132 Eng. Rep. 490

VAUGHAN

v.

MENLOVE.

Jan. 23, 1837.

[S. C. 4 Scott, 244; 3 Hodges, 51; 6 L.J. C.P. 92; 1 Jur. 215: at Nisi Prius, 7 Car. & P. 525.]

An action lies against a party for so negligently constructing a hay-rick on the extremity of his land, that in consequence of its spontaneous ignition, his neighbour's house is burnt down. And upon pleas of not guilty, and that there was no negligence, held, that it was properly left to the jury to say whether the Defendant had been guilty of gross negligence, viewing his conduct with reference to the caution that a prudent man would have observed.

The declaration stated, that before and at the time of the grievance and injury, hereinafter mentioned, certain premises, to wit, two cottages with the appurtenances situate in the county of Salop, were respectively in the respective possessions and occupations of certain persons as tenants thereof to the Plaintiff, to wit, one thereof in the possession and occupation of one Thomas Ruscoe as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff, and the other thereof in the possession and occupation of one Thomas Bickley as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff: that the Defendant was then possessed of a certain close near to the said cottages, and of certain buildings of wood and thatch, [132 Eng. Rep. 491] also near to the said cottages; and that the Defendant was then also possessed of a certain rick or stack of hay before then heaped, stacked, or put together, and then standing, and being in and upon the said close of the Defendant. That on the 1st of August 1835, while the said cottages so were in the occupation of the said tenants, and while the reversion thereof respectively so belonged to the Plaintiff' as aforesaid, the said rick or stack of hay of the Defendant was liable and likely to ignite, take fire, and break out into a flame, and there had appeared, and were just grounds to apprehend and believe that the same would ignite, take fire, and break out into a flame; and by reason of such liability, and of the state and condition of the said rick or stack of hay, the same then was and continued dangerous to the said cottages; of which said several pre [3 Bing (N. C.) 469] mises the Defendant then had notice: yet the Defendant well knowing the premises, but not regarding his duty in that behalf, on, &c., and from thence until and upon a certain day, to wit, on, &c. wrongfully negligently, and improperly, kept and continued the said rick or stack of hay, so likely and liable to ignite and take fire, and in a state and condition dangerous to the said cottages, although he could, and might, and ought to have remove and altered the same, so as to prevent the same from being and continuing so dangerous as aforesaid; and by reason thereof the said cottages for a long time, to wit, during all the time aforesaid, were in great danger of being consumed by fire. That by reason of the premises, and of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack, in a state or condition so dangerous as aforesaid, and so liable and likely to ignite and take fire and break out into flame, on, &c., and while the said cottages so were occupied as aforesaid, and the reversion thereof respectively so belonged to the Plaintiff; the said rick or stack of hay of the Defendant, standing in the close of the Defendant, and near the said c:ottages, did ignite, take fire, and break out into flame, and by fire and flame thence issuing and arising, the said standing of the Defendant so being of wood and thatch as aforesaid, and so being near to the said rick or stack as aforesaid, were set on fire; and thereby and by reason of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack in such condition as aforesaid, fire and flame so, occasioned as aforesaid by the igniting and breaking out into flame, of the said rick or stack, was thereupon then communicated unto the said cottages in which the Plaintiff was interested as aforesaid, which were thereby then respectively set on fire, and then, to wit on, &c., by reason of such [3 Bing (N. C.) 470] carelessness, negligence, and improper conduct of the Defendent in so continuing the said rick or stack in such a dangerous condition as aforesaid, in manner aforesaid, were consumed, damaged, and wholly destroyed, the cottages being of great value, to wit, the value of 5001. And by means of the premises, the Plaintiff was greatly and permanently injured in his said reversionary estate and interest of and in each of them; to the Plaintiff's damage of 5001.

The Defendant pleaded, first, not guilty. Secondly, that the said rick or stack of hay was not likely to ignite, take fire, and break out into flame; nor was the same by reason of such liability, and of the state or condition of the said rick and stack of hay, dangerous to the said cottages; nor had the Defendant notice of the said premises, in manner and form as the Plaintiff had in and by his declaration in that behalf alleged. Thirdly, that the Defendant did not, well knowing the premises in the declaration in that behalf mentioned, wrongfully, negligently, or improperly, keep or continue the said rick or stack of hay, in a state and condition dangerous to the said cottages. Fourthly, that the said rick or stack of hay, did not by reason of the carelessness, negligence and improper conduct of the Defendant in that behalf, ignite, take fire, and break out in flame. And fifthly, that the said cottages were not consumed, damaged, and destroyed by reason of the carelessness, negligence, and improper conduct of the Defendant.

At the trial it appeared that the rick in question had been made by the Defendant near the boundary of his own premises; that the hay was in such and state when put together, as to give rise to discussions on the probability of fire: that though there were conflicting opinions on the subject, yetduring a period of five weeks, the Defendant was repeatedly warned of his [3 Bing (N. C.) 471] peril; that his stock was insured; and that upon one Occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to [132 Eng. Rep. 492] the Defendant's barn and stables, and thence to the Plaintiff's cottages, which were entirely destroyed.

Patteson J. before whom the cause was tried, told the jury that the question for them to consider, was, whether the fire had been occasioned by gross negligence on the part of the Defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.

A verdict having been found for the Plaintiff, a rule nisi for a new trial was obtained, on the ground that the jury should have been directed to consider, not, whether the Defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence. The action under such circumstances, was of the first impression.

Talfourd Serjt. and Whately, shewed cause.

The pleas having expressly raised issues on the negligence of the Defendant, the learned Judge could not do otherwise than leave that question to the jury. The declaration alleges that the Defendant knew of the dangerous state of the rick, and yet negligently and improperly allowed it to stand. The plea of not guilty, therefore, puts in issue the scienter, it being of the sub [Bing (N. C.) 472] stance of the issue; Thomas v. Morgan (2 Cr. M. & U. 496). And the action, though new in specie, is founded on a principle fully established, that a man must so use his own property as not to injure that of others. On the same circuit a defendant was sued a few years ago, for burning weeds so near the extremity of his own land as to set fire to and destroy his neighbors’ wood. The plaintiff recovered damages, and no motion was made to set aside the verdict. Then, there were no means of estimating the defendant's negligence, except by taking as a standard, the conduct of a man of ordinary prudence: that has been the rule always laid clown, and there is no other that would not be open to much greater uncertainties.

R V. Richards, in support of the rule.

First, there was no duty imposed on the Defendant, as there is on carriers or other bailees, under an implied contract, to be responsible for the exercise of any given degree of prudence: the Defendant had a right to place his stack as near to the extremity of his own land as he pleased; Wyatt v. Harrison (3 B. & Adol. 871): under that right, and subject to no contract, he can only be called on to act bona fide to the best of his judgment: if he has clone that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men. The measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence. In Crook v. Jadis (5 B. & Adol. 910), Patteson J. says, "I never could understand [Bing (N. C.) 473]what is meant by parties taking a bill under circumstances which ought to have excited the suspicion of a prudent man:" and Taunton J., “I cannot estimate the degree of care which a prudent man should take.”

In Foster v. Pearson too, (1 C. M. & H. 855) it appears that the rule which called on persons taking negotiable instruments to act with the circumspection of a prudent man, has at length been abandoned. There, the judge left it to the jury to say whether the holder of bills took them with due care and caution in the ordinary course of business; and upon a motion to set aside a verdict for the plaintiff, the Court said: “Of the mode in which the question was left, the defendant has certainly no right to complain; but, if the verdict had been in his favour, it would have become necessary to consider whether the learned Judge was correct in adopting the rule first laid down by the Court of Common Pleas, in the case of Snow v. Peacock (3 Bingh. 406), and which was founded upon the dicta, rather than the decision, of the judges of the King's Bench in the case of Gill v. Cubitt (5 D. & R. 324. 3 B. & C. 466); more especially since the opinion of the latter court has been so strongly intimated in the late cases of Crook v. Jadis (3 N. & M. 257) and Backhouse v. Harrison (ibid. 188). The rule of law was long considered as being firmly established, that the holder of bills of exchange indorsed in blank or other negotiable securities transferable by delivery, could give a title which he himself did not possess to a bona fide holder for value; and it may well be questioned whether it has been wisely departed from in the case to which reference has been made, and other subsequent cases in which care and caution in the taker of [132 Eng. Rep. 493] such securities has been treated as essential to the validity of his title, besides, and independently of, honesty of purpose.”

[Bing (N. C.) 474] TINDAL C.J.

I agree that this is a case primæ impressionis; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this is not a case of contract, such as abailment or the like where the bailee is responsible in consequence of the remuneration he is to receive: but there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the Defendant is liable for the consequence of his own neglect: and though the Defendant did not himself light the fire, yet mediately, he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbour, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not forsee: Turbervill v. Stamp (1 Salk. 13). But put the case of a chemist making experiments with ingredients, singly innocent, but when combined, liable to ignite; if he leaves them together, and injury is t hereby occasioned to the property of his neighbour, can anyone doubt that an action on the case would lie?

It is contended, however, that the learned Judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence that the jury might have thought the latter the rule by which they were to decide; that such a rule would be too uncertain to act upon; and that the question ought to have been whether the Defendant had acted honestly and bona fide to the best of his own judgment. That, [Bing (N. C.) 475] however, would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various: and though it has been urged that the care which a prudent man would take, is not an intelligible proposition as a rule of law, yet such has always been the rule adopted in cases of bailment, as laid down in Coggs. v. Bernard (2 Ld. Raym. 909). Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz. commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them hack again to the lender; because the bailee has a benefit by the use of them, so as if the bailee he guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him: but if he or his servant leave the house or stable doors open and the thieves take the opportunity of that, and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.” The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.

Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. [Bing (N. C.) 476] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.

PARK J.

I entirely concur in what has fallen from his Lordship. Although the facts in this case are new in specie, they fall within a principle long established, that a man must so use his own property as not to injure that of others. In Tubervill v. Stamp (1 Salk. 13), which was “an action on the case upon the custom of the realm, quare negligenter custodivit ignem suum in clauso suo, ita quod per flammas blade Quer. in quodam clauso ipsius Quer. combusta fuerunt; after verdict pro Quer. it was objected that the custom extended only to fire in his house, or curtilage (like goods of guests) which were in his power: Non alloc. For the fire in his field was his fire as well as that in his house; he made it, and must see that it did no harm, and must answer the damage if he did. Every man must use his own so as not to hurt another: but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shewn it. And Holt, and Rokesby, and Eyre were against the [132 Eng. Rep.494] opinion of Turton, who went upon the difference between fire in a house which was in a man's custody and power, and fire in a field which was not properly so; and that it would discourage husbandry, it being usual for farmers to burn stubble, &c. But the Plaintiff had judgment according to the opinion of the other three." That case, in its principles, applies closely to the present.

As to the direction of the learned Judge, it was perfectly correct. Under the circumstances of the case it was proper to leave it to the jury whether with reference to the caution which would have been observed by [Bing (N. C.) 477]a man of ordinary prudence, the Defendant had not been guilty of gross negligence. After he had been warned repeatedly during five weeks as to the consequences likely to happen, there is no colour for altering the verdict, unless it were to increase the damages.

GASELEE J. concurred in discharging the rule.

VAUGHAN J.

