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Brito v. Dunahay Properties, LLLP

United States District Court, D. Colorado

September 4, 2019

CARLOS BRITO, Plaintiff,


          Marcia S. Krieger Senior United States District Judge.

         THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment (# 41), the Plaintiff's Response (# 44), and the Defendants' Reply (# 45). For the reasons that follow, the Motion is denied.


         The Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. BACKGROUND[1]

         In this suit, Plaintiff Carlos Brito seeks injunctive relief for the Defendants' failure to comply with the Americans with Disabilities Act (ADA). Dunahay Properties (Dunahay) owns and leases the Village Inn restaurant located at 1403 Harrison Street in Colorado Springs to American Blue Ribbon Holdings (Holdings).

         In his Complaint (# 1), Mr. Brito brings one claim for discrimination under Title III of the ADA for discrimination in a place of public accommodation against both Defendants. The Complaint identifies a number of accessibility violations. The Defendants move for summary judgment (# 41), stating that they have made all but two of the modifications identified in the Complaint. The two remaining disputes concern a walkway from the public sidewalk to the restaurant entrance and the width of restroom stalls.


         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producers Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.


         Title III of the ADA prohibits discrimination against individuals with disabilities “in the full and equal enjoyment of public accommodations”. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). Generally, the failure to remove architectural barriers is discrimination under the ADA unless removal is not readily achievable.[2] 42 U.S.C. § 12182(b)(2)(A)(iv)-(v). Readily achievable is defined as what is “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). A plaintiff generally bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable. Colo. Cross Disability Coalition v. Hermanson Family LP I, 264 F.3d 999, 1005-06 (10th Cir. 2001). The defense that removal is not “readily achievable” is an affirmative defense, on which a defendant bears the burden of proof. Id. at 1006.

         Here, the Defendants argue that, because they have addressed all modifications identified in Mr. Brito's expert's report that they can readily achieve, the case is now moot. The Court disagrees.

         Clearly, the modifications that the Defendants have addressed are no longer at issue, but two disputes remain. The Defendants contend that two modifications cannot be “readily achieved” - restroom stalls cannot be made wheelchair accessible due to the size of the premises and a walkway from the public sidewalk would require the elimination of four parking spaces. Because these ...

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