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Lewis v. Powers

United States District Court, D. Colorado

March 15, 2017

LUPITA LEWIS, Plaintiff,
v.
JAMES T. POWERS, NATIONAL FEDERATION FOR THE BLIND, COLORADO, COLORADO CENTER FOR THE BLIND, CITY OF LITTLETON, COLORADO, and CZ FAMBO HOLDINGS LLC d/b/a Chubby's, Defendants.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          Michael E. Hegarty United States Magistrate Judge.

         Before the Court is Defendant National Federation for the Blind, Colorado's (“NFBC”) Motion for Summary Judgment [filed December 21, 2016; ECF No. 73]. The motion is fully briefed, and the Court finds oral argument would not materially assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court grants in part and denies in part the NFBC's motion.[1]

         BACKGROUND

         II. Procedural History

         Plaintiff Lupita Lewis (“Lewis”) initiated this action on December 12, 2015, then filed the operative First Amended Verified Complaint (“FAC”) as a matter of course on February 11, 2016. ECF No. 11. To provide context for the Court's analysis, the Court will set forth the following pertinent allegations asserted by Lewis in the FAC:

         Lewis was diagnosed with an eye disease when she was seven years old. She lost her sight over several years, and at all relevant times she has been and remains legally blind.

         Defendant Colorado Center for the Blind (“CCB”) is located in the City of Littleton (City) and “provides innovative teaching techniques, daily challenges and self-confidence that are the building blocks of independence, opportunity and success” for visually disabled persons. Lewis, a resident of Oregon at the time, attended CCB three times. First, in May and/or June 2012, Lewis participated in CCB's Assistive Technology internship program through the Oregon Federation for the Blind (“OFB”). She was tasked by OFB to vet CCB's program and evaluate its instructors so that OFB could determine whether to send its participants to the center. Lewis also wished to hone her city navigation skills because she had been living in rural DeSchutes County for a significant time, and navigation skills for rural and urban environments are different. At all relevant times, CCB required its participants to take public transportation to travel around the metropolitan area, so that they might gain confidence in their ability to travel independently.

         Lewis returned to CCB from Oregon for the second time between February 2013 through mid-year, to participate again in the Assistive Technology Internship Program and returned a third time between September 2013 and early January 2014. Participants of the CCB program, including Lewis, resided at the McGeorge Mountain Terrace Apartments (the “Residence”). The Residence is a 24-unit apartment complex with two buildings located within the City about two miles from the CCB, and is situated north of W. Bowles Ave. (“Bowles”) and on the west side of South Lowell Blvd. (“Lowell”) (5871-73 S. Lowell Blvd., Littleton, Colorado). At all relevant times, Lowell and Bowles were public thoroughfares open to and used by the residents of the City and of Arapahoe and Jefferson Counties in Colorado.

         In late 2012 and/or early 2013, the sidewalk, curb, and gutters on the west side of Lowell were rebuilt by the Denver Water Department, but no work was done on the sidewalk, curb and gutters on the east side of Lowell. A handicapped crosswalk was constructed at the intersection of Lowell and Lowell Way. At the relevant time, there were two bus lines that ran between CCB and the Residence. The 36L bus line operated from the Littleton Downtown Station west along Bowles to Lowell and then north to the intersection of Lowell and Lowell Way. The 59 bus line stopped a short distance east of the northeast corner of Bowles and Lowell and then continued west on Bowles. The 59 bus stop was a short distance east of the northeast corner of Bowles and Lowell.

         For anyone, including visually disabled persons such as Lewis, to get from the 59 bus stop near the intersection of Bowles and Lowell to the Residence, the most direct route is to walk west on Bowles to Lowell, then north on the east side of Lowell to a crosswalk at the intersection of Lowell and Lowell Way (the “Intersection”), then go west across Lowell into the Residence. Defendant CZ Fambo Holdings LLC (“Chubby's”) is a restaurant located just north[2] of the Intersection. Anyone walking north on the east side of Lowell toward the Residence must traverse Chubby's164-foot frontage on Lowell (the “Frontage”), which leads into the parking lot. There is no discernable curb within the Frontage, other than the two-inch-or-less edge of the cement gutter on Lowell.