The principle on which this action proceeds, is by no means new. It has been urged that the Defendant in such a case takes no duty on himself; but I do not agree in that position: every one takes upon himself the duty of so dealing with his own property as not to injure the property of others. It was, if any thing, too favourable to the Defendant to leave it to the jury whether he had been guilty of gross negligence; for when the Defendant upon being warned as to the consequences likely to ensue from the condition of the rick, said, "he would chance it," it was manifest he adverted to his interest in the insurance office. The conduct of a prudent man has always been the criterion for the jury in such cases: but it is by no means confined to them. In insurance cases, where a captain has sold his vessel after damage too extensive for repairs, the question has always been, whether he had pursued the course which a prudent man would have pursued under the same circumstance. Here, there was not a single witness whose testimony did not go to establish gross negligence in the Defendant. He had repeated warnings of what was likely to occur, and the whole calamity was occasioned by his procrastination.

Rule discharged.

1555*1555 Arthur L. Klein, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for plaintiff-appellant.

Byron D. Knight, Judge & Knight, Ltd., Park Ridge, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The high crime rate in the United States has interacted with expanding notions of tort liability to make suits charging hotel owners with negligence in failing to protect their guests from criminal attacks increasingly common. See Annot., 28 A.L.R.4th 80 (1984). Dula McCarty, a guest at the Pheasant Run Lodge in St. Charles, Illinois, was assaulted by an intruder in her room, and brought suit against the owner of the resort. The suit charges negligence, and bases federal jurisdiction on diversity of citizenship. The parties agree that Illinois law governs the substantive issues. The jury brought in a verdict for the defendant, and Mrs. McCarty appeals on a variety of grounds.

In 1981 Mrs. McCarty, then 58 years old and a merchandise manager for Sears Roebuck, checked into Pheasant Run — a large resort hotel on 160 acres outside Chicago — to attend a Sears business meeting. In one wall of her second-floor room was a sliding glass door equipped with a lock and a safety chain. The door opens onto a walkway that has stairs leading to a lighted courtyard to which there is public access. The drapes were drawn and the door covered by them. Mrs. McCarty left the room for dinner and a meeting. When she returned, she undressed and got ready for bed. As she was coming out of the bathroom, she was attacked by a man with a stocking mask. He beat and threatened to rape her. She fought him off, and he fled. He has never been caught. Although Mrs. McCarty's physical injuries were not serious, she claims that the incident caused prolonged emotional distress which, among other things, led her to take early retirement from Sears.

Investigation of the incident by the police revealed that the sliding glass door had been closed but not locked, that it had been pried open from the outside, and that the security chain had been broken. The intruder must have entered Mrs. McCarty's room by opening the door to the extent permitted by the chain, breaking the chain, and sliding the door open the rest of the way. Then he concealed himself somewhere in the room until she returned and entered the bathroom.

Mrs. McCarty argues that the judge should have granted her motion for judgment notwithstanding the jury's verdict for the defendant. But she failed to move for a directed verdict on the issue of the defendant's negligence, and that is a prerequisite to judgment n.o.v. Fed.R.Civ.P. 50(b). It is true that she made a motion for a directed verdict on the issue of her contributory negligence, which was denied, and that the defendant made a motion for a directed verdict on the issue of its negligence, which was also denied, but these motions were not equivalent to the motion she failed to make. Even if she had been innocent of contributory negligence as 1556*1556 a matter of law, this would not have made the defendant guilty of negligence as a matter of law; in many accidents, neither injurer nor victim is at fault, and then there is no liability. Similarly, all that the denial of the defendant's motion for a directed verdict showed was that the defendant was not innocent of negligence as a matter of law; it could of course be guilty of negligence as a matter of law. Thus, neither motion for directed verdict presented the question whether the issue of the defendant's negligence should be withdrawn from the jury and resolved in the plaintiff's favor. She could not present that issue for the first time in her motion for judgment n.o.v.

The modern rationale for the rule that a motion for directed verdict is a prerequisite to judgment n.o.v. is that the opposing party should have a chance to rectify (or at least seek the court's leave to rectify) deficiencies in his evidence before it is too late, that is, before the case goes to the jury. McKinnon v. City of Berwyn, 750 F.2d 1383, 1388 (7th Cir.1984); see also Benson v. Allphin, 786 F.2d 268, 273-74 (7th Cir.1986). That rationale is applicable to this case. After both motions for directed verdict (the plaintiff's on contributory negligence, and the defendant's on negligence) were denied, the defendant had no reason to think it hadn't put in enough evidence to get to the jury on the issue of liability. If the plaintiff thought otherwise she had to move for a directed verdict on that issue.

As an alternative ground for denying the motion for judgment n.o.v., the district judge correctly pointed out that the case was not so one-sided in the plaintiff's favor that the grant of a directed verdict or judgment n.o.v. in her favor would be proper. Her theories of negligence are that the defendant should have made sure the door was locked when she was first shown to her room; should have warned her to keep the sliding glass door locked; should have equipped the door with a better lock; should have had more security guards (only two were on duty, and the hotel has more than 500 rooms), cf. Nordmann v. National Hotel Co., 425 F.2d 1103, 1107 (5th Cir.1970); should have made the walkway on which the door opened inaccessible from ground level; should have adopted better procedures for preventing unauthorized persons from getting hold of keys to guests' rooms; or should have done some combination of these things. The suggestion that the defendant should have had better procedures for keeping keys away from unauthorized persons is irrelevant, for it is extremely unlikely that the intruder entered the room through the front door. Compare Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964). The other theories were for the jury to accept or reject, and its rejection of them was not unreasonable. Cf. Courtney v. Remler, 566 F.Supp. 1225, 1233-34 (D.S.C.1983).

There are various ways in which courts formulate the negligence standard. The analytically (not necessarily the operationally) most precise is that it involves determining whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. (The product of this multiplication, or "discounting," is what economists call an expected accident cost.) If the burden is less, the precaution should be taken. This is the famous "Hand Formula" announced in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L. Hand, J.), an admiralty case, and since applied in a variety of cases not limited to admiralty. See, e.g., United States Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir.1982); Maryland Cas. Co. v. City of Jackson, 493 So.2d 955, 960 n. 3 (Miss.1986) (dictum); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 266-67, 495 A.2d 107, 117-18 (1985); Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 348 N.E.2d 571, 577-78 (1976); Phillips v. Croy, 173 Ind.App. 401, 404-05, 363 N.E.2d 1283, 1285 (1977); Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 9 and n. 5, 402 N.E.2d 1203, 1208 and n. 5 (1978); Golden v. McCurry, 392 So.2d 815, 819 (Ala.1980) (separate opinion); 3 Harper, James & Gray, The Law of Torts § 16.9, at pp. 467-68 1557*1557 (2d ed. 1986); Prosser and Keeton on the Law of Torts § 31, at p. 173 (5th ed. 1984); cf. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986); Prentis v. Yale Mfg. Co., 421 Mich. 670, 687, 365 N.W.2d 176, 184 (1984).

We are not authorized to change the common law of Illinois, however, and Illinois courts do not cite the Hand Formula but instead define negligence as failure to use reasonable care, a term left undefined. See, e.g., Hardware State Bank v. Cotner, 55 Ill.2d 240, 247-48, 302 N.E.2d 257, 262 (1973); Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067, 6 Ill.Dec. 77, 87, 362 N.E.2d 712, 722 (1977). But as this is a distinction without a substantive difference, we have not hesitated to use the Hand Formula in cases governed by Illinois law. See EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 958 (7th Cir.1982); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1263-64 (7th Cir.1986). The formula translates into economic terms the conventional legal test for negligence. This can be seen by considering the factors that the Illinois courts take into account in negligence cases: the same factors, and in the same relation, as in the Hand Formula. See Hendricks v. Peabody Coal Co., 115 Ill.App.2d 35, 45-46, 253 N.E.2d 56, 61 (1969); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 111-12, 172 N.E.2d 424, 426-27 (1961). Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost.

Ordinarily, and here, the parties do not give the jury the information required to quantify the variables that the Hand Formula picks out as relevant. That is why the formula has greater analytic than operational significance. Conceptual as well as practical difficulties in monetizing personal injuries may continue to frustrate efforts to measure expected accident costs with the precision that is possible, in principle at least, in measuring the other side of the equation — the cost or burden of precaution. Cf. Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir.1940) (L. Hand, J.), rev'd on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941). For many years to come juries may be forced to make rough judgments of reasonableness, intuiting rather than measuring the factors in the Hand Formula; and so long as their judgment is reasonable, the trial judge has no right to set it aside, let alone substitute his own judgment.

Having failed to make much effort to show that the mishap could have been prevented by precautions of reasonable cost and efficacy, Mrs. McCarty is in a weak position to complain about the jury verdict. No effort was made to inform the jury what it would have cost to equip every room in the Pheasant Run Lodge with a new lock, and whether the lock would have been jimmy-proof. The excluded exhibits (of which more later) were advertisements for locks, and Mrs. McCarty's lawyer expressed no interest in testing the claims made in them, or in calculating the expense of installing new locks in every room in the resort. And since the door to Mrs. McCarty's room was unlocked, what good would a better lock have done? No effort was made, either, to specify an optimal security force for a resort the size of Pheasant Run. No one considered the fire or other hazards that a second-floor walkway not accessible from ground level would create. A notice in every room telling guests to lock all doors would be cheap, but since most people know better than to leave the door to a hotel room unlocked when they leave the room — and the sliding glass door gave on a walkway, not a balcony — the jury might have thought that the incremental benefits from the notice would be slight. Mrs. McCarty testified that she didn't know there was a door behind the closed drapes, but the jury wasn't required to believe this. Most people on checking into a hotel room, especially at a resort, are curious about the view; and it was still light when Mrs. McCarty checked in at 6:00 p.m. on an October evening.

It is a bedrock principle of negligence law that due care is that care which is optimal given that the potential victim is himself reasonably careful; a careless person 1558*1558 cannot by his carelessness raise the standard of care of those he encounters. Davis v. Consolidated Rail Corp., supra, 788 F.2d at 1265. The jury may have thought it was the hotel's responsibility to provide a working lock but the guest's responsibility to use it. See Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 652 (Me.1972). We do not want to press too hard on this point. A possible explanation for the condition of the door as revealed by the police investigation is that Mrs. McCarty on leaving the room for the evening left the door unlocked but with the safety chain fastened, and she might have been reasonable in thinking this a sufficient precaution. But it would not follow that the hotel was negligent, unless it is negligence to have sliding doors accessible to the public, a suggestion the jury was not required to buy. We doubt whether a boilerplate notice about the dangers of unlocked doors would have altered the behavior of the average guest; in any event this too was an issue for the jury. Cf. Rosier v. Gainsville Inns Associates, Ltd., 347 So.2d 1100, 1102 (Fla.App.1977); Otwell v. Motel 6, Inc., 755 F.2d 665, 667 (8th Cir.1985) (per curiam).

Now it is true that in Illinois an innkeeper, which in contemplation of law this defendant is, is required to use a high (not merely the ordinary) standard of care to protect its guests from assaults on the innkeeper's premises. Mrzlak v. Ettinger, 25 Ill.App.3d 706, 712-13, 323 N.E.2d 796, 800 (1975); Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 8-9, 203 N.E.2d at 709. This is not the general rule, see, e.g., Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413 (6th Cir.1984); Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 123-24, 278 N.W.2d 208, 212 (1979); Phillips Petroleum Co. v. Dorn, 292 So.2d 429, 431-32 (Fla.App.1974), though it has some ambiguous support in Louisiana, see Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982) — ambiguous because while the court said that "a guest is entitled to a high degree of care and protection," it promptly added that "the innkeeper has a duty to take reasonable precautions against criminals" (id. at 1053, emphasis added). Conceivably, as suggested in Dorn, it is no longer the rule in Illinois either, though Yamada v. Hilton Hotel Corp., 60 Ill.App.3d 101, 112, 17 Ill.Dec. 228, 237, 376 N.E.2d 227, 236 (1977), decided after Dorn, suggests it is. The rule may simply be an inadvertent extrapolation from the principle (see Restatement (Second) of Torts, § 314A and comment e (1965); Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 412) that an innkeeper, like a common carrier but unlike a mere bystander, has a duty to prevent (or rescue from) dangers created by third parties. See Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 331, 125 N.E.2d 544, 546 (1955), seeming to equate these distinct propositions.

