                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-2168
ROBERT FOLEY and PATRICIA FOLEY,
                                          Plaintiffs-Appellants,
                                v.

CITY OF LAFAYETTE, INDIANA, and FRED TAYLOR,
                                          Defendants-Appellees.

                         ____________
            Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
                 No. 01 C 69—Allen Sharp, Judge.
                         ____________
    ARGUED OCTOBER 29, 2003—DECIDED MARCH 8, 2004
                    ____________



 Before FLAUM, Chief Judge, and EASTERBROOK and
KANNE, Circuit Judges.
  KANNE, Circuit Judge. Robert Foley alleges that the City
of Lafayette violated the Americans with Disabilities Act
(“ADA”) and the Rehabilitation Act of 1973 by failing to pro-
vide adequate egress from the city-owned train-station
platform. The district court, relying on 49 C.F.R. § 37.161,
concluded that the inoperable elevators and snow-covered
ramp that prevented Foley from an easy exit from the plat-
form were non-actionable isolated or temporary conditions
as a matter of law. Because we agree with the district
2                                                No. 03-2168

court’s conclusion, we affirm the grant of summary judg-
ment to the City of Lafayette.


                          I. History
   Robert Foley, a lifetime resident of West Virginia, has
suffered from significant pain in his legs and back since a
work-related injury in August of 2000. From the time of his
injury, he has relied on a wheelchair because of intense
pain caused by standing or walking. Robert’s health prob-
lems are compounded by his morbid obesity—he weighs
nearly four hundred pounds—and diabetes.
  In December of 2000, Robert decided to travel to Indiana
so that he could celebrate the holidays with his extended
family. Robert’s brother, Greg, hosting the proposed reunion
at his home in Battle Ground (a town near Lafayette), made
arrangements for Robert to travel from West Virginia to
Indiana by train. Greg chose this means of transportation
in part because the Lafayette train station is advertised by
Amtrak as fully accessible to persons in wheelchairs. Joined
by his teenage son, David, Robert left West Virginia on
December 17 with an estimated time of arrival in Lafayette
of 7:08 a.m. on Monday, December 18.
  The sole Lafayette train station is owned and operated by
the City of Lafayette. Amtrak, Greyhound, the city bus
system, and several other organizations utilize the station
as a depot and/or for office space. Fred Taylor was the only
City employee assigned to the station on a regular basis
during the time period in question. Taylor performed
maintenance and janitorial work. He worked from 6:00 a.m.
to 3:00 p.m., Monday through Friday. Bill O’Connor, an
employee of the Downtown Business Center,1 also worked


1
    The Downtown Business Center of Greater Lafayette, Inc., a
                                                (continued...)
No. 03-2168                                                 3

at the station. His duties mirrored those of Taylor, he often
followed orders given by Taylor, and he usually started
work at 2:30 p.m. and ended work around 11:30 p.m. Two
passenger trains stop at the Lafayette station each day of
the week; in December of 2000, the northbound train had a
scheduled arrival time of 7:08 a.m., and the southbound
train had a scheduled arrival time of 11:38 p.m.
  The train station is located at Riehle Plaza in downtown
Lafayette and is situated on the east side of the tracks.
Passenger trains arriving in Lafayette unload at a ground-
level platform on the west side of the tracks. The facility
has three levels.
  In order to reach the parking lot on the east side of the
tracks, passengers must go up to the third level, by way of
stairs or an elevator, to a short bridge that crosses above
the tracks. After crossing the short bridge, passengers can
take the east-side stairs or elevator to descend to the middle
or ground-floor levels of the station, where they can access
the parking lot.
  Alternatively, by taking either the stairs or a ramp up one
level from the west-side platform, passengers can reach a
pedestrian bridge and cross west over the Wabash River
into the adjacent community of West Lafayette. This
pedestrian bridge is large enough to be accessed by vehicles
for emergency purposes from the West Lafayette side of the
river.
  It is undisputed that significant snowfall, up to nine
inches, blanketed the Lafayette area over the weekend prior
to Robert’s arrival. It is also uncontested that it was
extremely cold and that the wind was particularly strong on