         On December 12, 2013, Lewis took the 59 bus to the Residence from the CCB at about 8:30 p.m. and started walking north toward the Residence on the east side of Lowell. At that time and place it was dark, but the weather was dry and visibility was good. That night Lewis wore an international orange parka and was navigating with her NFB-standard reflective white cane. However, Lewis lost her way in the Frontage and wandered into the traffic lanes of northbound Lowell. Defendant James T. Powers (“Powers”) turned north from Bowles onto Lowell and struck Lewis approximately 255 feet north of the Intersection. The impact threw Lewis 38 feet. Lewis suffered injuries, including without limitation moderate traumatic brain injury; a fractured right fibula; a torn left rotator cuff; cervical, thoracic, and lumbar pain and bulging and/or herniated discs; permanent impairment; severe post-traumatic stress disorder; and severe clinical depression. FAC, ECF No. 11.

         Based on these and other allegations, Lewis asserts four claims against Defendants: negligence against Powers; negligence against the entity Defendants National Federation for the Blind (“NFB”), NFBC, CCB, the City, and Chubby's; violations of the Rehabilitation Act and Title II of the Americans with Disabilities Act (“ADA”) against the “public entity” Defendants; and a violation of Title III of the ADA against Chubby's. Id. Lewis seeks recovery for compensatory damages and injunctive and declaratory relief pursuant to the statutes. Id. at 14-16.

         Powers, the City, and NFBC filed answers, but CCB and NFB responded to the FAC by filing motions to dismiss, arguing Plaintiff failed to allege plausible facts demonstrating they owed a duty of care to Lewis; the exclusive remedy for Lewis' claim for injuries was pursuant to the Colorado Premises Liability Act (“CPLA”); and they were not public entities under Title II of the ADA and the Rehabilitation Act, but even if they were, the Plaintiff failed to give notice of her claims as required by the Colorado Governmental Immunity Act (“CGIA”). ECF Nos. 33, 34. The Court granted NFB's motion and dismissed the claims against it, but granted the CCB's motion only as to the ADA claim and denied it as to the negligence and Rehabilitation Act claims. ECF No. 61.

         The case has proceeded through discovery, and NFBC filed the present motion on December 21, 2016, well before the April 24, 2017 deadline for dispositive motions. See ECF No. 53. NFBC argues that, like NFB, it did not purchase and does not own the apartment building at which Lewis resided at the relevant time, it has no relationship whatsoever with Lewis and, thus, does not owe her a duty of care, it is not a public entity necessary for the ADA claim, and it operated no program or activity from which Lewis was excluded or denied benefits necessary for the Rehabilitation Act claim.

         Lewis counters that her investigation of the entities demonstrates NFBC and CCB are “integrated enterprises” sufficient to hold the NFBC liable for her discrimination claims. ECF No. 78. She also requests that, if the evidence she has presented is insufficient to determine whether the entities are “integrated, ” she be permitted to take discovery on the issue before the Court resolves the motion. Id.

         NFBC replies that Lewis did not dispute any of its arguments in the motion but, rather, seeks to apply a test that has been previously applied only to employment discrimination claims which are not at issue here. Accordingly, NFBC argues that the test should not be applied; but, even if it were, the test would demonstrate CCB and NFBC are not “integrated enterprises.”

         I. Statement of Facts

         The Court makes the following findings of fact viewed in the light most favorable to Lewis, who is the non-moving party in this matter.

         1. A Special Warranty Deed executed January 13, 2012 reflects the purchase of property at 5871 S. Lowell Blvd., Littleton, CO 80123 in the amount of $2, 415, 000.00 by Rocky Mountain Center for the Blind (“RMCB”), a Colorado Non-Profit Corporation, from Friendly Property, LLC. Ex. B, ECF No. 73-2.

         2. On October 26, 2012, Scott C. Labarre, President of the NFBC, delivered a “report” at the NFBC Annual Convention during which he commended the NFBC's “chief program, ” the CCB, as “the living, breathing embodiment of who we are. It is the application of our philosophy to real ...


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