Waneka v. Clyncke, No. 04CA0811.

• Decision Date: 15 December 2005
• Docket Number: No. 04CA0811.
• Citation: 134 P.3d 492
• Parties: Michele WANEKA, Plaintiff-Appellant, v. Freeman CLYNCKE and Danny Clyncke, Defendants-Appellees.
• Court: Colorado Court of Appeals

134 P.3d 492

Michele WANEKA, Plaintiff-Appellant, v. Freeman CLYNCKE and Danny Clyncke, Defendants-Appellees.

No. 04CA0811.

Colorado Court of Appeals, Div. I.

December 15, 2005.

Certiorari Granted May 30, 2006.

Peter William Thomas, PLLC, Peter W. Thomas, Jr., Aspen, Colorado, for Plaintiff-Appellant.

Lambdin & Chaney, LLP, L. Kathleen Chaney, John W. Fairless, Denver, Colorado, for Defendants-Appellees.

Opinion by: Judge WEBB.

In this action involving a horseback riding accident, plaintiff, Michele Waneka, appeals the judgment entered on a jury verdict in favor of defendants, Danny and Freeman Clyncke. We reverse and remand for a new trial.

The background facts are undisputed. Defendants own a riding stable, teach riding lessons, and run a cattle ranch. Plaintiff sustained a brain injury when she fell from a horse named Badger while assisting defendants in a horse roundup on their ranch. Defendants had invited plaintiff on prior cattle roundups. The morning of the accident, she rode Badger during a cattle roundup without incident. Defendants then told plaintiff they were going to round up horses that afternoon. Following lunch, plaintiff joined them on the horse roundup.

Plaintiff testified that when she saw the horses, Badger took off running. She remembered being frightened and trying to direct Badger away from the horses, but recalls nothing after that.

Danny Clyncke testified that plaintiff was behind him, and then she was gone. He next saw her moving at "a trot that was just starting to smooth out to a lope" and that she "didn't appear to be alarmed or panic[ked]." No one saw plaintiff fall from Badger. She was later found lying on the ground unconscious.

As relevant here, plaintiff brought suit under the Colorado Equine Activities Statute (EAS), § 13-21-119, C.R.S.2005. She alleged that she is a beginning rider with minimal equestrian skills, that she was provided a specially trained horse inappropriate for her skill level, and that a horse roundup was an inappropriate and unsafe activity for a rider of her limited experience.

I.

Plaintiff first asserts that the trial court misconstrued the EAS by instructing the jury, over her objection, that the sponsor of an equine event would be liable only if a claimant proves that the sponsor failed to make reasonable efforts to determine both the participant's ability to engage in an activity and the participant's ability to manage an animal. We agree.

The trial court determines the form and style in which instructions will be given to the jury within its sound discretion. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996).

A court commits error in giving an incorrect instruction, unless the error is cured by the instructions as a whole. Regents of Univ. of Colo. v. Harbert Constr. Co., 51 P.3d 1037 (Colo.App.2001). We review a properly preserved objection to a jury instruction for harmless error. Woznicki v. Musick, 119 P.3d 567 (Colo.App.2005). Such an error is harmless unless it affects the substantial rights of the parties. C.R.C.P. 61. Prejudicial error in an instruction exists if the record shows that the jury might have reached a different verdict with a correct instruction. Woznicki v. Musick, supra.

Statutory interpretation is a question of law that we review de novo. Ryals v. St. Mary-Corwin Reg'l Med. Ctr., 10 P.3d 654 (Colo.2000).

Courts have a fundamental responsibility to interpret statutes to effect the General Assembly's intent, giving the words in the statute their plain and ordinary meaning. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo.1995). But courts also presume that the legislature intended a just and reasonable result. Section 2-4-201(1)(c), C.R.S.2005. Hence, courts will not interpret a statute in a manner that leads to an absurd or unreasonable result. See, e.g., People v. Riggs, 87 P.3d 109 (Colo.2004); In re Marriage of Roosa, 89 P.3d 524 (Colo.App.2004).

