United States District Court, D. Colorado
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger Senior United States District Judge.
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.
Court exercises jurisdiction under 28 U.S.C. § 1331.
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
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
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).
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.
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. 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.
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.
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 ...