Lewis v. Powers

          ORDER ON DEFENDANT CZ FAMCO HOLDINGS LLC'S MOTION FOR SUMMARY JUDGMENT

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff 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. (“Erma's”).

         All 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.

         BACKGROUND

         I. Factual Background

         The 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).

         1. The 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.

         2. On 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 18, 2018).

         3. 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 in detail).

         4. 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.^[1]

         5. 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.

         6. 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.

         7. 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.^[2]

         8. Plaintiff testified under oath that she has not had any contact with anyone at Chubby's. Id. ¶ 7.

         9. Plaintiff “was familiar with the path of travel along the east side of Lowell.” Final Pretrial Order 13 (Stipulation j), ECF No. 196.

         10. 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 (also admitted).

         11. Plaintiff stopped and made sure she was lined up correctly to cross the driveway. Id. ¶ 9 (also admitted).

         12. 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).

         13. Plaintiff intended to cross the driveway that intersected the sidewalk on which she was walking north. Id. ¶ 11 (also admitted).

         14. Plaintiff believes she detected the intersecting driveway into Chubby's by a curb or drop off. Id. ¶ 12 (also admitted).

         15. Plaintiff recalls stepping off the curb and nothing further. Id. ¶ 13 (also admitted).

         16. Erma's Mexican Food, Inc., d/b/a “Chubby's” operates a restaurant at 5826 South Lowell Boulevard. Final Pretrial Order 13 (Stipulation o).

         17. 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.

         18. Other than the allegations in this lawsuit, ^[3] 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 5-6).^[4]

         19. Plaintiff wandered into South Lowell Boulevard. Id. ¶ 15 (also admitted).

         20. CZ 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. Id. (same).

         21. 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 semantics).

         22. Plaintiff has never spoken to Mr. Czarnek. Id. ¶ 18 (also admitted).

         23. 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).

         24. No new construction or improvements have been done to the Chubby's building, parking lot, driveway, and sidewalk areas since before 1992. Id. ¶ 20 (also admitted).

         25. The 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).

         26. 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).

         27. 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).

         28. CZ 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 admitted).

         29. CZ Famco has not performed repairs, renovations, resurfacing, or reconstruction of its parking lot or the curbs, sidewalks, or gutters along the South Lowell ...