Lewis v. Powers et al

MOTION for Summary Judgment

D. Colo.December 21, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-2692-MEH LUPITA LEWIS, Plaintiff, v. JAMES T. POWERS, individually; NATIONAL FEDERATION FOR THE BLIND, a public foundation; NATIONAL FEDERATION FOR THE BLIND, COLORADO, a Colorado public foundation in good standing; COLORADO CENTER FOR THE BLIND, a Colorado public foundation in good standing; CZ FAMCO HOLDINGS LLC d/b/a CHUBBY’S, a Colorado LLC in good standing; and CITY OF LITTLETON, COLORADO Defendants. ______________________________________________________________________________ DEFENDANT NATIONAL FEDERATION OF THE BLIND, COLORADO’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ COMES NOW the Defendant, National Federation of the Blind, Colorado (incorrectly named above as “National Federation for the Blind, Colorado”), by and through the undersigned, John P. Craver, of White and Steele, P.C., and pursuant to Fed. R. Civ. P. 56, makes the following motion for summary judgment: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR. 7.1 Pursuant to D.C.Colo.L.CivR 7.1(b)(1), undersigned counsel made a reasonable good faith effort to confer with plaintiff’s counsel regarding the relief requested in this motion. The efforts to fulfill this duty consisted of: conversations between counsel for plaintiff and National Federation of the Blind, Colorado (NFBC), and a written demand to plaintiff to dismiss the Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 1 of 9 2 claims against NFBC on May 23, 2016. Plaintiff refused. Additionally, after the Court ruled on Motions to Dismiss filed by defendants National Federation for the Blind and Colorado Center for the Blind, and after the Court dismissed all claims against the National Federation for the Blind and granted the motion for the Colorado Center for the Blind in part by dismissing the claim under Title VII of the ADA, counsel for defendant again asked that the claims against NFBC be dismissed on November 2, 2016. Plaintiff’s counsel has not agreed to dismiss the claims against NFBC which has necessitated the filing of this motion. I. FACTUAL AND PROCEDURAL BACKGROUND This case arises from a motor vehicle accident which occurred on December 12, 2013, where defendant James T. Powers struck plaintiff who had wandered off the public sidewalk on the east side of Lowell causing injuries. At the time of the accident, plaintiff claims she was participating in an Assistive Technology Internship Program provided by the Colorado Center for the Blind (CCB). Plaintiff claims she resided at the McGeorge Mountain Terrace Apartments (the “Residence”) while participating in the CCB program. Plaintiff also claims that NFBC purchased the Residence in order to provide the Colorado Center for the Blind (CCB) a place for people to live while participating in CCB programs. However, it is undisputed that NFBC did not purchase the Residence, rather, the Rocky Mountain Center for the Blind (RMCB) purchased the Residence. Plaintiff claims that in order to get to the bus stop at the intersection of Bowles and Lowell, she had to traverse public sidewalks and a private driveway on the east side of Lowell in front of a Chubby’s restaurant. Plaintiff claims that the concrete and asphalt along a portion of the public sidewalk and private driveway in front of Chubby’s is cracked and without a Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 2 of 9 3 discernable curb sufficient to alert visually disabled persons to the edge of the sidewalk. Plaintiff claims that even though the City of Littleton rebuilt the sidewalk and curb on the west side of Lowell after the RMCB purchased the Residence, that the public sidewalk on the east side of Lowell was not similarly rebuilt. Plaintiff filed suit against NFBC making three claims for relief including negligence, violation of 42 U.S.C. §§ 12131-12138, and violation of 29 U.S.C. §701, et. seq. NFBC notes these are the same three claims for relief which plaintiff had against the National Federation for the Blind which were dismissed by the Court in their entirety by Order dated May 13, 2016 [#61]. II. ARGUMENT A. Plaintiff’s Negligence Claims Fail Because NFBC Didn’t Owe Plaintiff a Duty As noted by the Court in the Order on Motions to Dismiss [#61], in order for plaintiff to have a claim for negligence against NFBC, plaintiff must prove NFBC owed plaintiff a legal duty. Keller v. Koca, 111 P.3d 445, 447 (Colo. 2005). “A negligence claim fails where the law does not impose a duty on the defendant to act for the plaintiff’s benefit.” Id. Here plaintiff has argued nonfeasance on the part of NFBC, i.e. that there was a special relationship between NFBC and plaintiff such that the law imposed a duty on NFBC to bring the west side of Lowell (a public sidewalk and private driveway) into compliance with ADA standards. Specifically, plaintiff alleges NFBC purchased the Residence and therefore had a duty to its visually disabled beneficiaries to bring the west side of Lowell into compliance with ADA standards. Thus, plaintiff is required to prove there was a special relationship between NFBC and plaintiff in Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 3 of 