Lewis v. Powers

          ORDER ON DEFENDANT COLORADO CENTER FOR THE BLIND'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, Colorado (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 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.

         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-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).

         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 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.

         2. CCB 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 No. 173).

         3. CCB 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 admitted).

         4. CCB does not receive federal funding. Id. ¶ 3.^[1]

         5. As 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).

         6. CCB operates its training center at 2233 West Shepperd Avenue, Littleton, Colorado 80120. Id. ¶ 5 (also admitted).

         7. 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 admitted).

         8. CCB is located about two miles from the Apartments. Id. ¶ 7 (also admitted).

         9. RMCB purchased the Apartments so that CCB would have a residence for its students. Id. ¶ 8 (also admitted).

         10. Plaintiff is legally blind. Id. ¶ 9 (also admitted).

         11. 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).

         12. In December 2013, Plaintiff resided at the Apartments. Id. ¶ 11 (also admitted).

         13. As 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).

         14. CZ Famco owns the property on which Chubby's is located. Id. (Stipulation p).

         15. CCB 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.^[2]

         16. 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. ¶ 16.^[3]

         17. 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).

         18. On December 12, 2013, Plaintiff took a public bus from CCB to return home to the Apartments. Id. ¶ 18 (also admitted).

         19. Plaintiff rode the bus that evening with Shawn Spears, who is also blind and who is an instructor at CCB. Id. ¶ 19 (also admitted).

         20. The bus dropped Plaintiff off near the intersection of West Bowles Avenue and South Lowell Boulevard. Id. ¶ 20 (also admitted).

         21. 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).

         22. Plaintiff “was familiar with the path of travel along the east side of Lowell.” Final ...