Lewis v. Powers

          ORDER ON DEFENDANT CITY OF LITTLETON'S COMBINED MOTION TO DISMISS AND 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 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.

         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.^[1] 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).

         The Accident

         1. CCB 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 No. 157).

         2. CCB owns the McGeorge Mountain Terrace Apartments at 5871 South Lowell Boulevard, Littleton, Colorado (the “Apartments”). Id. ¶ 2 (also admitted).

         3. Students reside at the Apartments while attending CCB classes. Id. ¶ 3 (also admitted).

         4. Ms. Lewis is legally blind. Id. ¶ 4 (also admitted).

         5. Ms. Lewis attended classes at CCB on several occasions, including the time frame from September through December 2013. Id. ¶ 5 (also admitted).

         6. Ms. Lewis resided at the Apartments in December 2013. Id. ¶ 6 (also admitted).

         7. On December 12, 2013, Ms. Lewis took a Regional Transportation District (“RTD”) bus from CCB to return to the Apartments. Id. ¶ 7 (also admitted).

         8. The RTD bus dropped her off near the intersection of West Bowles Avenue and South Lowell Boulevard. Id. ¶ 8 (also admitted).

         9. Ms. Lewis rode the bus with Shawn Spears, a CCB instructor.^[2] Id. ¶ 9 (also admitted).

         10. 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).

         11. Mr. 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 admitted).

         12. Ms. Lewis turned right (north) onto the east side of South Lowell Boulevard to continue toward the Apartments. Id. ¶ 12 (also admitted).

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

         14. 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).

         15. The area in front of Chubby's is a driveway/parking lot fronting South Lowell Boulevard. Id. ¶ 14 (also admitted).

         16. Ms. Lewis had difficulty distinguishing between the driveway/parking lot of Chubby's and South Lowell Boulevard. Id. ¶ 15 (also admitted).

         17. Ms. Lewis wandered into South Lowell Boulevard. Id. ¶ 16 (also admitted).

         18. Mr. Powers was driving in the northbound lane of South Lowell Boulevard, and he hit Ms. Lewis with his vehicle. Id. ¶ 17 (also admitted).

         South Lowell Boulevard and the Surrounding Area

         19. The 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 admitted).

         20. 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 2).^[3]

         21. 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).

         22. Chubby's owns the frontage area and parking lot. Id. ¶ 21.^[4]

         23. Chubby's has not contacted the City to request a repair of drainage problems in the frontage area. Id. ¶ 22.^[5]

         24. 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 ...