(...continued)
non-profit Indiana corporation, was one of the entities that
utilized office space at the station.
4                                                  No. 03-2168

the morning of December 18. In resolving all factual
disputes in favor of Robert, we assume that the bulk of the
snow fell early in the weekend, but there is no dispute that
blizzard-like conditions prevailed through Monday morning
due to a large amount of snow on the ground and strong
winds.
  At 6:00 a.m. on December 18, Greg Foley set out with his
brother-in-law, Mike Flagg, to pick up Robert. Although the
ten-mile trip from Battle Ground usually took about twenty
minutes, the harsh winter conditions led to an arrival forty-
five minutes later at 6:45 a.m. When Greg arrived at the
station, he discovered that neither of the elevators were
working. Concerned, Greg notified Fred Taylor. Taylor was
surprised and may have tried to fix the problem by switch-
ing a circuit breaker. At his deposition, Taylor recalled that
the elevators were broken the previous week and stated
that he had called his boss to report the problem.2 Taylor
notified Greg that the train had been delayed for two hours,
but provided no further assistance to the Foleys. Greg,
believing that Taylor would take care of the necessary
repairs, took his family to breakfast. Taylor, in fact, spent
most of the balance of his day shoveling snow, assisting
other patrons of the depot, and attending to routine duties.
  Greg returned to the station at approximately 9:00 a.m.,
and with Taylor present, he expressed concern about the
inoperable elevators to Jane Ness, an employee of the
Downtown Business Center. Whereupon Ness contacted the
Indianapolis branch of Montgomery Kone, a Moline, Illinois
company that was the contract provider of maintenance and


2
  Although Taylor’s testimony lacks clarity, it appears that he
discovered and reported the problem late the previous week,
either on Thursday or Friday. There is nothing in the record to
indicate what actions, if any, were taken by Taylor’s supervisor,
Ed Lehman, if Taylor indeed notified Lehman that the elevators
were out of service.
No. 03-2168                                                5

repair services for the elevators.
   Kone’s records show the phone call for service regarding
the train-station elevators was received at 9:13 a.m. At 9:31
a.m., Kone dispatched a Lafayette-area repairman to the
scene. He arrived at 10:00 a.m. In commencing the repairs,
it was discovered that the heating elements necessary to
maintain the proper temperature of the oil in the outdoor
hydraulic elevators were burned out. Because of the
extremely cold temperatures, the elevators were rendered
inoperable. Nothing further could be done that day, how-
ever, because parts were needed. The Kone repairman left
sometime before 11:30 a.m.
  In the meantime, Greg received misinformation from the
Amtrak hotline that led him to believe that the northbound
train would now not arrive until 12:30 p.m. He returned to
Battle Ground with his family. The train, in fact, arrived at
approximately 11:30 a.m.
  Robert and his son, David, were helped off the train by
Amtrak employees but were left alone in the cold weather
on the platform. Amtrak does not employ personnel at the
Lafayette station and the individuals who assisted the
Foleys returned to their posts on the northbound train.
David searched for Greg in vain. Robert and David consid-
ered the option of going up the ramp to the pedestrian
bridge. They decided that the snow, not yet removed from
the ramp, made maneuvering the wheelchair up the incline
too difficult and dangerous. Robert, clad in light clothing,
felt he could not endure the frigid temperatures. Robert de-
cided his best option was to slowly walk up the stairs. Bill
O’Connor (the Downtown Business Center employee), called
in early to help shovel snow, assisted Robert by walking
alongside and supporting some of Robert’s weight.
  Greg arrived around noon, after discovering at 11:30 a.m.
that the train was not as late as the faulty estimate had
6                                                No. 03-2168

indicated. After assessing the situation, Greg and Flagg
drove in Flagg’s truck to the West Lafayette side and drove
east on the plowed pedestrian bridge. By this point, Robert
had successfully reached the top of the first flight of stairs,
and everyone helped him to the truck.
  The next day, Tuesday, December 19, repairs continued
and one elevator was returned to service. Both elevators
were made fully operational by December 22.
  Robert made several trips to Lafayette’s Home Hospital
and visited other doctors in West Virginia. He complained
of increased pain in his legs due to alleged frostbite caused
by the cold air. Robert contends that the City of Lafayette
discriminated against him on the basis of his disability in
violation of Title II of the ADA and the Rehabilitation Act.
He alleges that the lack of equal egress on the morning of
December 18 constitutes a violation of these statutes. The
district court granted Lafayette’s motion for summary
judgment and sent the state law claims to the Indiana
courts.


