate court. The majority reasoned, pretty much in full:

For ease of discussion we simplify the legislative phrasing by using a shortcut for this circumstance --that a sponsor is not exempt from civil liability, or is liable, if he "failed to do X and Y." The phrase "failed to do" modifies both X and Y. Hence, the statute means that a sponsor is not exempt from civil liability if he "failed to do X and failed to do Y." Stated in the affirmative, the sponsor is exempt from civil liability unless a different exception applies if he did X and Y. Hence, if the equine sponsor satisfies both prongs of the exception, he will not be liable under subsection (4) (b) (I) (B) because the exception does not apply, and he retains the exemption from civil liability under subsection (3) of the Equine Statute unless a different exception applies.

The Clynckes argue that Waneka, the plaintiff, had to prove that they failed to do X and Y to establish their liability as the trial court so instructed and not either X or Y.9 This construction does not comport with the directive of this statute. If the plaintiff proves that a defendant failed to do X or Y, the exception to the exemption from civil liability applies and the sponsor is liable.

Hence, our statutory analysis reveals that the statute means "and" where this word is used and the court of appeals erred when it replaced "and" with "or." Nonetheless, we agree with the court of appeals' ultimate conclusion that the trial court erred when it proffered a jury instruction that did not track the statutory language's two-pronged duty that exemption from civil liability requires the sponsor to do X and Y –-that is to "make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity . . . and [ to] determine the ability of the participant to safely manage the particular animal based on the participant's representation of his ability." § 13-21-119(4) (b) (I) (B).

For a jury instruction to track statutory language, it does not have to be an exact duplicate of that language. The purpose of jury instructions is to provide the jury with the applicable law so that its attention will be directed to the specific issues that are to be determined. Yampa Valley Elec. Ass'n, Inc. v. Telecky, 862 P.2d 252, 256 (Colo. 1993). These instructions must contain a correct statement of the law so that jurors may properly examine the case before them. Id. In this case, the correct statement of the law provided in subsection 13-21-119(4) (b) (I) (B) involves instruction regarding the sponsor's two-pronged duty.

In terms of the exemption from civil liability, the instruction should read: a defendant is exempt from civil liability unless a different exception applies if he provided both a proper activity and a proper horse. If the trial court were to instruct the jury in terms of liability, as it did previously, then this instruction would read: a sponsor is liable if the plaintiff proved that the equine activity sponsor either: 1) failed to determine a proper activity; or 2) failed to provide a proper horse. Therefore, the trial court's jury instruction was erroneous because it failed to properly track the statutory language as written.

The dissent dissented, as dissents are wont to do (a concurring opinion I'll omit). The dissent wrote:

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 liability . . . if he did X and Y." Maj. op. at 14. Thus, the majority concludes that the defendant sponsor is exempt from liability under section 13-21-119(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 4. The statute as written begins with an exemption from liability in subsection (3) and then withdraws that exemption upon the satisfaction of the elements set forth in subsection (4) (b) (I) (B) . By inverting the statutory language, the majority erases the baseline of exemption. Inverting the language changes the statutory elements 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 exclusively on the "fails to do X and Y" language, but subsection (4) (b) (I) (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 once 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 15 n.9.

The majority’s interpretive sleight of hand works only if the "Provided the animal" portion of subsection (4) (b) (I) (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 14 (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 (3) creates a broad exemption from liability for sponsors of equine activities for injuries resulting from the inherent risks of equine activities. Maj. op. at 12 (citing § 13-21-119(3). Subsection (4) (b) then states that "Nothing in subsection (3) 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 (3) 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."§ 13-21-119(4) (b) (I) (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) (I) (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 (3) 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 (3) for the exemption not to apply. Maj. op. at 15. The majority therefore has not found "plain language" missed by the court of appeals, as it suggests, see id. at 4, 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) (I) (B) as linking two separate parts of a single duty. Conc. op. at 1-2. 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 be "anomalous" to "shield [defendant sponsors] unless they unreasonably expose their clients to danger in both ways simultaneously." Id. at 2-3.

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 second "and" links two parts of a single duty. On the contrary, as the majority points out, "[ t] he 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 14.

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 liability under such circumstances, it could have simply referenced the failure to match rider with horse in subsection(4) (b) (I) (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.

The other Colorado case I'll talk about later, as it looks more interesting.

July 2, 2007 in Current Affairs | Permalink

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