The rule, if it is a rule, may be defensible however; and whether it is or is not defensible is relevant to whether it is a genuine rule or a mere inadvertence. Ordinarily the innkeeper knows much more about the hazards of his trade than the guest, and can take reasonable (=cost-justified) steps to reduce them, while ordinarily the guest can do little to protect himself against them. See Banks v. Hyatt Corp., 722 F.2d 214, 226-27 (5th Cir.1984). Pheasant Run, Inc. knows more about the danger of break-ins to guest rooms at its lodge than the guests do, and more about the alternative methods for preventing such break-ins, as well. Maybe this asymmetry in the parties' position should make the defendant's standard of care higher than it would be in, say, an ordinary collision case. See Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 6-8, 203 N.E.2d at 708-09. But it does not make the defendant's liability strict. In this case there was evidence of negligence but not so much as to establish liability as a matter of law or (the plaintiff's alternative argument) to require a new trial. And the rule, based as it seems to be on an asymmetry in the parties' abilities to prevent mishaps, has a certain hollowness in a case such as this, where the victim may have failed to take an elementary precaution — locking the sliding door before leaving the room.

1559*1559 The next issue that Mrs. McCarty seeks to raise is whether the judge should have instructed the jury to decide whether she had been contributorily negligent. She argues that there was no evidence of her contributory negligence. Pheasant Run is not in the middle of a large city and it might not occur to a guest that a safety chain on a sliding door to the outside was an inadequate protection against nocturnal marauders. On the other hand Mrs. McCarty was an experienced business traveler, so maybe she should have known better; and most people don't consider a safety chain an adequate substitute for a lock. But even if there was no evidence of contributory negligence, there was no prejudicial error in giving an instruction on it. The jury was clearly and correctly instructed that contributory negligence in Illinois is not a complete defense; it just cuts down the amount of damages that the plaintiff would otherwise be entitled to. This is the principle of comparative negligence, and at the time of the trial of this case it existed in Illinois in its pure form, meaning that the plaintiff is entitled to some damages even if he was more negligent than the defendant. See Alvis v. Ribar, 85 Ill.2d 1, 25-28, 52 Ill.Dec. 23, 421 N.E.2d 886, 897-98 (1981). (The rule has since been modified. See Ill.Rev.Stat. ch. 110, ¶¶ 2-1107.1, 2-1116; Davis v. United States, 824 F.2d 549, 551 (7th Cir.1987).) Since the jury returned a verdict for the defendant, rather than a verdict for the plaintiff with truncated damages, it probably thought that the defendant had not been negligent at all or that its negligence had not caused the mishap; in either case the plaintiff's contributory negligence or lack thereof would be moot. It is unlikely that the mere giving of the instruction somehow signaled to the jury the judge's belief that the verdict should be for the defendant.

The remaining questions concern the judge's exclusion of evidence that the plaintiff sought to put before the jury. The exclusion of evidence about proper key-control procedures was proper for a reason we have already indicated: such evidence was not relevant to any plausible theory of the defendant's negligence. Also proper or at least defensible was the judge's decision to exclude evidence of previous criminal activity at Pheasant Run that did not involve breaking into a room through the sliding glass door. The judge admitted evidence of the nine previous break-ins that did. The principal evidence in the previous-crimes category that he excluded was of two alleged sexual assaults and eleven alleged thefts from rooms. This evidence was of limited relevance, at best. One of the so-called assaults involved a complaint from a man who said that he saw a man and woman having intercourse in a hallway and that he sprained his ankle pursuing the man; it is entirely unclear whether the intercourse was coerced or what the relationship of the complainant to the couple was. The circumstances of the other alleged assault are equally shadowy. Neither involved an intrusion into a room. The eleven reports of theft appear to include cases where a guest lost or mislaid an item as well as cases of genuine theft, but in any event are remote from the issues in this case; among other things, none involved forcing the sliding glass door.

A trial judge has broad discretion in administering Rule 403 of the Federal Rules of Evidence, which authorizes him to exclude relevant evidence if its probative significance is substantially outweighed by its prejudicial, confusing, or cumulative effect. Where as here the judge explains the reasoning process behind his exclusions, they will rarely be overturned. See United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir.1987). Pheasant Run is a large place, and it is not to be supposed that it would be free of criminal activity no matter how careful (within the bounds of reason) the management was. There is no indication that its experience with criminal activity was abnormal or indicative of a need to take additional precautions. Maybe the jury should have been allowed to figure this out for itself, but a jury's ability to digest statistical evidence is limited, especially when no comparison was attempted by the plaintiff's counsel between the frequency of criminal activity at Pheasant 1560*1560 Run and at comparable resort hotels, cf. Anderson v. Malloy, 700 F.2d 1208, 1211-12 (8th Cir.1983), and no effort was made to show that precautions which would have averted crimes not involving the forcing of the sliding glass doors would also have averted the attack on Mrs. McCarty.

She also complains about the exclusion from evidence of advertisements for locks for sliding glass doors. These locks are designed to foil intruders, as the advertisements make clear, and Mrs. McCarty argues with some show of reason that the advertised locks appear to be more effective than the locks on the sliding glass doors at Pheasant Run. The problem is the absence of a causal relationship between the failure to have fancy locks and the attack on Mrs. McCarty. There is no evidence that Mrs. McCarty's assailant jimmied the lock. The door was unlocked. The world's fanciest lock — a lock to foil a Houdini — would thus have done her no good, and the failure to install a precaution that would not have avoided this accident (the accident that is the basis of the suit) is not actionable. Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 415. Her complaint about the exclusion of evidence of inadequate maintenance by the defendant of its sliding glass doors fails for the same reason; there is no indication that her failure to lock the door was due to improper maintenance. Finally, it is merely speculation that if the door had been equipped with a lock that locked automatically when the door was slid closed, the door would not have been left open with merely the safety chain fastened.

AFFIRMED.

PGA TOUR, INC. v. MARTIN

No. 00-24.

Argued January 17, 2001

Decided May 29, 2001

H. Bartow Farr III argued the cause for petitioner. With him on the briefs were Richard G. Taranto, William J. Maledon, and Andrew D. Hurtiwz.

Roy L. Reardon argued the cause for respondent. With him on the brief was Joseph M. McLaughlin.

Deputy Solicitor General Underwood argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Assistant Attorney General Lee, Patricia A. Millett, Jessica Dunsay Silver, and Thomas E. Chandler.*

*

Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Arm Elizabeth Reesman; for ATP Tour, Inc., et al. by Bradley I. Ruskin; for the United States Golf Association by Roy T. Englert, Jr., Lee N. Abrams, James C. Schroeder, Robert M. Bow, Jr., and John IK Vardaman; and for Kenneth R. Green II by Gregory D. Smith.

Briefs of amici curiae urging affirmance were filed for the American Association of Adapted Sports Programs et al. by Anita M. Moorman and Lisa Pike Masteralexis; for the K-T Support Group by Brian D. Shannon; for the National Association of Protection and Advocacy Systems et al. by Sharon Masling, Samuel R. Bagenstos, and Neil V, McKittrick; and for Robert J. Dole et al. by Robert L. Burgdorf Jr., and George G. Olsen.

Justice Stevens

delivered the opinion of the Court.

This ease raises two questions concerning the application of the Americans with Disabilities Act of 1990,104 Stat. 328, 42 U. S. C. § 12101 et seq., to a gifted athlete: first, whether the Act protects access to professional golf tournaments by a qualified entrant with a disability; and second, whether a disabled contestant may be denied the use of a golf cart because it would “fundamentally alter the nature” of the tournaments, § 12182(b)(2)(A)(ii), to allow him to ride when all other contestants must walk.

I

Petitioner PGA TOUR, Inc., a nonprofit entity formed in 1968, sponsors and cosponsors professional golf tournaments conducted on three annual tours. About 200 golfers participate in the PGA TOUR; about 170 in the NIKE TOUR;1 and about 100 in the SENIOR PGA TOUR. PGA TOUR and NUCE TOUR tournaments typically are 4-day events, played on courses leased and operated by petitioner. The entire field usually competes in two 18-hole rounds played on Thursday and Friday; those who survive the “cut” play on Saturday and Sunday and receive prize money in amounts determined by their aggregate scores for all four rounds. The revenues generated by television, admissions, concessions, and contributions from cosponsors amount to about $800 million a year, much of which is distributed in prize money.

There are various ways of gaining entry into particular tours. For example, a player who wins three NIKE TOUR events in the same year, or is among the top-15 money winners on that tour, earns the right to play in the PGA TOUR. Additionally, a golfer may obtain a spot in an official tournament through successfully competing in “open” qualifying rounds, which are conducted the week before each tournament. Most participants, however, earn playing privileges in the PGA TOUR or NIKE TOUR by way of a three-stage qualifying tournament known as the “Q-Sehool.”

Any member of the public may enter the Q-School by paying a $8,000 entry fee and submitting two letters of reference from, among others, PGA TOUR or NIKE TOUR members. The $3,000 entry fee covers the players’ greens fees and the cost of golf carts, which are permitted during the first two stages, but which have been prohibited during the third stage since 1997. Each year, over a thousand contestants compete in the first stage, which consists of four 18-hole rounds at different locations. Approximately half of them make it to the second stage, which also includes 72 holes. Around 168 players survive the seeond stage and advance to the final one, where they compete over 108 holes. Of those finalists, about a fourth qualify for membership in the PGA TOUR, and the rest gain membership in the NIKE TOUR. The significance of making it into either tour is illuminated by the fact that there are about 25 million golfers in the country.2

Three sets of rules govern competition in tour events. First, the “Rules of Golf,” jointly written by the United States Golf Association (USGA) and the Royal and Ancient Golf Club of Scotland, apply to the game as it is played, not only by millions of amateurs on public courses and in private country clubs throughout the United States and worldwide, but also by the professionals in the tournaments conducted by petitioner, the USGA, the Ladies’ Professional Golf Association, and the Senior Women’s Golf Association. Those rules do not prohibit the use of golf carts at any time.3

Second, the “Conditions of Competition and Local Rules,” often described as the “hard card,” apply specifically to petitioner’s professional tours. The hard cards for the PGA TOUR and NIKE TOUR require players to walk the golf course during tournaments, but not during open qualifying rounds.4 On the SENIOR PGA TOUR, which is limited to golfers age 50 and older, the contestants may use golf carts. Most seniors, however, prefer to walk.5

Third, “Notices to Competitors” are issued for particular tournaments and cover conditions for that specific event. Such a notice may, for example, explain how the Rules of Golf should be applied to a particular water hazard or manmade obstruction. It might also authorize the use of carts to speed up play when there is an unusual distance between one green and the next tee.6

The basic Rules of Golf, the hard cards, and the weekly notices apply equally to all players in tour competitions. As one of petitioner's witnesses explained with reference to “the Masters Tournament, which is golf at its very highest level,... the key is to have everyone tee off on the first hole under exactly the same conditions and all of them be tested over that 72-hole event under the conditions that exist during those four days of the event.” App. 192.

II

Casey Martin is a talented golfer. As an amateur, he won 17 Oregon Golf Association junior events before he was 15, and won the state championship as a high school senior. He played on the Stanford University golf team that won the 1994 National Collegiate Athletic Association (NCAA) championship. As a professional, Martin qualified for the NIKE TOUR in 1998 and 1999, and based on his 1999 performance, qualified for the PGA TOUR in 2000. In the 1999 season, he entered 24 events, made the cut 13 times, and had 6 top-10 finishes, coming in second twice and third once.

