Kuketz v. MDC Fitness Corp.

13 Mass. L. Rptr. 511
CourtMassachusetts Superior Court
DecidedAugust 17, 2001
DocketNo. CA90114A
StatusPublished
Cited by1 cases

This text of 13 Mass. L. Rptr. 511 (Kuketz v. MDC Fitness Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuketz v. MDC Fitness Corp., 13 Mass. L. Rptr. 511 (Mass. Ct. App. 2001).

Opinion

Gants, J.

The plaintiff, Stephen Kuketz, has been in a wheelchair since 1991, when he became a paraplegic. He also is an accomplished athlete, having prevailed in enough wheelchair raquetball competitions to become in 1995 a nationally ranked wheelchair racquetball player. Since the fall of 1994, Kuketz has been a member of the defendant Brockton Athletic [512]*512Club (“the Club”). In January 1995, Kuketz asked to play In the Club’s Men’s “A” Level Tournament League (“the A League”), where the Club’s finest footed racquetball players compete against each other. However, Kuketz insisted that he be permitted two bounces to hit the ball, rather than the one bounce given to all footed players. The defendant Roslyn Petronelli, who managed the Club, refused to allow him to play in the A League, offering instead that he play in a novice league with footed players and be given only one bounce, or that she set up a wheelchair league for him if he could find other wheelchair players. Kuketz rejected these alternatives, and insisted upon being placed in the A League and given two bounces. Petronelli, on behalf of the Club, refused to allow him into the A League, and this suit followed.

Kuketz in his complaint alleges that the Club,' Petronelli, and the Club’s owner, defendant Charles “Nick" Mirrione, violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12181, byrefusing to allow him to participate in the A League because of his disability (Count V). Kuketz further alleges that barring him from the A League because of his disability also violated G.L.c. 272, §98 and c. 15 IB by discriminating against him on the basis of his handicap in a place of public accommodation (Count I). Kuketz also claims that the defendants violated G.L.c. 272, §92 and c. 151B by posting an editorial on the Club’s bulletin board critical of Kuketz and his request to play in the A League (Count II).1

All parties have cross-moved for summary judgment. This Court will first consider whether summary judgment should be granted as to the federal claim of violation of the ADA, and then shall consider the state claims.

Alleged Violation of the Federal ADA

42 U.S.C. §12182(a) of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Discrimination under the ADA is further defined as “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations." 42 U.S.C. §12182(b)(2)(A)(ii) (emphasis added). In considering whether the ADA requires modifications to permit a handicapped person to play in an athletic competition, “the statute contemplates three inquiries: whether the requested modification is ‘reasonable,’ whether it is ‘necessary’ for the disabled individual, and whether it would ‘fundamentally alter the nature of the competition.” PGA Tour, Inc. v. Martin, 121 S.Ct. 1879, 1893 n. 38 (2001).

In the context of this case, there is no dispute that, given Kuketz’s ability as a racquetball player, he would be playing in the A League if he were not a paraplegic and could play on foot. Effectively, Kuketz is claiming that, under the ADA, the Club discriminates against him on the basis of his disability if it fails to make two modifications to the usual rules in the A League: (1) he needs to play in a wheelchair, rather than on foot; and (2) he needs to be given two bounces rather than one.

There can be no dispute that both these modifications are “necessary” if Kuketz is to play in the A League: he has no mobility without his wheelchair and acknowledges that it is impossible for a wheelchair racquetball player, even one as good as him, to be competitive against a footed player if the wheelchair player must hit the ball on the first bounce. The defendants contend, however, that the modifications are not “reasonable” because they pose a safety risk to footed racquetball competitors and “fundamentally alter the nature” of the competition because they allow one player two bounces.

The record on summary judgment is not sufficient to permit this Court to find, as a matter of law, whether or not these modifications are reasonable. This Court recognizes that, of the eleven players who signed up for the A League, all eleven refused to play with Kuketz because of concerns for their safety, but the record says little as to whether the safety concerns of these potential competitors were reasonable or simply the product of ignorance and prejudice. Moreover, there are conflicting opinions in the record from those who claim expertise as racquetball players as to whether competitive play at this level between a footed and wheelchair player poses a significant risk of injury. Nor is there any empirical evidence to resolve this issue definitively.

The central issue in this case, then, is whether these modifications “fundamentally alter the nature” of the competition in racquetball. In PGA Tour, Inc. v. Martin, the Supreme Court recently considered whether the PGA Tour was required under the ADA to permit a professional golfer to use a golf cart when he was disabled with a degenerative circulatory disorder that caused atrophy to his right leg and rendered him unable to walk an 18-hole golf course. 121 S.Ct. 1879 (2001). In evaluating whether the use of a golf cart fundamentally altered the nature of the competition in professional golf, the Court recognized that there may be two types of fundamental alterations: (1) a modification “might alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally: changing the diameter of the hole from three to six inches might be such a modification . . and (2) a less significant modifi[513]*513cation “that has only a peripheral impact on the game itself might nevertheless give a disabled player ... an advantage over others . . .” Id. at 1893. The Supreme Court held that allowing golfer Casey Martin to ride a golf cart to his ball rather than walk the course did not “work a fundamental alteration in either sense.” Id.

In reaching this decision, the Court observed that “the essence of the game [of golf] has been shot-making — using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.” Id. at 1893-94. In short, the Court found that hitting the golf ball was fundamental; how one traveled to the ball was not.

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13 Mass. L. Rptr. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuketz-v-mdc-fitness-corp-masssuperct-2001.