                        II. Analysis
  We review de novo a grant of summary judgment. Ross v.
Town of Austin, 343 F.3d 915, 917 (7th Cir. 2003). Sum-
mary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there exists no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). We must construe the facts and draw all
reasonable inferences in the light most favorable to the
nonmoving party. Bombard v. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 562 (7th Cir. 1996).
  The ADA seeks to “provide a clear and comprehensive
national mandate for the elimination of discrimination
No. 03-2168                                                   7

against individuals with disabilities[.]” 42 U.S.C.
§ 12101(b)(1) (2003). In pursuit of this goal, Title II of the
ADA requires that “no qualified individual with a disability
shall, by reason of such disability, be excluded from partici-
pation in or be denied the benefits of the services . . . of a
public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132 (2003). For summary judgment
purposes, the district court found that Robert was protected
by the ADA as a “qualified individual” under 42 U.S.C. §
12131(2), and this finding was not challenged on appeal.
Furthermore, the City of Lafayette is clearly a “public
entity” under 42 U.S.C. § 12131(1). Thus, the issue before
us under the ADA is whether the district court was correct
in finding that the City, as a matter of law, did not unlaw-
fully discriminate, exclude, or deny services to Robert.
“[S]ince Rehabilitation Act claims are analyzed under the
same standards as those used for ADA claims,” Ozlowski v.
Henderson, 237 F.3d 837, 842 (7th Cir. 2001), we will
confine our analysis to the ADA.
  The Lafayette train station is, in the normal course of
operation, fully accessible to individuals with disabilities.
The dispute in this case is whether the City of Lafayette did
enough to prevent and/or remedy the elevator difficulties in
December of 2000. It is in this context that the district court
properly relied on a rule promulgated by the Department of
Transportation (“DOT”) that provides guidance on the
particular issue of access to mass transit facilities. This rule
states:
    (a) Public and private entities providing transportation
        services shall maintain in operative condition those
        features of facilities and vehicles that are required
        to make the vehicles and facilities readily accessible
        to and usable by individuals with disabilities. These
        features include, but are not limited to . . . eleva-
        tors.
8                                                 No. 03-2168

    (b) Accessibility features shall be repaired promptly if
        they are damaged or out of order. When an accessi-
        bility feature is out of order, the entity shall take
        reasonable steps to accommodate individuals with
        disabilities who would otherwise use the feature.
    (c) This section does not prohibit isolated or temporary
        interruptions in service or access due to . . . repairs.

49 C.F.R. § 37.161 (emphasis added). Thus, Lafayette has
three duties under this particular regulation: it must
maintain the elevators in operative condition, it must repair
the elevators promptly once an elevator malfunctions, and
it must take reasonable steps to accommodate an individual
who otherwise would have used the elevators when the
elevators are out of order. But the regulation does not
subject Lafayette to liability for isolated or temporary
interruptions in service due to repairs.
  The DOT provided further guidance regarding the reg-
ulations in the published commentary. On the issue of
maintenance and prompt repair, the DOT noted:
    The rule points out that temporary obstructions or
    isolated instances of mechanical failure would not be
    considered violations of the ADA or this rule. Repairs
    must be made “promptly.” The rule does not, and prob-
    ably could not, state a time limit for making particular
    repairs, given the variety of circumstances involved.
    However, repairing accessible features must be made a
    high priority.
Transportation for Individuals with Disabilities, 56 Fed.
Reg. 45,621 (Sept. 6, 1991) app. D, subpt. G, § 37.161 (em-
phasis added).
  The DOT’s interpretation of its own regulation makes
sense: the only way to apply 49 C.F.R. § 37.161 is to con-
sider the unique circumstances inherent in any particular
No. 03-2168                                                9