9 4 order to justify imposing upon it a duty to act on the plaintiff’s behalf. Montoya v. Connolly’s Towing, Inc., 216 P.3d 98, 105 (Colo. App. 2008). Here, it is undisputed there was no special relationship between NFBC and plaintiff which would justify imposing a duty upon it to act to protect plaintiff. NFBC notes that the Court previously found no duty on behalf of CCB or NFB to act for the plaintiff because they did not purchase the Residence. See Order on Motions to Dismiss [#61] at page 11. Here, contrary to the allegations in the Complaint, it is undisputed that the Residence was purchased by the RMCB and not NFBC. See Affidavit of Michelle Chacon attached as Exhibit A and Warranty Deed attached as Exhibit B. It is undisputed that NFBC never owned the Residence at issue. Id. Thus, as with CCB and NFB, NFBC did not owe plaintiff any duty “to bring the west side of Lowell into compliance with ADA standards.” Additionally, just as with NFB and CCB, plaintiff’s injuries did not result from any failure of NFBC as an expert in performing its “special skills” and thus no special relationship on this basis gave rise to any duty of care to protect plaintiff. See Order on Motions to Dismiss [#61] at pages 11-13. There is also no special relationship based upon Section 504 of the Rehabilitation Act because plaintiff has not been denied participation in, the benefits of, or subject to discrimination under any program or activity by NFBC. Specifically, and as with NFB, NFBC is not involved with the Residence nor the individualized education program through CCB at issue. See Exhibit A. Therefore, and for the same reasons the Court previously dismissed the claims against NFB, there is no special relationship between plaintiff and NFBC which would impose a duty of care on NFBC. Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 4 of 9 5 Finally, there are no public policy factors which would impose a duty of care upon NFBC. Just as with NFB, there is no conduct by NFBC which led to plaintiff’s injuries. NFBC does not own and has never owned the Residence. See Exhibit A. NFBC does not operate or run the individualized education program plaintiff participate in with the CCB and which is at issue. See Exhibit A. NFBC has no relationship with plaintiff at all. See Exhibit A. Just as with NFB, the Court must find that NFBC does not owe any duty of care to the plaintiff and therefore plaintiff’s claim for negligence fails. See Order on Motions to Dismiss [#61] at page 15. NFBC asks this Court to enter an order dismissing plaintiff’s claim of negligence against it with prejudice and enter judgment in its favor. B. Plaintiff’s Claims Under Title II Fail Because NFBC Is Not a Public Entity Plaintiff’s second claim against NFBC is for violation of 42 U.S.C. §§ 12131-12138. Specifically, plaintiff alleges that she is a person with disability who has been “excluded from participation in or … denied the benefits of the services, programs or activities of a public entity.” First Amended Complaint at ¶ 72 – 79. Plaintiff claims that NFBC is a public entity. First Amended Complaint at ¶ 74. 42 U.S.C. § 12131 defines a public entity as: (A) any State or local government; (B) any department agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger corporation, and any commuter authority … . Here, it is undisputed that NFBC is not a State, local government or other instrumentality of a State or local government, or the National Railroad Passenger corporation. See Exhibit A. In fact, plaintiff conceded that CCB and NFB are not public entities governed by Title II of the Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 5 of 9 6 ADA. See Order on Motions to Dismiss [#61] at page 13, note 2. For these reasons, plaintiff’s third claim for relief against NFBC for violation of 42 U.S.C. §§ 12131-12138 is groundless, baseless, and must be dismissed with prejudice with judgment entered in defendant’s favor. C. Rehabilitation Act Claim Fails Plaintiff’s third claim against NFBC is for violation of 29 U.S.C. §701, et. seq. Specifically, plaintiff claims that NFBC is a public entity because it provides “education, housing … social services … or” because it is “established by two or more public entities” and it receives federal financial assistance. First Amended Complaint at ¶83. Further, plaintiff claims that NFBC intentionally excluded plaintiff from participation in, the benefits of or discriminated against her. First Amended Complaint at ¶86. As noted by this Court in its Order on Motions to dismiss, in order for plaintiff to have a claim for disability discrimination under the Rehabilitation Act, she must prove 1) she “is a qualified individual with a disability; 2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and 3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” See Order on Motions to Dismiss [#61] at page 16 citing Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). Further, plaintiff must show the discrimination by NFBC was intentional. Dorsey v. Pueblo Sch. dist. 60, 140 F. Supp.3d 1102, 1116 (D. Colo. 2015). Here, it is undisputed that plaintiff was not excluded from, denied benefits of any program or activity of NFBC which led to plaintiff’s