United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
Michael E. Hegarty United States Magistrate Judge.
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
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:
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.
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
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
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.
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 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.
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.
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.
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.
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.
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
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
Statement of Facts
Court makes the following findings of fact viewed in the
light most favorable to Lewis, who is the non-moving party in
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.
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 ...