transportation service site. In other words, there are no
universal definitions in the regulations for what is required
to “maintain in operative condition” the accessibility
features, to repair “promptly” such features, or to take
“reasonable steps” to accommodate when the features are
not accessible. The extent of inaccessibility covered by
the terms “isolated or temporary” in 49 C.F.R. § 37.161
is likewise unclear and only determinable by considering
the unique circumstances of the case.
  Robert insists that Lafayette failed to maintain the ele-
vators in operative condition. Furthermore, he argues that
Lafayette did not repair the elevators promptly, and did not
take reasonable steps to accommodate him—by clearing the
ramp of snow, for instance. Lafayette argues that the
elevator repairs, necessitated by the cold weather, led to a
temporary or isolated interruption in service that should
not be punished under the ADA.
   Nothing in the record indicates frequent denial of access
to disabled persons or a policy that neglects elevator main-
tenance. Lafayette has a long-term service contract with
Kone, the elevator-repair company. The elevators have
indeed been serviced on numerous occasions during this
contractual relationship, but Robert does not attempt to
show that Kone was not providing the necessary mainte-
nance to limit extended outages of service or that any other
individual had suffered harm from an elevator outage. In
short, there was no evidence from which a reasonable
inference could be drawn that other disabled persons were
denied access because of frequent elevator breakdowns.
  When contacted on December 18, Kone immediately dis-
patched an employee to the station. The problem, caused in
part by the harsh weather conditions, could not be resolved
on that day because replacement parts were unavailable.
The next day, December 19, the situation was alleviated in
part when one elevator was placed back in service. By
10                                               No. 03-2168

Friday, December 22, elevator operations were returned to
normal. This appears, from the undisputed facts, to be a
weather-related breakdown of elevator service which, given
the conditions, was repaired promptly. Under 49 C.F.R. §
37.161, occasional elevator malfunctions, unaccompanied by
systemic problems of poor maintenance policy or frequent
denials of access, do not constitute violations.
  Moreover, Lafayette has provided a reasonable accommo-
dation for temporary elevator outages in the form of the
ramp. The ramp to the pedestrian bridge provides an alter-
native means of access and egress for an event such as
this—an elevator malfunction at the same time an individ-
ual with a disability is in need of elevator service.
  An issue of fact has been raised as to whether the ramp
was in fact passable at the time of Robert’s arrival. But
even assuming, as we must, that the ramp was impassable,
that too was a temporary condition. The snowfall covered
the sizeable exterior area of Riehle Plaza for which Taylor
was responsible for snow removal. That Taylor had four-
and-a-half hours notice that Robert was arriving but had
not yet cleared the ramp by the time Robert’s train arrived
does not vitiate the temporary nature of the snow obstruc-
tion of the alternative accommodation—and the ADA was
not violated.
  In the face of the failure of both primary and alternative
accommodations, O’Connor assisted Robert to his vehicle in
the manner that Robert was forced to pursue—walking up
the stairs. In such unusual circumstances—heavy snowfall,
inoperative elevators, and frigid temperatures combining to
create a difficult situation for a passenger at a station with
very limited train traffic and personnel— O’Connor’s
actions constituted a reasonable emergency accommodation.
  Although the undisputed facts show that Kone took five
business days to complete the repairs, Robert argues that
the elevators could have been fixed in time for Robert’s
No. 03-2168                                                      11

arrival had Taylor immediately contacted Kone on
December 14 when he discovered they were not working. He
also contends that Taylor could have cleared all of the snow
off the ramp by the time the train arrived had Taylor
properly allocated his time. His final assertion is that there
is a reasonable inference that Taylor should have facilitated
a less stressful escape from the platform— perhaps by open-
ing up the machinery room to provide a temporary buffer
against the wind while a quicker means of egress was
found. But it is apparent that Robert alleges, at worst,
individual, isolated instances of employee negligence and
not a systemic problem with the policies of the City of
Lafayette regarding the structure and operation of the train
station. If there was negligence here on the part of Taylor,
it did not constitute a violation of the ADA.3 Isolated acts of
negligence by a city employee do not come within the ambit
of discrimination against disabled persons proscribed by the
ADA. Taylor’s conduct was neither a willful nor systematic
effort on the part of Lafayette to deprive Robert the accom-
modation due him.