Martin is also an individual with a disability as defined in the Americans with Disabilities Act of 1990 (ADA or Act).7 Since birth he has been afflicted with Kfippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart. The disease is progressive; it causes severe pain and has atrophied his right leg. During the latter part of his college career, because of the progress of the disease, Martin could no longer walk an 18-hole golf course.8 Walking not only caused him pain, fatigue, and anxiety, but also created a significant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an amputation might be required. For these reasons, Stanford made written requests to the Pacific 10 Conference and the NCAA to waive for Martin their rules requiring players to walk and carry their own clubs. The requests were granted.9

When Martin turned pro and entered petitioner’s Q-Sehool, the hard card permitted him to use a cart during his successful progress through the first two stages. He made a request, supported by detailed medical records, for permission to use a golf cart during the third stage. Petitioner refused to review those records or to waive its walking rule for the third stage. Martin therefore filed this action. A preliminary injunction entered by the District Court made it possible for him to use a cart in the final stage of the Q-School and as a competitor in the NIKE TOUR and PGA TOUR. Although not bound by the injunction, and despite its support for petitioner’s position in this litigation, the USGA voluntarily granted Martin a similar waiver in events that it sponsors, including the U. S. Open.

III

In the District Court, petitioner moved for summary judgment on the ground that it is exempt from coverage under Title III of the ADA as a “private clu[b] or establish-men[t],”10 or alternatively, that the play areas of its tour competitions do not constitute places of “public accommodation” within the scope of that Title.11 The Magistrate Judge concluded that petitioner should be viewed as a commercial enterprise operating in the entertainment industry for the economic benefit of its members rather than as a private club. Furthermore, after noting that the statutory definition of public accommodation included a “golf course,”12 he rejected petitioner’s argument that its competitions are only places of public accommodation in the areas open to spectators. The operator of a public accommodation could not, in his view, “create private enclaves within the facility... and thus relegate the ADA to hop-scotch areas.” 984 F. Supp. 1320, 1326-1327 (Ore. 1998). Accordingly, he denied petitioner’s motion for summary judgment.

At trial, petitioner did not contest the conclusion that Martin has a disability covered by the ADA, or the fact “that his disability prevents him from walking the course during a round of golf.” 994 F. Supp. 1242,1244 (Ore. 1998). Rather, petitioner asserted that the condition of walking is a substantive rule of competition, and that waiving it as to any individual for any reason would fundamentally alter the nature of the competition. Petitioner’s evidence included the testimony of a number of experts, among them some of the greatest golfers in history. Arnold Palmer,13 Jack Nicklaus,14 and Ken Venturi15 explained that fatigue can be a critical factor in a tournament, particularly on the last day when psychological pressure is at a maximum. Their testimony makes it clear that, in their view, permission to use a cart might well give some players a competitive advantage over other players who must walk. They did not, however, express any opinion on whether a cart would give Martin such an advantage.16

Rejecting petitioner’s argument that an individualized inquiry into the necessity of the walking rule in Martin’s case would be inappropriate, the District Court stated that it had "the independent duty to inquire into the purpose of the rule at issue, and to ascertain whether there can be a reasonable modification made to accommodate plaintiff without frustrating the purpose of the rule” and thereby fundamentally altering the nature of petitioner’s tournaments. Id., at 1246. The judge found that the purpose of the rule was to inject fatigue into the skill of shotmaking, but that the fatigue injected “by walking the course cannot be deemed significant under normal circumstances.” Id., at 1250. Furthermore, Martin presented evidence, and the judge found, that even with the use of a cart, Martin must walk over a mile during an 18-hole round,17 and that the fatigue he suffers from coping with his disability is “undeniably greater” than the fatigue his able-bodied competitors endure from walking the course. Id., at 1251. As the judge observed:

“[FJlaintiff is in significant pain when he walks, and even when he is getting in and out of the cart. With each step, he is at risk of fracturing his tibia and hemorrhaging. The other golfers have to endure the psychological stress of competition as part of their fatigue; Martin has the same stress plus the added stress of pain and risk of serious injury. As he put it, he would gladly trade the cart for a good leg. To perceive that the cart puts him — with his condition — at a competitive advantage is a gross distortion of reality.” Id., at 1251-1252.

As a result, the judge concluded that it would “not fundamentally alter the nature of the PGA Tour’s game to accommodate him with a cart.” Id., at 1252. The judge accordingly entered a permanent injunction requiring petitioner to permit Martin to use a cart in tour and qualifying events.

On appeal to the Ninth Circuit, petitioner did not challenge the District Court’s rejection of its claim that it was exempt as a “private club,” but it renewed the contention that during a tournament the portion of the golf course “ ‘behind the ropes’ is not a public accommodation because the public has no right to enter it.” 204 F. 3d 994, 997 (2000). The Court of Appeals viewed that contention as resting on the incorrect assumption that the competition among participants was not itself public. The court first pointed out that, as with a private university, “the fact that users of a facility are highly selected does not mean that the facility cannot be a public accommodation.” Id., at 998.18 In its opinion, the competition to enter the select circle of PGA TOUR and NIKE TOUR golfers was comparable because “[a]ny member of the public who pays a $3000 entry fee and supplies two letters of recommendation may try out in the qualifying school.” Id., at 999. The court saw “no justification in reason or in the statute to draw a line beyond which the performance of athletes becomes so excellent that a competition restricted to their level deprives its situs of the character of a public accommodation.” Ibid. Nor did it find a basis for distinguishing between “use of a place of public accommodation for pleasure and use in the pursuit of a living.” Ibid. Consequently, the Court of Appeals concluded that golf courses remain places of public accommodation during PGA tournaments. Ibid.

On the merits, because there was no serious dispute about the fact that permitting Martin to use a golf cart was both a reasonable and a necessary solution to the problem of providing him access to the tournaments, the Court of Appeals regarded the central dispute as whether such permission would “fundamentally alter” the nature of the PGA TOUR or NIKE TOUR. Like the District Court, the Court of Appeals viewed the issue not as “whether use of carts generally would fundamentally alter the competition, but whether the use of a cart by Martin would do so.” Id., at 1001. That issue turned on “an intensively fact-based inquiry,” and, the court concluded, had been correctly resolved by the trial judge. In its words, “[a]ll that the cart does is permit Martin access to a type of competition in which he otherwise could not engage because of his disability.” Id., at 1000.

The day after the Ninth Circuit ruled in Martin’s favor, the Seventh Circuit came to a contrary conclusion in a ease brought against the USGA by a disabled golfer who failed to qualify for “America’s greatest — and most democratic — golf tournament, the United States Open.” Olinger v. United States Golf Assn., 205 F. 3d 1001 (2000).19 The Seventh Circuit endorsed the conclusion of the District Court in that case that “the nature of the competition would be fundamentally altered if the walking rule were eliminated because it would remove stamina (at least a particular type of stamina) from the set of qualities designed to be tested in this competition.” Id., at 1006 (internal quotation marks omitted). In the Seventh Circuit’s opinion, the physical ordeals endured by Ken Venturi and Ben Hogan when they walked to their Open victories in 1964 and 1950 amply demonstrated the importance of stamina in such a tournament.20 As an alternative basis for its holding, the court also concluded that the ADA does not require the USGA to bear “the administrative burdens of evaluating requests to waive the walking rule and permit the use of a golf cart.” Id., at 1007.

Although the Seventh Circuit merely assumed that the ADA applies to professional golf tournaments, and therefore did not disagree with the Ninth on the threshold coverage issue, our grant of certiorari, 530 U. S. 1306 (2000), encompasses that question as well as the conflict between those courts.

IV

Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U. S. C. § 12101(a)(2); see § 12101(a)(3) C‘[D]iserimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services”). Congress noted that the many forms such discrimination takes include “outright intentional exclusion” as well as the “failure to make modifications to existing facilities and practices.” § 12101(a)(5). After thoroughly investigating the problem, Congress concluded that there was a “compelling need” for a “clear and comprehensive national mandate” to eliminate discrimination against disabled individuals, and to integrate them “into the economic and social mainstream of American life.” S. Rep. No. 101-116, p. 20 (1989); H. R. Rep. No. 101-485, pt. 2, p. 50 (1990).

In the ADA, Congress provided that broad mandate. See 42 U. S. C. § 12101(b). In fact, one of the Act’s “most impressive strengths” has been identified as its “comprehensive character,” Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess., 197 (1989) (statement of Attorney General Thornburgh), and accordingly the Act has been described as “a milestone on the path to a more decent, tolerant, progressive society,” Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring). To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act),21 public services (Title II),22 and public accommodations (Title III).23 At issue now, as a threshold matter, is the applicability of Title III to petitioner’s golf tours and qualifying rounds, in particular to petitioner’s treatment of a qualified disabled golfer wishing to compete in those events.

Title III of the ADA prescribes, as a “[g]eneral rule”:

“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.” 42 U. S. C. § 12182(a).

The phrase “public accommodation” is defined in terms of 12 extensive categories,24 which the legislative history indicates “should be construed liberally” to afford people with disabilities "equal access” to the wide variety of establishments available to the nondisabled.25

It seems apparent, from both the general rule and the comprehensive definition of "public accommodation,” that petitioner’s golf tours and their qualifying rounds fit comfortably within the coverage of Title III, and Martin within its protection. The events occur on "golf eourse[s],” a type of place specifically identified by the Act as a public accommodation. § 12181(7)(L). In addition, at all relevant times, petitioner “leases” and "operates” golf courses to conduct its Q-School and tours. § 12182(a). As a lessor and operator of golf courses, then, petitioner must not discriminate against any “individual” in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of those courses. Ibid. Certainly, among the "privileges” offered by petitioner on the courses are those of competing in the Q-School and playing in the tours; indeed, the former is a privilege for which thousands of individuals from the general public pay, and the latter is one for which they vie. Martin, of course, is one of those individuals. It would therefore appear that Title III of the ADA, by its plain terms, prohibits petitioner from denying Martin equal access to its tours on the basis of his disability. Cf. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 209 (1998) (holding that text of Title II’s prohibition of discrimination by “public entities” against disabled individuals "unmistakably includes State prisons and prisoners within its coverage”).

Petitioner argues otherwise. To be clear about its position, it does not assert (as it did in the District Court) that it is a private club altogether exempt from Title Ill’s coverage. In fact, petitioner admits that its tournaments are conducted at places of public accommodation.26 Nor does petitioner contend (as it did in both the District Court and the Court of Appeals) that the competitors’ area “behind the ropes” is not a public accommodation, notwithstanding the status of the rest of the golf course. Rather, petitioner re-frames the coverage issue by arguing that the competing golfers are not members of the class protected by Title III of the ADA.27

According to petitioner, Title III is concerned with discrimination against “clients and customers” seeking to obtain “goods and services” at places of public accommodation, whereas it is Title I that protects persons who work at such places.28 As the argument goes, petitioner operates not a “golf course” during its tournaments but a “place of exhibition or entertainment,” 42 U. S. C. § 12181(7)(C), and a professional golfer such as Martin, like an actor in a theater production, is a provider rather than a consumer of the entertainment that petitioner sells to the public. Martin therefore cannot bring a claim under Title III because he is not one of the “‘clients or customers of the covered public accommodation.’”29 Rather, Martin’s claim of discrimination is “job-related”30 and could only be brought under Title I — but that Title does not apply because he is an independent contractor (as the District Court found) rather than an employee.

