United States District Court, D. Colorado
ORDER ON DEFENDANT COLORADO CENTER FOR THE
BLIND'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,
Colorado (the “City”); the National Federation of
the Blind, Colorado (“NFBC”); CZ Famco Holdings
LLC (“CZ Famco”); and Erma's Mexican Food,
Defendants except for Mr. Powers and Erma's have filed
motions to dismiss and/or for summary judgment. Before the
Court here is Defendant Colorado Center for the Blind's
Motion for Summary Judgment [filed August 17, 2018; ECF
No. 143]. Plaintiff sues CCB for negligence and a
violation of the Rehabilitation Act of 1973. For the reasons
set forth below, I grant CCB's motion
and dismiss all claims filed against CCB 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-not the unsupported facts for which she
provided no record citations. See, e.g., ECF No. 173
at 1-4. 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 South 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.
is a non-profit training center that offers a variety of
education and training programs for the blind. Mot.,
Def.'s Statement of Facts ¶ 1, ECF No. 143 (admitted
in Pl.'s Resp. to Def.'s Statement of Facts 4, ECF
generates revenue by entering into fees for service
arrangements on behalf of its students. Students'
expenses are generally paid for by state-run vocational
rehabilitation agencies in the state where the CCB resident
or participant resides. Id. ¶ 2 (also
does not receive federal funding. Id. ¶
part of CCB's program, students are required to take
cane-travel classes and are expected to take public
transportation. Students are informed of the expectation to
take public transportation before their arrival to the
program. Id. ¶ 4 (also admitted).
operates its training center at 2233 West Shepperd Avenue,
Littleton, Colorado 80120. Id. ¶ 5 (also
Rocky Mountain Center for the Blind (“RMCB”) owns
the McGeorge Mountain Terrace Apartments at 5871 South Lowell
Boulevard in Littleton, Colorado (the
“Apartments”). Id. ¶ 6 (also
is located about two miles from the Apartments. Id.
¶ 7 (also admitted).
purchased the Apartments so that CCB would have a residence
for its students. Id. ¶ 8 (also admitted).
Plaintiff is legally blind. Id. ¶ 9 (also
Plaintiff attended classes at CCB on several occasions,
including September 2013 through December 2013. She
participated in CCB's Independence Training Program and
was not on an “individualized education plan.”
Id. ¶ 10 (also admitted).
December 2013, Plaintiff resided at the Apartments.
Id. ¶ 11 (also admitted).
part of CCB's program, its cane-travel instructors teach
proper cane technique and work on routes from CCB to the
Apartments. Id. ¶ 12 (also admitted). A
restaurant called Chubby's is located at 5826 South
Lowell Boulevard, on the east side of South Lowell Boulevard
and between the bus stop referenced in this case and the
Apartments. Id. ¶ 13 (also admitted).
Erma's d/b/a “Chubby's” operates the
restaurant. Final Pretrial Order 13 (Stipulation o).
Famco owns the property on which Chubby's is located.
Id. (Stipulation p).
provides specific instruction on how to cross the
Chubby's driveway. Def.'s Statement of Facts ¶
15 (also admitted). As far as CCB was aware, the students had
done so without issue. Id.
Plaintiff received training on how to travel the route
between CCB and the Apartments, and specifically the route
between West Bowles Avenue and the Apartments, which includes
the area in front of Chubby's. Id. ¶
Plaintiff walked between the Apartments and West Bowles
Avenue, where the bus stop is (and which necessarily includes
the driveway or sidewalk area in front of Chubby's) more
than ten times a day, either for the bus or for shopping or
sometimes to escort other students with less-developed travel
skills. Id. ¶ 17 (also admitted).
December 12, 2013, Plaintiff took a public bus from CCB to
return home to the Apartments. Id. ¶ 18 (also
Plaintiff rode the bus that evening with Shawn Spears, who is
also blind and who is an instructor at CCB. Id.
¶ 19 (also admitted).
bus dropped Plaintiff off near the intersection of West
Bowles Avenue and South Lowell Boulevard. Id. ¶
20 (also admitted).
Plaintiff testified that Mr. Spears asked her if she was
“okay” getting back to her apartment and that she
responded as follows: “Yeah. I said, No, I've got
it. I know where I'm going. I'm-I'm fine.”
Id. ¶ 21 (also admitted).
Plaintiff “was familiar with the path of travel along
the east side of Lowell.” Final ...