United States District Court, D. Colorado
ORDER ON DEFENDANT CITY OF LITTLETON'S COMBINED
MOTION TO DISMISS AND 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 City of Littleton's Combined
Motion to Dismiss and Motion for Summary Judgment [filed
June 28, 2018; ECF No. 137]. For the reasons set forth
below, I grant the City's motion and
dismiss all claims filed against the City 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 and supplemental response briefs (ECF Nos. 144,
157)-not the unsupported facts contained in her response, for
which she provided no record citations (see ECF No.
144 at 1-5). 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).
is a non-profit organization offering a variety of
educational and training programs for the blind. Mot.,
Def.'s Statement of Facts ¶ 1, ECF No. 137 (admitted
in Pl.'s Resp. to Def.'s Statement of Facts 1, ECF
owns the McGeorge Mountain Terrace Apartments at 5871 South
Lowell Boulevard, Littleton, Colorado (the
“Apartments”). Id. ¶ 2 (also
Students reside at the Apartments while attending CCB
classes. Id. ¶ 3 (also admitted).
Lewis is legally blind. Id. ¶ 4 (also
Lewis attended classes at CCB on several occasions, including
the time frame from September through December 2013.
Id. ¶ 5 (also admitted).
Lewis resided at the Apartments in December 2013.
Id. ¶ 6 (also admitted).
December 12, 2013, Ms. Lewis took a Regional Transportation
District (“RTD”) bus from CCB to return to the
Apartments. Id. ¶ 7 (also admitted).
RTD bus dropped her off near the intersection of West Bowles
Avenue and South Lowell Boulevard. Id. ¶ 8
Lewis rode the bus with Shawn Spears, a CCB
instructor. Id. ¶ 9 (also admitted).
After she got off the bus, Ms. Lewis began walking west on
West Bowles Avenue to the corner of South Lowell Boulevard.
Id. ¶ 10 (also admitted).
Spears asked Ms. Lewis if she was “okay getting back to
[her] apartment.” Ms. Lewis responded, “Yeah. I
said, No, I've got it. I know where I'm going.
I'm-I'm fine.” Id. ¶ 11 (also
Lewis turned right (north) onto the east side of South Lowell
Boulevard to continue toward the Apartments. Id.
¶ 12 (also admitted).
Plaintiff “was familiar with the path of travel along
the east side of Lowell.” Final Pretrial Order 13
(Stipulation j), ECF No. 196.
Chubby's restaurant is located at 5826 South Lowell
Boulevard on the east side of the street. Def.'s
Statement of Facts ¶ 13 (also admitted).
area in front of Chubby's is a driveway/parking lot
fronting South Lowell Boulevard. Id. ¶ 14 (also
Lewis had difficulty distinguishing between the
driveway/parking lot of Chubby's and South Lowell
Boulevard. Id. ¶ 15 (also admitted).
Lewis wandered into South Lowell Boulevard. Id.
¶ 16 (also admitted).
Powers was driving in the northbound lane of South Lowell
Boulevard, and he hit Ms. Lewis with his vehicle.
Id. ¶ 17 (also admitted).
Lowell Boulevard and the Surrounding Area
driveway/parking lot in front of Chubby's and bordering
South Lowell Boulevard has been in substantially the same
condition since before 1992. Id. ¶ 18 (also
Other than the present lawsuit, the City is not aware of any
reports of dangerous sidewalk conditions in the area in front
of Chubby's. Id. ¶ 19 (revised to address
Plaintiff's denial based on semantics, see
Pl.'s Resp. to Def.'s Statement of Facts
Other than the incident involving Ms. Lewis, the City is not
aware of any accidents, incidents, or injuries in the area in
front of Chubby's due to any condition of the sidewalk.
Id. ¶ 20 (also admitted).
Chubby's owns the frontage area and parking lot.
Id. ¶ 21.
Chubby's has not contacted the City to request a repair
of drainage problems in the frontage area. Id.
Chubby's maintains its parking lot by resealing it
approximately bi-annually, filling in pot holes, and
restriping the parking spaces. But it has not performed
repairs, renovations, resurfacing, or reconstruction of its
parking lot or the curbs, sidewalks, or gutters along the
South Lowell ...