United States District Court, D. Colorado
ORDER ON DEFENDANT CZ FAMCO HOLDINGS LLC'S MOTION
FOR SUMMARY JUDGMENT
Michael E. Hegarty, United States Magistrate Judge.
Lupita Lewis, a visually impaired woman, was injured in
December 2013 in an automobile/pedestrian accident. Plaintiff
alleges that she was returning from the Colorado Center for
the Blind (“CCB”) in Littleton, Colorado, to her
residence when she became disoriented on the poorly designed
and maintained sidewalk area in front of Chubby's
restaurant. She wandered into the street and was struck by a
vehicle driven by Defendant James Powers. In addition to Mr.
Powers and the CCB, Plaintiff is suing the City of Littleton
(the “City”); the National Federation of the
Blind, Colorado (“NFBC”); CZ Famco Holdings LLC
(“CZ Famco”); and Erma's Mexican Food, Inc.
Defendants except for Mr. Powers and Erma's have filed
motions to dismiss and/or for summary judgment. Before the
Court here is Defendant CZ Famco Holding LLC's Motion for
Summary Judgment [filed August 20, 2018; ECF No.
149]. For the reasons set forth below, I
grant CZ Famco's motion and dismiss all
claims filed against it with prejudice.
evidence submitted reveals the following facts viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter. For the facts articulated by Plaintiff,
I consider only the well-supported facts contained in her
response brief (ECF No. 169)-not the unsupported facts for
which she provided no record citations (see Id. at
1-11). As the responding party, it is Plaintiff's burden
“to ensure that the factual dispute is portrayed with
particularity, without . . . depending on the trial court to
conduct its own search of the record.” Cross v.
Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004)
(quoting Downes v. Beach, 587 F.2d 469, 472 (10th
Cir. 1978)). The Court has no obligation “to comb the
record” to make Plaintiff's arguments for her.
See Mitchell v. City of Moore, 218 F.3d 1190, 1199
(10th Cir. 2000).
Court's Order granting the City's Combined Motion to
Dismiss and Motion for Summary Judgment contains a detailed
Statement of Facts as to the accident on December 12, 2013;
Plaintiff's residence at the McGeorge Mountain Terrace
Apartments at 5871 S. Lowell Boulevard, Littleton, Colorado
(the “Apartments”); the surrounding area; and
each Defendant's knowledge of the area and prior events
therein before the accident. I incorporate that Statement of
Facts by reference here because it includes Plaintiff's
positions and admissions and provides important background
information. Even so, I am mindful of the parties'
respective burdens under Federal Rule of Civil Procedure 56,
and my Order considers the evidence presented within the
parameters of that Rule.
the night of the accident on December 12, 2013, Plaintiff was
going to her residence from the CCB. Mot., Def.'s
Statement of Facts ¶ 1, ECF No. 149 (admitted in
Pl.'s Resp. to Def.'s Statement of Facts 4, ECF No.
169). She traveled by bus. See Mot. Ex. A, ECF No.
149-1 at 2 (excerpts from Plaintiff's deposition on May
Plaintiff was familiar with walking north on the sidewalk
past Chubby's in the evening. Def.'s Statement of
Facts ¶ 2 (also admitted). See also Mot. Ex. A
at 5 (“To enter the Chubby's driveway, there's
like a curb. You have to step off the edge of the driveway to
get across from the near side of the driveway to the far side
of the driveway to continue on walking north to get to Lowell
Way. And to continue walking on the sidewalk, you have to
cross this driveway because it intersects. And I remember
there was a small curb that my white cane detected . . . and
. . . my white cane detected that curb or drop-off to enter
the driveway . . . .”) (excerpts from Plaintiff's
deposition, in which she described the Chubby's driveway
Plaintiff testified under oath that she has never spoken with
anyone known to have any relationship with CZ Famco or with
any employee or owner of Chubby's about any difficulty
navigating the driveway when going past Chubby's.
Def.'s Statement of Facts ¶ 3.
Plaintiff testified under oath that she did not tell anyone
at Chubby's about any problems navigating the driveway
when going past Chubby's. Id. ¶ 4.
Plaintiff testified under oath that she does not know if any
other students at CCB told anyone at Chubby's about any
problems navigating the driveway. Id. ¶ 5.
Plaintiff testified under oath that she is not aware of
anyone at Chubby's who has notice of any problem with the
Chubby's driveway. Id. ¶ 6.
