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Lewis v. Powers

United States District Court, D. Colorado

November 30, 2018

LUPITA LEWIS, Plaintiff,


          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, Colorado (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 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 with prejudice.


         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. 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).

         1. The 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.

         2. NFBC 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).

         3. NFBC 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 2005).[1]

         4. At 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).

         5. As 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).

         6. 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).

         7. The Apartments were and are to be used to house students taking part in CCB's programs. Id. ¶ 8 (also admitted).

         8. Plaintiff was injured while traveling between the CCB facility on West Shepperd Avenue and the Apartments. Id. ¶ 9 (also admitted).

         9. While walking north on Lowell Boulevard toward the Apartments, Plaintiff became disoriented on the driveway of a Chubby's Mexican Restaurant. Id. ¶ 10 (also admitted).

         10. CZ Famco owns the property upon which Chubby's is located. Id. ¶ 11 (also admitted).

         11. 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).

         12. Plaintiff lost her way along the Chubby's driveway and walked into traffic on Lowell Boulevard. Id. ¶ 13 (also admitted).

         The 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 liability purposes.

         II. ...

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