When interpreting a statute, a reviewing court may substitute "or" for "and," or vice versa, to avoid an absurd or unreasonable result. See, e.g., Henrie v. Greenlees, 71 Colo. 528, 208 P. 468 (1922); see also Smith v. Colo. Dep't of Human Servs., 916 P.2d 1199 (Colo.App.1996); Gamble v. Levitz Furniture Co., 759 P.2d 761 (Colo.App.1988); N. Singer, Statutes and Statutory Construction § 21:14, at 188 (6th ed. 2002)("Where the word `and' is used inadvertently and the intent or purpose of the statute seems clearly to require the word `or,' this is an example of a drafting error which may properly be rectified by a judicial construction.").

The General Assembly enacted the EAS, as relevant here, to encourage equine activities by limiting the civil liability of equine professionals involved in and sponsors of such activities. Section 13-21-119(1), C.R.S. 2005. The statute provides a nonexhaustive list of "inherent risks of equine activities." Section, 13-21-119(2)(f), C.R.S.2005. It then precludes liability of professionals and sponsors for injuries arising out of these risks. Section 13-21-119(3), C.R.S.2005.

Yet the EAS does not create absolute immunity. The statutory exception to this immunity at issue provides:

Nothing in subsection (3) of this section shall prevent or limit the liability of . . . any . . . person if the . . . person . . . [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.

Section 13-21-119(4)(b)(I)(B), C.R.S.2005 (emphasis supplied).

Here, the parties tried their case on the theory that defendants' liability depended upon whether Badger and the horse roundup were appropriate for plaintiff's ability, not whether defendants had made "reasonable and prudent efforts to determine" those abilities. In summation, plaintiff argued that she had been "honest and forthright" with defendants concerning her limited riding experience. Defendants argued that plaintiff had "represented herself to be a good rider."

The disputed 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 plaintiff's injuries, damages, and losses.

(Emphasis supplied.)

In challenging this instruction, plaintiff argues that (1) the EAS unambiguously imposes a two-pronged duty upon a person who provides a horse to a participant in an equine activity; (2) the statutory construction adopted by the trial court would lead to unjust and illogical results; and (3) plaintiff's proffered construction of the EAS is consistent with other legal authority. We are persuaded by plaintiff's first and second arguments, and therefore do not address her third argument.

Plaintiff's expert opined that Badger was not an appropriate horse for her ability because Badger had been trained in team penning, a competitive activity, and as a result would not respond to commands in the manner expected by an inexperienced rider. This expert also opined that rounding up horses — unlike rounding up cattle — was not an appropriate activity for plaintiff because any horse being ridden near loose horses would run toward them as a result of its herd instinct. The expert concluded:

So if you have a horse that has these abilities, even has the limited training for team penning, and you have a rider of limited ability, and you put them in a situation where things could get hot, I think it's a recipe for real disaster . . . .

Defendants presented evidence that plaintiff was a rider of greater experience, that Badger was a regular ranch horse, and that the roundup of these particular loose horses posed no unusual risk because Badger had spent the winter with them. They emphasized that plaintiff had ridden Badger successfully in the morning, that plaintiff had no memory of what, exactly, caused her to fall from Badger, and that she was found lying next to a deep rut in which Badger could have stumbled.

On this evidence and under the challenged instruction, the jury could have decided against plaintiff by concluding that she had not proved both an unsafe horse and an inappropriate activity for her ability. Such a decision is more likely because plaintiff's expert challenged the safety of the horse as well as of the activity. And this instruction forced plaintiff to argue in summation that she had proved both.

Nevertheless, plaintiff presented sufficient evidence for the jury to have concluded that (1) she told defendants of her limited riding experience; (2) either the horse, given Badger's competitive training, or the activity, the horse roundup, was inappropriate in light of her limited experience; and (3) either the horse or the activity could have proximately caused the accident.

Under these circumstances, interpreting the EAS to require that a participant must prove that the equine professional or sponsor failed to inquire into both managing a horse and engaging in an activity would lead to the absurd or unreasonable result that the professional or sponsor would be immune from liability for injury caused by a risk legislatively determined...