injuries. It is undisputed that NFBC does not operate or run the individualized education program plaintiff participated in with the CCB and which is at issue. See Exhibit A. NFBC has no relationship with plaintiff at all. See Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 6 of 9 7 Exhibit A. The only allegation against NFBC in the First Amended Complaint is that it purchased the Residence. Contrary to the allegations in the Complaint, it is undisputed that the Residence was purchased by the RMCB and not NFBC. See Exhibit A and Warranty Deed attached as Exhibit B. It is undisputed that NFBC never owned the Residence at issue. Id. Thus, just as with NFB, plaintiff has failed to allege any conduct by NFBC related to or leading up to plaintiff’s injuries. For this reason, plaintiff’s fourth claim for relief for violation of 29 U.S.C. §701, et. seq. fails and must be dismissed with prejudice and judgment must enter in defendant’s favor. III. CONCLUSION In conclusion, just as with NFB, plaintiff has failed to allege a plausible claim for relief against NFBC and therefore all claims against it must be dismissed with prejudice and judgment entered in NFBC’s favor. WHEREFORE, NFBC requests this Court enter an order dismissing all claims against it with prejudice and enter judgment in favor of NFBC, and for such other and further relief as this Court deems just and proper. Respectfully submitted this 21st day of December, 2016. s/John P. Craver John P. Craver White and Steele, P.C. Dominion Towers, North Tower 600 17th Street, Suite 600N Denver, CO 80202-5406 Telephone: 303-296-2828 Facsimile: 303-296-3131 Email: jcraver@wsteele.com Attorneys for Defendant National Federation for the Blind, Colorado Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 7 of 9 8 CERTIFICATE OF SERVICE I hereby certify that on December 21, 2016, I electronically filed the foregoing, DEFENDANT NATIONAL FEDERATION OF THE BLIND, COLORADO’S MOTION FOR SUMMARY JUDGMENT, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Joseph C. Cohen, Jr., Esq. Joseph C. Cohen, P.C. 1901 West Littleton Boulevard, Suite 219 Littleton, Colorado 80120 jcc@jccpc.com Attorneys for Plaintiff Donald G. Moore, Esq. Deisch, Marion & Klaus, P.C. 851 Clarkson Street Denver, Colorado 80218 don_moore@deisch-marion.com Attorneys for Defendant Powers Scott C. LaBarre, Esq. LaBarre Law Offices, P.C. 1660 South Albion Road, #918 Denver, Colorado 80222 slabarre@labarrelaw.com Attorneys for Defendants National Federation for the Blind And National Federation for the Blind, Colorado Bradley D. Damm McElroy, Deutsch, Mulvaney & Carpenter, LLP 5600 South Quebec Street, Suite C-100 P.O. Box 4467 Greenwood Village, Colorado 80111 bdamm@mdmc-law.com Attorneys for Defendant National Federation of the Blind Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 8 of 9 9 Lauren M. Getsie, Esq. Paul E. Collins, Esq. Treece Alfrey Musat, P.C. 633 17th Street, Suite 2200 Denver, Colorado 80202 lgetsie@tamlegal.com pcollins@tamblaw.com Attorneys for Defendant Colorado Center for the Blind Andrew D. Ringel, Esq. Hall& Evans, LLC 1001 17th Street, Suite 300 Denver, Colorado 80202 ringela@hallevans.com Attorneys for Defendant City of Littleton Mark A. Sares, Esq. Harris, Karstaedt, Jamison & Powers, P.C. 10333 East Dry Creek Road, Suite 300 Englewood, Colorado 80112 msares@hkjp.com Attorneys for Defendant CZ Famco Holdings, LLC s/ Dawn Ross White and Steele, P.C. Dominion Towers, North Tower 600 17th Street, Suite 600N Denver, CO 80202-5406 Telephone: 303-296-2828 Facsimile: 303-296-3131 Case 1:15-cv-02692-MEH Document 73 Filed 12/21/16 USDC Colorado Page 9 of 9 Case 1:15-cv-02692-MEH Document 73-1 Filed 12/21/16 USDC Colorado Page 1 of 3 Case 1:15-cv-02692-MEH Document 73-1 Filed 12/21/16 USDC Colorado Page 2 of 3 Case 1:15-cv-02692-MEH Document 73-1 Filed 12/21/16 USDC Colorado Page 3 of 3 Case 1:15-cv-02692-MEH Document 73-2 Filed 12/21/16 USDC Colorado Page 1 of 3 Case 1:15-cv-02692-MEH Document 73-2 Filed 12/21/16 USDC Colorado Page 2 of 3 Case 1:15-cv-02692-MEH Document 73-2 Filed 12/21/16 USDC Colorado Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-2692-MEH LUPITA LEWIS, Plaintiff, v. JAMES T. POWERS, individually; NATIONAL FEDERATION FOR THE BLIND, a public foundation; NATIONAL FEDERATION FOR THE BLIND, COLORADO, a Colorado public foundation in good standing; COLORADO CENTER FOR THE BLIND, a Colorado public foundation in good standing; CZ FAMCO HOLDINGS LLC d/b/a CHUBBY’S, a Colorado LLC in good standing; and CITY OF LITTLETON, COLORADO Defendants. ______________________________________________________________________________ ORDER RE: DEFENDANT NATIONAL FEDERATION OF THE BLIND, COLORADO’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ THIS MATTER, having come before the Court on Defendant National Federation of the Blind, Colorado’s Motion for Summary Judgment, and the Court being fully advised thereon: HEREBY ORDERS the motion is GRANTED; FURTHER ORDERS that all of Plaintiff’s claims against National Federation of The Blind, Colorado are dismissed with prejudice. Dated this ______ day of ______________________________________ Case 1:15-cv-02692-MEH Document 73-3 Filed 12/21/16 USDC Colorado Page 1 of 1