April 2013 - Parks & Recreation - 34

L AW R E V I E W

severity of the risk, the probability
of the potential injury, and whether
reasonable modifications would mitigate the risk must be made as to each
of the potential participants.
Route 40, however, claimed " the
group's late arrival was the single most
important determining factor as to why
the group was not permitted to play
paintball. " In so doing, Route 40 further contended " the orientation process
is 'primarily visual' and, thus, to orient
blind individuals, significantly more
time and personnel would be needed. "
[T]he process of complying with
the park's prerequisites to playing,
in light of the accommodations and
modifications necessary to ensure that
all of the safety information and instructions were adequately communicated to the group members, coupled
with the additional steps needed for
the group members to acquaint themselves with the paintball fields, would
have consumed the entirety of the
time remaining on their reservation,
making it impossible for them to play
before the groups reserving the four
2:00 p.m. slots were to begin.
As a result, Route 40 effectively
contended " taking such steps would
fundamentally alter the nature of the
good, service, facility, privilege, advantage, or accommodation being offered
or would result in an undue burden. "
The federal district court, however,
questioned " Route 40's factual assertion that Plaintiffs' late arrival made
it impossible for them to play " based
upon " a serious dispute of fact as to
what time they actually arrived. "
Even assuming they had arrived at
the latest of the proffered times, there is
also a dispute as to how long it would
take for them to receive the orientation
and equipment and whether or not they
could have played some games before
the expiration of their reserved time.
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That being said, the federal district court acknowledged plaintiffs'
" late arrival may have had some impact on their ability to play " under
the circumstances:
It is undisputed that the paintball
park was very crowded and busy on the
date in question. If Plaintiffs did arrive
as late as 1:00, one hour and fifteen minutes later than the time that they were
instructed to arrive, it is questionable
whether that individualized assessment
could be made, the orientation given,
and equipment supplied, with sufficient
time remaining to play paintball.
Waiver Form
As characterized by the court, Route
40 appears to argue that reading the
form was somehow an " undue burden " by citing an illustration in the
ADA Technical Assistance Manual
§ III-4.3000, i.e., " requirement of
reading information to a blind shopper may be an undue burden if store
is extremely busy. " In the opinion of
the court, Route 40's undue burden
argument was " questionable at best "
because " the one-page form could be
read in a matter of minutes. "
Moreover, the court noted that
Route 40 as a " public accommodation must still provide an alternative
auxiliary aid or service that would
not result in an undue burden or fundamental alteration but that would
ensure effective communication to
the maximum extent possible, if one
is available. "
[I]f Route 40 had a legitimate
reason for refusing to read the waiver, it still was under an obligation to
provide some alternative form of effective communication... [T]he fact
that providing a particular auxiliary
aid or service would result in a fundamental alteration or undue burden
does not necessarily relieve a public

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accommodation from its obligation
to ensure effective communication.
(See ADA Technical Assistance
Manual § III-4.3600.)
On the other hand, the federal district court acknowledged that " not
making its waiver form available
to the blind " would be irrelevant
if Route 40 could prove " the rule
against blind shooting is a necessary
criteria or that allowing the blind to
play would constitute a sufficient 'direct threat.' "
In the opinion of the court, the preliminary pretrial evidence " does not
ultimately tip the scale one way or
the other, " but " the evidence on these
issues weighs heavily against Route
40. " Specifically, the court found it
" interesting " that " Route 40 characterizes the rule as one 'requiring players to perceive what they are shooting.' " Yet, the court noted plaintiffs
maintained that they could indeed
" perceive what they are shooting "
based upon " the skills taught in the
CORE Program " to allow them to do
so " nonvisually. " Specifically, plaintiffs argued that if permitted to play,
they would:
 use their canes to navigate the
paintball field, including locating
obstacles
 strategically locate targets by listening for players moving on the
course and using pre-established
code words or sounds to differentiate between friend and foe
 using a code word or sound strategy, fire their paintball guns only at
someone they knew to be an opponent, and never at a close range
 know how to distinguish between
high and low targets
 avoid shooting the referee by discussing with the referee beforehand where he will be and informing him of the code-word strategy
April 2013 - Parks & Recreation

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