The reference to “clients or customers” that petitioner quotes appears in 42 U. S. C. § 12182(b)(l)(A)(iv), which states: “For purposes of clauses (i) through (iii) of this sub-paragraph, the term 'individual or class of individuals’ refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.” Clauses (i) through (iii) of the subparagraph prohibit public accommodations from discriminating against a disabled “individual or class of individuals” in certain ways31 either directly or indirectly through contractual arrangements with other entities. Those clauses make clear on the one hand that their prohibitions cannot be avoided by means of contract, while clause (iv) makes clear on the other hand that contractual relationships will not expand a public accommodation’s obligations under the subparagraph beyond its own clients or customers.

As petitioner recognizes, clause (iv) is not literally applicable to Title Ill’s general rule prohibiting discrimination against disabled individuals.32 Title Ill’s broad general rule contains no express “clients or customers” limitation, § 12182(a), and § 12182(b)(l)(A)(iv) provides that its limitation is only “[f]or purposes of” the clauses in that separate subparagraph. Nevertheless, petitioner contends that clause (iv)’s restriction of the subparagraph’s coverage to the clients or customers of public accommodations fairly describes the scope of Title Ill’s protection as a whole.

We need not decide whether petitioner’s construction of the statute is correct, because petitioner’s argument falters even on its own terms. If Title Ill’s protected class were limited to “clients or customers,” it would be entirely appropriate to classify the golfers who pay petitioner $3,000 for the chance to compete in the Q-Sehool and, if successful, in the subsequent tour events, as petitioner’s clients or eustom-ers. In our view, petitioner’s tournaments (whether situated at a “golf course” or at a “place of exhibition or entertainment”) simultaneously offer at least two “privileges” to the public — that of watching the golf competition and that of competing in it. Although the latter is more difficult and more expensive to obtain than the former, it is nonetheless a privilege that petitioner makes available to members of the general public. In consideration of the entry fee, any golfer with the requisite letters of recommendation acquires the opportunity to qualify for and compete in petitioner’s tours. Additionally, any golfer who succeeds in the open qualifying rounds for a tournament may play in the event. That petitioner identifies one set of clients or customers that it serves (spectators at tournaments) does not preclude it from having another set (players in tournaments) against whom it may not discriminate. It would be inconsistent with the literal text of the statute as well as its expansive purpose to read Title Ill’s coverage, even given petitioner’s suggested limitation, any less broadly.33

Our conclusion is consistent with case law in the analogous context of Title II of the Civil Rights Act of 1964, 78 Stat. 243,42 U. S. C. § 2000a et seq. Title II of that Act prohibits public accommodations from discriminating on the basis of race, color, religion, or national origin. §2000a(a). In. .Daniel v. Paul, 395 U.S. 298, 306 (1969), applying Title II to the Lake Nixon Club in Little Rock, Arkansas, we held that the definition of a “place of exhibition or entertainment,” as a public accommodation, covered participants “in some sport or activity” as well as “spectators or listeners.” We find equally persuasive two lower court opinions applying Title II specifically to golfers and golf tournaments. In Evans v. Laurel Links, Inc., 261 F. Supp. 474, 477 (ED Ya. 1966), a class action brought to require a commercial golf establishment to permit black golfers to play on its course, the District Court held that Title II “is not limited to spectators if the place of exhibition or entertainment provides facilities for the public to participate in the entertainment.”34 And in Wesley v. Savannah, 294 R Supp. 698 (SD Ga. 1969), the District Court found that a private association violated Title II when it limited entry in a golf tournament on a municipal course to its own members but permitted all (and only) white golfers who paid the membership and entry fees to compete.35 These eases support our conclusion that, as a public accommodation during its tours and qualifying rounds, petitioner may not discriminate against either spectators or competitors on the basis of disability.

V

As we have noted, 42 U. S. C. § 12182(a) sets forth Title Ill’s general rule prohibiting public accommodations from discriminating against individuals because of their disabilities. The question whether petitioner has violated that rule depends on a proper construction of the term “discrimination,” which is defined by Title III to include

“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.” § 12182(b)(2)(A)(ii) (emphasis added).

Petitioner does not contest that a golf cart is a reasonable modification that is necessary if Martin is to play in its tournaments. Martin’s claim thus differs from one that might be asserted by players with less serious afflictions that make walking the course uncomfortable or difficult, but not beyond their capacity. In such cases, an accommodation might be reasonable but not necessary. In this case, however, the narrow dispute is whether allowing Martin to use a golf cart, despite the walking requirement that applies to the PGA TOUR, the NIKE TOUR, and the third stage of the Q-School, is a modification that would “fundamentally alter the nature” of those events.

In theory, a modification of petitioner’s golf tournaments might constitute a fundamental alteration in two different ways. It 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.36 Alternatively, a less significant change that has only a peripheral impact on the game itself might nevertheless give a disabled player, in addition to access to the competition as required by Title III, an advantage over others and, for that reason, fundamentally alter the character of the competition.37 We are not persuaded that a waiver of the walking rule for Martin would work a fundamental alteration in either sense.38

As an initial matter, we observe that the use of carts is not itself inconsistent with the fundamental character of the game of golf. From early on, the essence of the game has been shotmaking — using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.39 That essential aspect of the game is still reflected in the very first of the Rules of Golf, which declares: “The Game of Golf consists in playing a ball from the teeing ground into the hole by a stroke or successive strokes in accordance with the rules.” Rule 1-1, Rules of Golf, App. 104 (emphasis in original). Over the years, there have been many changes in the players’ equipment, in golf course design, in the Rules of Golf, and in the method of transporting clubs from hole to hole.40 Originally, so few clubs were used that each player could carry them without a bag. Then came golf bags, caddies, carts that were pulled by hand, and eventually motorized carts that carried players as well as clubs. “Golf carts started appearing with increasing regularity on American golf courses in the 1950’s. Today they are everywhere. And they are encouraged. For one thing, they often speed up play, and for another, they are great revenue producers.”41 There is nothing in the Rules of Golf that either forbids the use of carts or penalizes a player for using a cart. That set of rules, as we have observed, is widely accepted in both the amateur and professional golf world as the rules of the game.42 The walking rule that is contained in petitioner’s hard cards, based on an optional condition buried in an appendix to the Rules of Golf,43 is not an essential attribute of the game itself.

Indeed,, the walking rule is not an indispensable feature of tournament golf either. As already mentioned, petitioner permits golf carts to be used in the SENIOR PGA TOUR, the open qualifying events for petitioner’s tournaments, the first two stages of the Q-School, and, until 1997, the third stage of the Q-Sehool as well. See swpm, at 665-667. Moreover, petitioner allows the use of carts during certain tournament rounds in both the PGA TOUR and the NIKE TOUR. See supra, at 667, and n. 6. In addition, although the USGA enforces a walking rule in most of the tournaments that it sponsors, it permits carts in the Senior Amateur and the Senior Women’s Amateur championships.44

Petitioner, however, distinguishes the game of golf as it is generally played from the game that it sponsors in the PGA TOUR, NIKE TOUR, and (at least recently) the last stage of the Q-Sehool — golf at the “highest level.” According to petitioner, “[t]he goal of the highest-level competitive athletics is to assess and compare the performance of different competitors, a task that is meaningful only if the competitors are subject to identical substantive rules.”45 The waiver of any possibly “outcome-affecting” rule for a contestant would violate this principle and therefore, in petitioner’s view, fundamentally alter the nature of the highest level athletic event.46 The walking rule is one such rule, petitioner submits, because its purpose is “to inject the element of fatigue into the skill of shot-making,”47 and thus its effect may be the critical loss of a stroke. As a consequence, the reasonable modification Martin seeks would fundamentally alter the nature of petitioner’s highest level tournaments even if he were the only person in the world who has both the talent to compete in those elite events and a disability sufficiently serious that he cannot do so without using a cart.

The force of petitioner’s argument is, first of all, mitigated by the fact that golf is a game in which it is impossible to guarantee that all competitors will play under exactly the same conditions or that an individual’s ability will be the sole determinant of the outcome. For example, changes in the weather may produce harder greens and more head winds for the tournament leader than for his closest pursuers. A lucky bounce may save a shot or two.48 Whether such happenstance events are more or less probable than the likelihood that a golfer afflicted with Klippel-Trenaunay-Weber Syndrome would one day qualify for the NIKE TOUR and PGA TOUR, they at least demonstrate that pure chance may have a greater impact on the outcome of elite golf tournaments than the fatigue resulting from the enforcement of the walking rule.

Further, the factual basis of petitioner’s argument is undermined by the District Court’s finding that the fatigue from walking during one of petitioner’s 4-day tournaments cannot be deemed significant. The District Court credited the testimony of a professor in physiology and expert on fatigue, who calculated the calories expended in walking a golf course (about five miles) to be approximately 500 calories— “ ‘nutritionally . .. less than a Big Mae.’ ” 994 F. Supp., at 1250. What is more, that energy is expended over a 5-hour period, during which golfers have numerous intervals for rest and refreshment. In fact, the expert concluded, because golf is a low intensity activity, fatigue from the game is primarily a psychological phenomenon in which stress and motivation are the key ingredients. And even under conditions of severe heat and humidity, the critical factor in fatigue is fluid loss rather than exercise from walking.

Moreover, when given the option of using a cart, the majority of golfers in petitioner’s tournaments have chosen to walk, often to relieve stress or for other strategic reasons.49 As NIKE TOUR member Eric Johnson testified, walking allows him to keep in rhythm, stay warmer when it is chilly, and develop a better sense of the elements and the course than riding a cart.50

Even if we accept the factual predicate for petitioner’s argument — that the walking rule is “outcome affecting” because fatigue may adversely affect performance — -its legal position is fatally flawed. Petitioner’s refusal to consider Martin’s personal circumstances in deciding whether to accommodate his disability runs counter to the clear language and purpose of the ADA. As previously stated, the ADA was enacted to eliminate discrimination against “individuals” with disabilities, 42 U. S. C. § 12101(b)(1), and to that end Title III of the Act requires without exception that any “policies, practices, or procedures” of a public accommodation be reasonably modified for disabled “individuals” as necessary to afford access unless doing so would fundamentally alter what is offered, § 12182(b)(2)(A)(ii). To comply with this command, an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration. See S. Rep. No. 101-116, at 61; H. R. Rep. No. 101-485, pt. 2, at 102 (public accommodations “are required to make decisions based on facts applicable to individuals”). Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) (“[W]hether a person has a disability under the ADA is an individualized inquiry”).

To be sure, the waiver of an essential rule of competition for anyone would fundamentally alter the nature of petitioner’s tournaments. As we have demonstrated, however, the walking rule is at best peripheral to the nature of petitioner’s athletic events, aad thus it might be waived in individual cases without working a fundamental alteration. Therefore, petitioner’s claim that all the substantive rules for its “highest-level” competitions are sacrosanct and cannot be modified under any circumstances is effectively a contention that it is exempt from Title Ill’s reasonable modification requirement. But that provision carves out no exemption for elite athletics, and given Title Ill’s coverage not only of places of “exhibition or entertainment” but also of “golf eourse[s],” 42 U. S. C. §§ 12181(7)(C), (L), its application to petitioner’s tournaments cannot be said to be unintended or unexpected, see §§ 12101(a)(1), (5). Even if it were, “the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S., at 212 (internal quotation marks omitted).51

Under the ADA’s basic requirement that the need of a disabled person be evaluated on an individual basis, we have no doubt that allowing Martin to use a golf cart would not fundamentally alter the nature of petitioner’s tournaments. As we have discussed, the purpose of the walking rule is to subject players to fatigue, which in turn may influence the outcome of tournaments. Even if the rule does serve that purpose, it is an uncontested finding of the District Court that Martin “easily endures greater fatigue even with a cart than his able-bodied competitors do by walking.” 994 F. Supp., at 1252. The purpose of the walking rule is therefore not compromised in the slightest by allowing Martin to use a cart. A modification that provides an exception to a peripheral tournament rule without impairing its purpose cannot be said to “fundamentally alter” the tournament. What it can be said to do, on the other hand, is to allow Martin the chance to qualify for, and compete in, the athletic events petitioner offers to those members of the public who have the skill and desire to enter. That is exactly what the ADA requires.52 As a result, Martin’s request for a waiver of the walking rule should have been granted.