Plaintiff testified under oath that she has not had any
contact with anyone at Chubby's. Id. ¶ 7.
Plaintiff “was familiar with the path of travel along
the east side of Lowell.” Final Pretrial Order 13
(Stipulation j), ECF No. 196.
Before the accident, Plaintiff knew that she was crossing
Chubby's driveway, which enters Chubby's off South
Lowell Boulevard. Def.'s Statement of Facts ¶ 8
Plaintiff stopped and made sure she was lined up correctly to
cross the driveway. Id. ¶ 9 (also admitted).
Plaintiff oriented herself by listening to, and noting, that
there were only cars in the distance between her and the
intersection of Bowles and South Lowell Boulevard.
Id. ¶ 10 (also admitted).
Plaintiff intended to cross the driveway that intersected the
sidewalk on which she was walking north. Id. ¶
11 (also admitted).
Plaintiff believes she detected the intersecting driveway
into Chubby's by a curb or drop off. Id. ¶
12 (also admitted).
Plaintiff recalls stepping off the curb and nothing further.
Id. ¶ 13 (also admitted).
Erma's Mexican Food, Inc., d/b/a
“Chubby's” operates a restaurant at 5826
South Lowell Boulevard. Final Pretrial Order 13 (Stipulation
Michael H. Czarnek is the managing member of CZ Famco. Mot.
Ex. B, ECF 149-2, ¶ 1. The property upon which
Chubby's is located is owned by CZ Famco. Id.
¶ 2. Mr. Czarnek has personal knowledge of the property
going back to the 1960's. Id. ¶ 3.
Other than the allegations in this lawsuit,  Mr. Czarnek is
not aware of any physical condition of the sidewalk bordering
the Chubby's restaurant on the east side of South Lowell
Boulevard, the parking lot, or the driveway entering
Chubby's that creates any unreasonable risk or a
dangerous condition to the health or safety of the public in
general or to a blind person specifically. Def.'s
Statement of Facts ¶ 14 (revised to address
Plaintiff's denial based on semantics, see
Pl.'s Resp. to Def.'s Statement of Facts
Plaintiff wandered into South Lowell Boulevard. Id.
¶ 15 (also admitted).
Famco is not aware of any other blind pedestrians
“wandering” into the traffic lanes of South
Lowell Boulevard. Id. ¶ 16. However, it is
“aware blind persons have been seen in the roadway . .
. at multiple occasions.” see Pl.'s Resp.
to Def.'s Statement of Facts 6 (quoting CZ Famco's
written discovery responses). In addition, Chubby's
employees have assisted blind pedestrians in the parking lot.
Other than this lawsuit, CZ Famco is not aware of any
accidents, incidents, or injuries which have occurred due to
a condition of the sidewalk, parking lot, or the driveway on
the east side of South Lowell Boulevard bordering the
Chubby's restaurant. Def.'s Statement of Facts ¶
17 (revised to address Plaintiff's denial based on
Plaintiff has never spoken to Mr. Czarnek. Id.
¶ 18 (also admitted).
Other than this lawsuit, CZ Famco has never been advised or
told by Plaintiff or any other person about blind persons
complaining or having problems navigating north or south
along the sidewalk on the east side of South Lowell Boulevard
bordering Chubby's because of the condition of the
sidewalk, parking lot, or the driveway entering Chubby's.
Id. ¶ 19 (revised to address Plaintiff's
denial based on semantics).
new construction or improvements have been done to the
Chubby's building, parking lot, driveway, and sidewalk
areas since before 1992. Id. ¶ 20 (also
Chubby's building, parking lot, driveway, and sidewalk
areas along the frontage of South Lowell Boulevard have been
in the same, unaltered condition since before 1992 and indeed
since the 1960's. Id. ¶ 21 (also admitted).
There has not been any alteration or change to the
Chubby's building, parking lot, and sidewalk area that
affects or could affect the usability of the building or
facility, the parking lot and sidewalk area, or any part of
the above. Id. ¶ 22 (also admitted).
Only normal maintenance has been performed on the parking
lot, driveway, and sidewalk areas-none of which affects the
usability of the building, parking lot, or sidewalk.
Id. ¶ 23 (also admitted).
Famco seals the parking lot surface approximately
bi-annually, fills in pot poles in the parking lot, and
restripes the parking spaces. Id. ¶ 24 (also
Famco has not performed repairs, renovations, resurfacing, or
reconstruction of its parking lot or the curbs, sidewalks, or
gutters along the South Lowell ...