¶1concurring in the judgment only.
¶2Although I would also affirm the judgment of the court of appeals, I would not cling to the fiction that the statutory provision at issue here is clear and unambiguous. The word "and" is notoriously ambiguous and has been recognized as such since time immemorial. See, eg., United States v. Fisk, 70 U.S. (3 Wall.) 445, 18 L.Ed. 248 (1865); see also Heydon's Case, 46 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, 98 S.Ct. 1778, 56 L.Ed.2d 251 (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, eg., Reese Bros., Inc. v. United States, 447 F.3d 229, 235-36 (3d Cir.2006).
¶3Despite the suggestion of the majority to the contrary, nothing in the syntax of the statutory sentence itself mandates a disjunce-tive interpretation. The second "and" in subsection (4)(b)(1D)(B) joins two kinds of provider assessments of the participant's ability. In common parlance, this sentence structure could indicate an intent to treat both as a set, or combination, in effect defining a single duty the failure to satisfy either aspect of which would amount to a failure of the provider to satisfy a statutory condition required for exemption. But it could also be understood, on its face, to express an intent to *1080strip the provider of its statutory exemption only if the provider behaved so badly as to fail in each of two separate obligations.
¶4Conventional usage makes both understandings reasonable, and therefore the provision must be construed in order to determine its meaning. I find it singularly unhelpful to dub a particular statutory interpretation the statute's "plain meaning," merely because it has been arrived at without resort to extrinsic aids, like legislative history. The fact that a particular provision's meaning can ultimately be determined by examining the greater statutory scheme of which it is a part and applying other intrinsic aids to construction alone does not render it clear and unambiguous or any less the product of statutory construction.
¶5Largely for the reasons articulated by the court of appeals, I would consider anomalous any construction exempting a provider from liability despite its unreasonable failure to provide an appropriate animal for the planned activity, whether that be due more to the nature of the animal or more to the nature of the activity. It is difficult to find a legislative intent to shield providers unless they unreasonably expose their clients to danger in both ways simultaneously. While I acknowledge that the court of appeals' reference to "substitution" of the word "or" for the word "and" follows ancient usage, however, I consider it more accurate to describe the court's action as "construing" the word "and" as intended in its disjunctive sense. See, e.g., Fisk, 40 U.S. at 447.
¶6Although I therefore do not join the majority opinion, I nevertheless concur in the judgment of the court.