The ADA admittedly imposes some administrative burdens on the operators of places of public accommodation that could be avoided by strictly adhering to general rules and policies that are entirely fair with respect to the able-bodied but that may indiscriminately preclude access by qualified persons with disabilities53 But surely, in a ease of this kind, Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose, as well as the letter, of the rule before determining that no accommodation would be tolerable.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

1

After the trial of the case, the name of the NIKE TOUR was changed to the Buy.com TOUR.

2

Generally, to maintain membership in a tour for the succeeding year, rather than go through the Q-Sehool again, a player must perform at a certain level.

3

Instead, Appendix I to the Rules of Golf lists a number of “optional” conditions, among them one related to transportation: “If it is desired to require players to walk in a competition, the following condition is suggested:

“Players shall walk at all times during a stipulated round.” App. 125.

4

The PGA TOUR hard card provides: “Players shall walk at all times during a stipulated round unless permitted to ride by the PGA TOUR Rules Committee.” Id., at 127. The NIKE TOUR hard card similarly requires walking unless otherwise permitted. Id., at 129. Additionally, as noted, golf carts have not been permitted during the third stage of the Q-School since 1997. Petitioner added this recent prohibition in order to “approximate] a PGA TOUR event as closely as possible.” Id., at 152.

5

994 F. Supp. 1242,1251 (Ore. 1998).

6

See, e.g., App. 156-160 (Notices to Competitors for 1997 Bob Hope Chrysler Classic, 1997 AT&T Pebble Beach National Pro-Am, and 1997 Quad City Classic).

7

Title 42 U. S. C. § 12102 provides, in part:

“The term ‘disability’ means, with respect to an individual—

“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual....”

8

Before then, even when Martin was in extreme pain, and was offered a cart, he declined. Tr. 564-565.

9

When asked about the other teams’ reaction to Martin’s use of a cart, the Stanford coach testified:

“Q. Was there any complaint ever made to you by the coaches when he was allowed a cart that that gave a competitive advantage over the—

“A. Any complaints? No sir, there were exactly — exactly the opposite. Everybody recognized Casey for the person he was, and what he was doing with his life, and every coach, to my knowledge, and every player wanted Casey in the tournament and they welcomed him there.

“Q. Did anyone contend that that constituted an alteration of the competition to the extent that it didn’t constitute the game to your level, the college level?

“A. Not at all, sir.” App. 208.

10

Title 42 U. S. C. §12187 provides: “The provisions of this subchapter shall not apply to private dubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 (42 U. S. C. §2000-a(e)) or to religious organizations or entities controlled by religious organizations, induding places of worship.”

11

See §12181(7).

12

§ 12181(7)(L).

13

“Q. And fatigue is one of the factors that can cause a golfer at the PGA Tour level to lose one stroke or more?

“A. Oh, it is. And it has happened.

“Q. And can one stroke be the difference between winning and not winning a tournament at the PGA Tour level?

“A. As I said, I’ve lost a few national opens by one stroke.” App. 177.

14

“Q. Mr. Nicklaus, what is your understanding of the reason why in these competitive events ... that competitors are required to walk the course?

“A. Well, in my opinion, physical fitness and fatigue are part of the game of golf.” Id., at 190.

15

“Q. So are you telling the court that this fatigue factor tends to accumulate over the course of the four days of the tournament?

“A. Oh definitely. There’s no doubt.

"Q. Does this fatigue factor that you’ve talked about, Mr. Venturi, affect the manner in which you — you perform as a professional out on the golf course?

“A. Oh, there’s no doubt, again, but that, that fatigue does play a big part. It will influence your game. It will influence your shot-making. It will influence your decisions.” Id., at 236-237.

16

“Q. Based on your experience, do you believe that it would fundamentally alter the nature of the competition on the PGA Tour and the Nike Tour if competitors in those events were permitted to use golf carts?

“A. Yes, absolutely.

“Q. Why do you say so, sir?

“A. It would — it would take away the fatigue factor in many ways. It would — it would change the game.

“Q. Now, when you say that the use of carts takes away the fatigue factor, it would be an aid, et cetera, again, as I understand it, you are not testifying now about the plaintiff You are just talking in general terms?

“A. Yes, sir.” Id., at 238. See also id., at 177-178 (Palmer); id., at 191 (Nicklaus).

17

“In the first place, he does walk while on the course — even with a cart, he must move from cart to shot and back to the cart. In essence, he still must walk approximately 25% of the course. On a course roughly five miles in length, Martin will walk 1¼ miles.” 994 F. Supp., at 1251.

18

It explained: “For example, Title III includes in its definition 'secondary, undergraduate, or post-graduate private sehoolfs].’ 42 U. S. C. § 12181(7)(J). The competition to enter the most elite private universities is intense, and a relatively select few are admitted. That fact clearly does not remove the universities from the statute’s definition as places of public accommodation.” 204 F. 3d, at 998.

19

The golfer in the Seventh Circuit case, Ford Olinger, suffers from bilateral avascular necrosis, a degenerative condition that significantly hinders his ability to walk.

20

For a description of the conditions under which they played, see Olinger v. United States Golf Assn., 205 F. 3d, at 1006-1007.

21

42 U. S. C. §§12111-12117.

22

§§12131-12165.

23

§§12181-12189.

24

“(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

“(B) a restaurant, bar, or other establishment serving food or drink;

“(G) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

“(D) an auditorium, convention center, lecture hall, or other place of public gathering;

“(B) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

“(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

“(G) a terminal, depot, or other station used for specified public transportation;

“(H) a museum, library, gallery, or other place of display or collection;

“(I) a park, zoo, amusement park, or other place of recreation;

“(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

“(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

“(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.” § 12181(7) (emphasis added).

25

S. Rep. No. 101-116, p. 59 (1989); H. R. Rep. No. 101-485, pt. 2, p. 100 (1990).

26

Reply Brief for Petitioner 1-2.

27

Martin complains that petitioner’s failure to make this exact argument below predudes its assertion here. However, the Title III coverage issue was raised in the lower courts, petitioner advanced this particular argument in support of its position on the issue in its petition for certiorari, and the argument was fully briefed on the merits by both parties. Given the importance of the issue, we exerase our discretion to consider it. See Harris Trust and Sav. Bank v. Salomon Smith Barney Inc., 580 U.S. 238,245-246, n. 2 (2000); Carlson v. Green, 446 U.S. 14,17, n. 2 (1980).

28

Brief for Petitioner 10,11.

29

Id. at 19 (quoting 42 U. S. C. § 12182(b)(l)(A)(iv)).

30

Brief for Petitioner 15; see also id., at 16 (Martin’s daim "is nothing more than a straightforward diserimination-in-the-workplaee complaint”).

31

Clause (i) prohibits the denial of participation, dause (ii) partidpation in unequal benefits, and dause (iii) the provision of separate benefits.

32

Brief for Petitioner 20 (dause (iv) “applies directly just to subsection 12182(b)”); Reply Brief for Petitioner 4, n. 1 (dause (iv) “does not apply directly to the general provision prohibiting discrimination”).

33

Contrary to the dissent’s suggestion, our view of the Q-School does not make “everyone who seeks a job” at a public accommodation, through “an open tryout” or otherwise, “a customer.” Post, at 697 (opinion of Scaxia, J.). Unlike those who successfully apply for a job at a place of public accommodation, or those who successfully bid for a contract, the golfers who qualify for petitioner’s tours play at their own pleasure (perhaps, but not necessarily, for prize money), and although they commit to playing in at least 15 tournaments, they are not bound by any obligations typically associated with employment. See, e. g., App. 260 (trial testimony of PGA commissioner Timothy Finchem) (petitioner lacks control over when and where tour members compete, and over their manner of performance outside the rules of competition). Furthermore, unlike athletes in “other professional sports, such as baseball,” post, at 697, in which players are employed by their clubs, the golfers on tour are not employed by petitioner or any related organizations. The record does not support the proposition that the purpose of the Q-School “is to hire,” ibid., rather than to narrow the field of participants in the sporting events that petitioner sponsors at plaees of public accommodation.

34

Title II of the avil Rights Act of 1964 includes in its definition of “public accommodation” a “place of exhibition or entertainment” but does not specifically list a “golf course” as an example. See 42 U. S. C. §2000a(b).

35

Under petitioner’s theory, Title II would not preclude it from discriminating against golfers on racial grounds. App. 197; Tr. of Oral Arg. 11-12.

36

Cf. post, at 701 (Scaua, J., dissenting) ("I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game”).

37

Accord, post, at 703 (Scaua, J., dissenting) (“The statute seeks to assure that a disabled person’s disability will not deny him equal access to (among other things) competitive sporting events — not that his disability will not deny him an equal chance to win competitive sporting events”).

38

As we have noted, 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. 42 U. S. C. § 12182(b)(2)(A)(ii). Whether one question should be decided before the others likely will vary from case to case, for in logic there seems to be no necessary priority among the three. In routine cases, the fundamental alteration inquiry may end with the question whether a rule is essential. Alternatively, the specifics of the claimed disability might be examined within the context of what is a reasonable or necessary modification. Given the concession by petitioner that the modification sought is reasonable and necessary, and given petitioner’s reliance on the fundamental alteration provision, we have no occasion to consider the alternatives in this case.

39

Golf is an ancient game, tracing its ancestry to Scotland, and played by such notables as Mary Queen of Scots and her son James. That shot-making has been the essence of golf since early in its history is reflected in the first recorded rules of golf, published in 1744 for a tournament on the Leith Links in Edinburgh:

“Articles & Laws in Playing at Golf

“1. You must Tee your Ball, within a Club’s length of the [previous] Hole.

“2. Your Tee must be upon the Ground.

“3. You are not to change the Ball which you Strike off the Tee.

“4. You are not to remove, Stones, Bones or any Break Club for the sake of playing your Ball, Except upon the fair Green/& that only/ within a Club’s length of your Ball.

“5. If your Ball comes among Water, or any Watery Filth, you are at liberty to take out your Ball & bringing it behind the hazard and Teeing it, you may play it with any Club and allow your Adversary a Stroke for so getting out your Ball.

"6. If your Balls be found anywhere touching one another, You are to lift the first Ball, till you play the last.

“7. At Holling, you are to play your Ball honestly for the Hole, and, not to play upon your Adversary’s Ball, not lying in your way to the Hole.

“8. If you should lose your Ball, by its being taken up, or any other way, you are to go back to the Spot, where you struck last & drop another Ball, And allow your Adversary a Stroke for the misfortune.

“9. No man at Holling his Ball, is to be allowed, to mark his way to the Hole with his Club or, any thing else.

“10. If a Ball be stopp’d by any person, Horse, Dog, or any thing else, The Ball so stop’d must be play’d where it lyes.

“11. If you draw your Club, in order to Strike & proceed so far in the Stroke, as to be bringing down your Club; If then, your Club shall break, in, any way, it is to be Accounted a Stroke.

