United States District Court, D. Colorado
ORDER ON DEFENDANT NATIONAL FEDERATION OF THE BLIND,
COLORADO'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 National Federation of the Blind,
Colorado's Motion for Summary Judgment [filed August
20, 2018; ECF No. 148]. Plaintiff sues NFBC for
negligence and a violation of the Rehabilitation Act of 1973.
For the reasons set forth below, I grant
NFBC's motion and dismiss all claims filed against NFBC
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., Resp., ECF
No. 177 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 organization whose members and leaders
provide advocacy and support to blind and visually impaired
Coloradans across the State. Mot., Def.'s Statement of
Facts ¶ 1, ECF No. 143 (admitted in Pl.'s Resp. to
Def.'s Statement of Facts 4, ECF No. 177).
does not receive any federal funding or financial assistance.
Id. ¶ 2. See Mot. Ex. B ¶ 15
(Affidavit of Scott Labarre, President of NFBC, stating that
NFBC has “never received any federal, financial
assistance” since he became President in
the time of the accident, Plaintiff was taking part in an
Assistive Technology Internship Program provided by CCB.
Def.'s Statement of Facts ¶ 3 (also admitted).
part of the program through CCB, Plaintiff attended training
sessions at a CCB facility at 2233 West Shepperd Avenue,
Littleton, Colorado. Id. ¶ 6 (also admitted).
Non-party Rocky Mountain Center for the Blind
(“RMCB”) owns the McGeorge Mountain Terrace
Apartments (the “Apartments”) located at 5871
South Lowell Boulevard, Littleton, Colorado. Id.
¶ 7 (also admitted).
Apartments were and are to be used to house students taking
part in CCB's programs. Id. ¶ 8 (also
Plaintiff was injured while traveling between the CCB
facility on West Shepperd Avenue and the Apartments.
Id. ¶ 9 (also admitted).
While walking north on Lowell Boulevard toward the
Apartments, Plaintiff became disoriented on the driveway of a
Chubby's Mexican Restaurant. Id. ¶ 10 (also
Famco owns the property upon which Chubby's is located.
Id. ¶ 11 (also admitted).
Plaintiff states that the sidewalk along the west side of
Chubby's is in poor shape and does not contain a
discernable curb between the sidewalk and the street.
Id. ¶ 12 (also admitted).
Plaintiff lost her way along the Chubby's driveway and
walked into traffic on Lowell Boulevard. Id. ¶
13 (also admitted).
parties vehemently disagree as to the nature of the
relationship between CCB and NFBC. NFBC insists that it is a
“completely separate” entity that shares office
space in the same building, and it disavows that it operates
or runs the CCB internship program in which Plaintiff was
enrolled. Def.'s Statement of Facts ¶¶ 4, 5.
But Plaintiff presents contrary evidence (including numerous
statements by Mr. Labarre, President of NFBC) that the
entities are closely associated. See Resp. 4-5 &
Exs. 40, 41, 43, 44, ECF Nos. 177-14, 177-15, 177-17, 177-18.
There is undoubtedly a genuine dispute here, but I need not
delve into it because this fact is not material for purposes
of this motion. In a separate Order issued today, I find that
CCB is not liable to Plaintiff, and I dismiss the negligence
and Rehabilitation Act claims against CCB. Accordingly, it
would be futile for Plaintiff to link NFBC to CCB for