“12. He, whose Ball lyes farthest from the Hole is obliged to play first. “13. Neither Trench, Ditch, or Dyke, made for the preservation of the Links, nor the Scholar’s Holes or the Soldier’s Lines, Shall be accounted a Hazard; But the Ball is to be taken out/Teed/and play’d with any Iron Club.” K Chapman, Rules of the Green 14-15 (1997).

40

See generally M. Campbell, The Random House International Encyclopedia of Golf 9-57 (1991); Golf Magazine’s Encyclopedia of Golf 1-17 (2d ed. 1993).

41

Olinger v. United States Golf Assn., 205 F. 3d 1001, 1003 (CA7 2000).

42

On this point, the testimony of the immediate past president of the USGA (and one of petitioner’s witnesses at trial) is illuminating:

“Tell the court, if you would, Ms. Bell, who it is that plays under these Rules of Golf... ?

“A. Well, these are the rules of the game, so all golfers. These are for all people who play the game.

“Q. So the two amateurs that go out on the weekend to play golf together would — would play by the Rules of Golf?

“A. We certainly hope so.

“Q. Or a tournament that is conducted at a private country dub for its members, is it your understanding that that would typically be conducted wider the Rules of Golf?

“A. Well, that’s — that’s right. If you want to play golf, you need to play by these rules.” App. 239.

43

See n. 3, supra.

44

Furthermore, the ÚSGA’s handicap system, used by over 4 million amateur golfers playing on courses rated by the USGA, does not consider whether a player walks or rides in a cart, or whether she uses a caddy or carries her own clubs. Rather, a player’s handicap is determined by a formula that takes into account the average score in the 10 best of her 20 most recent rounds, the difficulty of the different courses played, and whether or not a round was a “tournament” event.

45

Brief for Petitioner 13.

46

Id., at 37.

47

994 F. Supp., at 1250.

48

A drive by Andrew Magee earlier this year produced a result that he neither intended nor expected. While the foursome ahead of him was still on the green, he teed off on a 322-yard par four. To his surprise, the ball not only reached the green, but also bounced off Tom Byrum’s putter and into the hole. Davis, Magee Gets Ace on Par-4, Ariz. Republic, Jan. 26,2001, p. C16,2001WL 8510792.

49

That has been so not only in the SENIOR PGA TOUR and the first two stages of the Q-Sehool, bat also, as Martín himself noticed, in the third stage of the Q-Sehool after petitioner permitted everyone to ride rather than just waiving the walking rule for Martin as required by the District Court’s injunction.

50

App. 201. See also id., at 179-180 (deposition testimony of Gerry Nor-quist); id., at 225-226 (trial testimony of Harry Toscano).

51

Henee, petitioner’s questioning of the ability of courts to apply the reasonable modification requirement to athletic competition is a complaint more properly directed to Congress, which drafted the ADA’s coverage broadly, than to us. Even more misguided is Justice Scaua’s suggestion that Congress did not place that inquiry into the hands of the courts at all. According to the dissent, the game of golf as sponsored by petitioner is, like all sports games, the sum of its “arbitrary rules,” and no one, including courts, “can pronounce one or another of them to be ‘nonessential’ if the rulemaker (here the PGA TOUR) deems it to be essential.” Post, at 700. Whatever the merit of Justice Scaua’s postmodern view of “What Is [Sport],” ibid., it is clear that Congress did not enshrine it in Title III of the ADA. While Congress expressly exempted “private clubs or establishments” and “religious organizations or entities” from Title Ill’s coverage, 42 U. S. C. § 12187, Congress made no such exception for athletic competitions, much less did it give sports organizations carte blanche authority to exempt themselves from the fundamental alteration inquiry by deeming any rule, no matter how peripheral to the competition, to be essential. In short, Justice Scaua’s reading of the statute renders the word “fundamentally” largely superfluous, beeause it treats the alteration of any rule governing an event at a public accommodation to be a fundamental alteration.

52

On this fundamental point, the dissent agrees. See post, at 699 (“The PGA TOUR cannot deny respondent access to that game because of his disability”).

53

However, we think petitioner’s contention that the task of assessing requests for modifications will amount to a substantial burden is overstated. As Martin indicates, in the three years since he requested the use of a cart, no one else has sued the PGA, and only two other golfers (one of whom is Olinger) have sued the USGA for a waiver of the walking rule. In addition, we believe petitioner’s point is misplaced, as nowhere in §12182(b)(2)(A)(ii) does Congress limit the reasonable modification requirement only to requests that are easy to evaluate.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

In my view today’s opinion exercises a benevolent compassion that the law does not place it within our power to impose. Hie judgment distorts the text of Title III, the structure of the ADA, and common sense. I respectfully dissent.

I

The Court holds that a professional sport is a place of public accommodation and that respondent is a “custome[r]” of “competition” when he practices his profession. Ante, at 679-680. It finds, ante, at 680, that this strange conclusion is compelled by the “literal text” of Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S. C. § 12101 et seq., by the “expansive purpose” of the ADA, and by the fact that Title II of the Civil Rights Act of 1964, 42 U. S. C. § 2000a(a), has been applied to an amusement park and public golf courses. I disagree.

The ADA has three separate titles: Title I covers employment discrimination, Title II covers discrimination by government entities, and Title III covers discrimination by-places of public accommodation. Title II is irrelevant to this case. Title I protects only “employees” of employers who have 15 or more employees, §§ 12112(a), 12111(5)(A). It does not protect independent contractors. See, e. g., Birchem v. Knights of Columbus, 116 F. Bd 310, 312-813 (CA8 1997); cf. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992). Respondent claimed employment discrimination under Title I, but the District Court found him to be an independent contractor rather than an employee.

Respondent also claimed protection under § 12182 of Title III. That section applies only to particular places and persons. The place must be a “place of public accommodation,” and the person must be an “individual” seeking “enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of the covered place. § 12182(a). Of course a court indiscriminately invoking the “sweeping” and “expansive” purposes of the ADA, ante, at 675, 680, could argue that when a place of public accommodation denied any “individual,” on the basis of his disability, anything that might be called a “privilegie],” the individual has a valid Title III claim. Cf ante, at 677. On such an interpretation, the employees and independent contractors of every place of public accommodation come within Title III: The employee enjoys the “privilege” of employment, the contractor the “privilege” of the contract.

For many reasons, Title III will not bear such an interpretation. The provision of Title III at issue here (§ 12182, its principal provision) is a public-accommodation law, and it is the traditional understanding of public-accommodation laws that they provide rights for customers. “At common law, innkeepers, smiths, and others who made profession of a public employment, were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571 (1995) (internal quotation marks omitted). See also Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964). This understanding is clearly reflected in the text of Title III itself. Section 12181(7) lists 12 specific types of entities that qualify as “public accommodations,” with a follow-on expansion that makes it clear what the “enjoyment of the goods, services, etc.,” of those entities consists of — and it plainly envisions that the person “enjoying” the “public accommodation” will be a customer. For example, Title III is said to cover an “auditorium” or “other place of public gathering,” § 12181(7)(D). Thus, “gathering” is the distinctive enjoyment derived from an auditorium; the persons “gathering” at an auditorium are presumably covered by Title III, but those contracting to clean the auditorium are not. Title III is said to cover a “zoo” or “other place of recreation,” § 12181(7)(I). The persons “recreat[ing3” at a “zoo” are presumably covered, but the animal handlers bringing in the latest panda are not. The one place where Title III specifically addresses discrimination by places of public accommodation through “contractual” arrangements, it makes clear that discrimination against the other party to the contract is not covered, but only discrimination against “clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.” § 12182(b)(l)(A)(iv). And finally, the regulations promulgated by the Department of Justice reinforce the conclusion that Title Ill’s protections extend only to customers. “The purpose of the ADA’s public accommodations requirements,” they say, “is to ensure accessibility to the goods offered by a public accommodation.” 28 CFR, ch. 1, pt. 36, App. B, p. 650 (2000). Surely this has nothing to do with employees and independent contractors.

If there were any doubt left that § 12182 covers only clients and customers of places of public accommodation, it is eliminated by the fact that a contrary interpretation would make a muddle of the ADA as a whole. The words of Title III must be read “in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept of Treasury, 489 U.S. 803, 809 (1989). Congress expressly excluded employers of fewer than 15 employees from Title I. The mom-and-pop grocery store or laundromat need not worry about altering the nonpublie areas of its place of business to accommodate handicapped employees — or about the litigation that failure to do so will invite. Similarly, since independent contractors are not covered by Title I, the small business (or the large one, for that matter) need not worry about making special accommodations for the painters, electricians, and other independent workers whose services are contracted for from time to time. It is an entirely unreasonable interpretation of the statute to say that these exemptions so carefully crafted in Title I are entirely eliminated by Title III (for the many businesses that are places of public accommodation) because employees and independent contractors “enjoy’’ the employment and contracting that such places provide. The only distinctive feature of places of public accommodation is that they accommodate the public, and Congress could have no conceivable reason for according the employees and independent contractors of such businesses protections that employees and independent contractors of other businesses do not enjoy.

The United States apparently agrees that employee claims are not cognizable under Title III, see Brief for United States as Amicus Curiae 18-19, n. 17, but despite the implications of its own regulations, see 28 CFR, ch. 1, pt. 36, App. B, at 650, appears to believe (though it does not explicitly state) that claims of independent contractors are cognizable. In a discussion littered with entirely vague statements from the legislative history, ef. ante, at 674-675, the United States argues that Congress presumably wanted independent contractors with private entities covered under Title III because independent contractors with governmental entities are covered by Title II, see Brief for United States as Amicus Curiae 18, and n. 17 — a line of reasoning that does not commend itself to the untutored intellect. But since the United States does not provide (and I cannot conceive of) any possible construction of the terms of Title III that will exclude employees while simultaneously covering independent contractors, its concession regarding employees effectively concedes independent contractors as well. Title III applies only to customers.

The Court, for its part, assumes that conclusion for the sake of argument, ante, at 679-680, but pronounces respondent to be a “customer” of the PGA TOUR or of the golf courses on which it is played. That seems to me quite incredible. The PGA TOUR is a professional sporting event, staged for the entertainment of a live and TV audience, the receipts from whom (the TV audience’s admission price is paid by advertisers) pay the expenses of the tour, including the cash prizes for the winning golfers. The professional golfers on the tour are no more “enjoying” (the statutory term) the entertainment that the tour provides, or the facilities of the golf courses on which it is held, than professional baseball players “enjoy” the baseball games in which they play or the facilities of Yankee Stadium. To be sure, professional ballplayers participate in the games, and use the ball-fields, but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch. And professional golfers are no different. It makes not a bit of difference, insofar as their “customer” status is concerned, that the remuneration for their performance (unlike most of the remuneration for ballplayers) is not fixed but contingent — viz., the purses for the winners in the various events, and the compensation from product endorsements that consistent winners are assured. The compensation of many independent contractors is contingent upon their success — real estate brokers, for example, or insurance salesmen.

As the Court points out, the ADA specifically identifies golf courses as one of the covered places of public accommodation. See § 12181(7)(L) ("a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation”); and the distinctive “goo[d], servic[e], faeilit[y], privi-legie], advantag[e], or accommodatio[n]” identified by that provision as distinctive to that category of place of public accommodation is “exercise or recreation.” Respondent did not seek to “exercise” or “recreate” at the PGA TOUR events; he sought to make money (which is why he is called a professional golfer). He was not a customer buying recreation or entertainment; he was a professional athlete selling it. That is the reason (among others) the Court’s relianee upon Civil Rights Act cases like Daniel v. Paul, 895 U.S. 298 (1969), see ante, at 681, is misplaced. A professional golfer’s practicing his profession is not comparable to John Q. Public’s frequenting “a 232-aere amusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar.” Daniel, swpra, at 301.

The Court relies heavily upon the Q-School. It says that petitioner offers the golfing public the “privilege” of “competing in the Q-School and playing in the tours; indeed, the former is a privilege for which thousands of individuals from the general public pay, and the latter is one for which they vie.” Ante, at 677. But the Q-School is no more a “privilege” offered for the general public’s “enjoyment” than is the California Bar Exam.1 It is a competition for entry into the PGA TOUR — an open tryout, no different in principle from open casting for a movie or stage production, or walk-on tryouts for other professional sports, such as baseball. See, e. g., Amateurs Join Pros for New Season of HBO’s “Sopranos,” Detroit News, Dec. 22, 2000, p. 2 (20,000 attend open casting for “The Sopranos”); Bill Zack, Atlanta Braves, Sporting News, Feb. 6, 1995 (1,300 would-be players attended an open tryout for the Atlanta Braves). It may well be that some amateur golfers enjoy trying to make the grade, just as some amateur actors may enjoy auditions, and amateur baseball players may enjoy open tryouts (I hesitate to say that amateur lawyers may enjoy taking the California Bar Exam). But the purpose of holding those tryouts is not to provide entertainment; it is to hire. At bottom, open tryouts for performances to be held at a place of public accommodation are no different from open bidding on contracts to cut the grass at a place of public accommodation, or open applications for any job at a place of public accommodation. Those bidding, those applying — and those trying out — are not converted into customers. By the Court’s reasoning, a business exists not only to sell goods and services to the public, but to provide the “privilege” of employment to the public; wherefore it follows, like night the day, that everyone who seeks a job is a customer.2

HH HH

Having erroneously held that Title III applies to the customers” of professional golf who consist of its practitioners, the Court then erroneously answers — or to be accurate simply ignores — a second question. The ADA requires covered businesses to make such reasonable modifications of "policies, practices, or procedures” as are necessary to “afford” goods, services, and privileges to individuals with disabilities; but it explicitly does not require “modifications [that] would fundamentally alter the nature” of the goods, services, and privileges. § 12182(b)(2)(A)(ii). In other words, disabled individuals must be given access to the same goods, services, and privileges that others enjoy. The regulations state that Title III “does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individuals with disabilities.” 28 CFR § 36.807 (2000); see also 28 CFR, ch. 1, pt. 86, App. B, at 650. As one Court of Appeals has explained:

“The common sense of the statute is that the content of the goods or services offered by a place of public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. Had Congress purposed to impose so enormous a burden on the retail sector of the economy and so vast a supervisory responsibility on the federal courts, we think it would have made its intention clearer and would at least have imposed some standards. It is hardly a feasible judicial function to decide whether shoestores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.” Doe v. Mutual of Omaha Ins. Co., 179 F. 3d 557, 560 (CA7 1999).

Since this is so, even if respondent here is a consumer of the "privilege” of the PGA TOUR competition, see ante, at 677, I see no basis for considering whether the rules of that competition must be altered. It is as irrelevant to the PGA TOUR’s compliance with the statute whether walking is essential to the game of golf as it is to the shoe store’s compliance whether "pairness” is essential to the nature of shoes. If a shoe store wishes to sell shoes only in pairs it may; and if a golf tour (or a golf course) wishes to provide only walk-around golf, it may. The PGA TOUR cannot deny respondent access to that game because of his disability, but it need not provide him a game different (whether in its essentials or in its details) from that offered to everyone else.

Since it has held (or assumed) professional golfers to be customers "enjoying” the “privilege” that consists of PGA TOUR golf; and since it inexplicably regards the rules of PGA TOUR golf as merely "policies, practices, or procedures” by which access to PGA TOUR golf is provided, the Court must then confront the question whether respondent’s requested modification of the supposed policy, practice, or procedure of walking would "fundamentally alter the nature” of the PGA TOUR game, § 12182(b)(2)(A)(ii). The Court attacks this “fundamental alteration” analysis by asking two questions: first, whether the “essence” or an “essential aspect” of the sport of golf has been altered; and second, whether the change, even if not essential to the game, would give the disabled player mi advantage over others and thereby "fundamentally alter the character of the competition.” Ante, at 688. It answers no to both.

Before considering the Court’s answer to the first question, it is worth pointing out that the assumption which underlies that question is false. Nowhere is it writ that PGA TOUR golf must be classic “essential” golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules — if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”) they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone — not even the Supreme Court of the United States — can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U. S. Const., Art. I, §8, el. 8, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question. To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain objeet. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is "essential.” Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields — all are arbitrary and none is essential. The only support for any of them is tradition and (in more modem times) insistence by what has come to be regarded as the ruling body of the sport — both of which factors support the PGA TOUR’s position in the present case. (Many, indeed, consider walking to be the central feature of the game of golf — hence Mark Twain’s classic criticism of the sport: “a good walk spoiled.”) I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game. If the PGA TOUR competitors were required to dribble a large, inflated ball and put it through a round hoop, the game could no longer reasonably be called golf. But this criterion — destroying recognizability as the same generic game — is surely not the test of "essentialness” or “fundamentalness” that the Court applies, since it apparently thinks that merely changing the diameter of the cup might "fundamentally alter” the game of golf, ante, at 682.

Having concluded that dispensing with the walking rule would not violate federal-Platonic “golf” (and, implicitly, that it is federal-Platonic golf, and no other, that the PGA TOUR can insist upon), the Court moves on to the second part of its test: the competitive effects of waiving this nonessential rule. In this part of its analysis, the Court first finds that the effects of the change are "mitigated” by the fact that in the game of golf weather, a “lucky bounce,” and "pure chance” provide different conditions for each competitor and individual ability may not “be the sole determinant of the outcome.” Ante, at 687. I guess that is why those who follow professional golfing consider Jack NicMaus the luckiest golfer of all time, only to be challenged of late by the phenomenal luck of Tiger Woods. The Court’s empiricism is unpersuasive. ‘Ture chance” is randomly distributed among the players, but allowing respondent to use a cart gives him a “lucky” break every time he plays. Pure chance also only matters at the margin — a stroke here or there; the cart substantially improves this respondent’s competitive prospects beyond a couple of strokes. But even granting that there are significant nonhuman variables affecting competition, that fact does not justify adding another variable that always favors one player.

In an apparent effort to make its opinion as narrow as possible, the Court relies upon the District Court’s finding that even with a cart, respondent will be at least as fatigued as everyone else. Ante, at 690. This, the Court says, proves that competition will not be affected. Par from thinking that reliance on this finding cabins the effect of today’s opinion, I think it will prove to be its most expansive and destructive feature. Because step one of the Court’s two-part inquiry into whether a requested change in a sport will “fundamentally alter [its] nature,” § 12182(b)(2)(A)(ii), consists of an utterly unprincipled ontology of sports (pursuant to which the Court is not even sure whether golf’s “essence” requires a 3-ineh hole), there is every reason to think that in future cases involving requests for special treatment by would-be athletes the second step of the analysis will be determinative. In resolving that second step — determining whether waiver of the “nonessential” rule will have an impermissible “competitive effect” — by measuring the athletic capacity of the requesting individual, and asking whether the special dispensation would do no more than place him on a par (so to speak) with other competitors, the Court guarantees that future eases of this sort will have to be decided on the basis of individualized factual findings. Which means that future cases of this sort will be numerous, and a rich source of lucrative litigation. One can envision the parents of a Little League player 'with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the Md four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)

The statute, of course, provides no basis for this individualized analysis that is the Court’s last step on a long and misguided journey. The statute seeks to assure that a disabled person’s disability will not deny him equal access to (among other things) competitive sporting events — not that his disability will not deny him an equal chance to win competitive sporting events. The latter is quite impossible, since the very nature of competitive sport is the measurement, by. uniform rules, of unevenly distributed excellence. This unequal distribution is precisely what determines the winners and losers — and artificially to "even out” that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game. That is why the "handicaps” that are customary in social games of golf — which, by adding strokes to the scores of the good players and subtracting them from scores of the bad ones, "even out” the varying abilities — are not used in professional golf. In the Court’s world, there is one set of rules that is “fair with respect to the able-bodied” but "individualized” rules, mandated by the ADA, for “talented but disabled athletes.” Ante, at 691. The ADA mandates no such ridiculous thing. Agility, strength, speed, balance, quickness of mind, steadiness of nerves, intensity of concentration — these talents are not evenly distributed. No wild-eyed dreamer has ever suggested that the managing bodies of the competitive sports that test precisely these qualities should try to take account of the uneven distribution of God-given gifts when writing and enforcing the rules of competition. And I have no doubt Congress did not authorize misty-eyed judicial supervision of such a revolution.

* * *

My belief that today’s judgment is clearly in error should not be mistaken for a belief that the PGA TOUR clearly ought not allow respondent to use a golf cart. That is a close question, on which even those who compete in the PGA TOUR are apparently divided; but it is a different question from the one before the Court. Just as it is a different question whether the Little League ought to give disabled youngsters a fourth strike, or some other waiver from the rules that makes up for their disabilities. In both eases, whether they ought to do so depends upon (1) how central to the game that they have organized (and over whose rules they are the master) they deem the waived provision to be, and (2) how competitive — how strict a test of raw athletic ability in all aspects of the competition — they want their game to be. But whether Congress has said they must do so depends upon the answers to the legal questions I have discussed above — not upon what this Court sententiously decrees to be “ ‘decent, tolerant, [and] progressive/ ” ante, at 675 (quoting Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring)).

And it should not be assumed that today’s decent, tolerant, and progressive judgment will, in the long run, accrue to the benefit of sports competitors with disabilities. Now that it is clear courts will review the rules of sports for “fundamen-talness,” organizations that value their autonomy have every incentive to defend vigorously the necessity of every regulation. They may still be second-guessed in the end as to the Platonic requirements of the sport, but they will assuredly lose if they have at all wavered in their enforcement. The lesson the PGA TOUR and other sports organizations should take from this case is to make sure that the same written rules are set forth for all levels of play, and never voluntarily to grant any modifications. The second lesson is to end open tryouts. I doubt that, in the long run, even disabled athletes will be well served by these incentives that the Court has created.

Complaints about this case are not “properly directed to Congress,” ante, at 689, n. 51. They are properly directed to this Court’s Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are “places of public accommodation” to the competing athletes, and the athletes themselves “customers” of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable “essential” and “nonessential” rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one’s lack of ability (or at least no one’s lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and “everybody was finally equal.” K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997).

1

The California Bar Exam is covered by the ADA, by the way, because a separate provision of Title III applies to “examinations ... related to applications, licensing, certification, or eredentialing for secondary or post-secondary education, professional, or trade purposes.” 42 U. S. C. § 12189. If open tryouts were “privileges” under § 12182, and participants in the tryouts “customers,” § 12189 would have been unnecessary.

2

The Court suggests that respondent is not an independent contractor because he “play[s] at [his] own pleasure,” and is not subject to P6A TOUR control "over [his] manner of performance,” ante, at 680, n. 33. But many independent contractors — composers of movie music, portrait artists, script writers, and even (some would say) plumbers — retain at least as much control over when and how they work as does respondent, who agrees to play in a minimum of 15 of the designated PGA TOUR events, and to play by the rules that the PGA TOUR specifies. C£ Cbra-munity for Creative Non-Violence v. Reid, 490 U.S. 730, 751-753 (1989) (discussing independent contractor status of a sculptor). Moreover, although, as the Court suggests in the same footnote, in rare cases a PGA TOUR winner will choose to forgo the prize money (in order, for example, to preserve amateur status necessary for continuing participation in college play) he is contractually entitled to the prize money if he demands it, which is all that a contractual relationship requires.