3
   A Colorado state court case illustrates this principle. See Pack
v. Ark. Valley Corr. Facility, 894 P.2d 34, 39 (Colo. Ct. App. 1995).
In Pack, the plaintiff slipped and fell in the handicapped area of
the parking lot while visiting a correctional facility. Id. at 35.
Along with a negligence claim, the plaintiff alleged that he was
disabled and the accumulation of snow and ice in the parking lot
violated the ADA by effectively denying him access to the public
facility. Id. at 38. Applying 28 C.F.R. § 35.133, a regulation with
language identical to that in 49 C.F.R. § 37.161(a) and (c), the
Colorado court concluded that an isolated instance of alleged
negligence by agents of the state—in this case, the failure of
prison employees to remove the snow from the parking lot—could
not violate the ADA, which was “intended instead to prevent con-
sistent and discriminatory denial of access.” Pack, 894 P.2d at 39.
12                                               No. 03-2168

                      III. Conclusion
  Neither the interruption of elevator service nor the alter-
native ramp’s snow-covered condition, under the circum-
stances of this case, constitutes a violation of the ADA or
the Rehabilitation Act of 1973. The district court’s grant of
summary judgment is AFFIRMED.




  FLAUM, Chief Judge, dissenting. This case presents
the challenging question of whether a violation of the
Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act occurred at the Lafayette, Indiana,
train station in December of 2000. The rule promulgated by
the Department of Transportation (“DOT”) governing access
to mass transit facilities compels that an inquiry be made
to determine whether the steps taken by the City of Lafay-
ette to accommodate disabled individuals in response to the
station’s elevator outage were reasonable. See 49 C.F.R. §
37.161. Considering the facts in this case, I conclude that
the answer should appropriately come from a jury and I
therefore must respectfully dissent.
  Under the majority’s interpretation, violations of 49
§ C.F.R. 37.161 will occur only in situations where frequent
or systemic problems in an entity’s operation of mass
transit facilities have been alleged. The rule itself states:
     a) Public and private entities providing transportation
        services shall maintain in operative condition those
        features of facilities and vehicles that are required
        to make the vehicles and facilities readily accessible
        to and usable by individuals with disabilities. These
No. 03-2168                                                  13

        features include, but are not limited to . . . eleva-
        tors.
    (b) Accessibility features shall be repaired promptly if
        they are damaged or out of order. When an accessi-
        bility feature is out of order, the entity shall take
        reasonable steps to accommodate individuals with
        disabilities who would otherwise use the feature.
    (c) This section does not prohibit isolated or temporary
        interruptions in service or access due to mainte-
        nance or repairs.
   49 C.F.R. § 37.161 (2004) (emphasis added). In my view,
sub-section (c) cannot be read in a manner that eliminates
the requirement under sub-section (b) that during tempo-
rary outages “reasonable steps” must be taken to accommo-
date individuals with disabilities. If sub-section (c) were to
provide blanket immunity for entities during temporary
service interruptions, sub-section (b)’s second sentence
would have no force. Clearly, the only types of interruptions
in service contemplated under this regulation are those that
are isolated or temporary. Consequently, it must be during
these periods that the “reasonable steps to accommodate”
duty applies—and thereby insulates an entity from liability
if it is satisfied. Read in conjunction, sub-sections (b) and (c)
dictate that while temporary interruptions in service are
envisioned, repairs must be made “promptly” and “reason-
able steps” must be taken to “accommodate individuals”
when such interruptions arise. I am unable to find in sub-
section (c), or in any other authority, support for a rule that
discharges or diminishes an entity’s “reasonable steps” duty
absent frequent denials of access to disabled persons or a
neglectful maintenance policy.
  I agree with the majority that the elevator’s inacces-
sibility in this case was an isolated and temporary in-
terruption. Robert Foley (“Foley”) does not attempt to show
14                                               No. 03-2168

that other disabled persons were denied access because of
frequent elevator breakdowns. Furthermore, the breakdown
at issue was temporary as the elevator was inoperable for
at most a total of eight days. While a speedier repair would
have been preferable, eight days is certainly not long
enough to be considered permanent.
  My disagreement with the majority arises over the rea-
sonableness of Lafayette’s response to the elevator outage.
The majority concludes as a matter of law that the bicycle
ramp to the pedestrian bridge and the assistance provided
by Bill O’Connor, a non-city employee, constituted reason-
able alternative accommodations. While not inherently
without basis, I believe that this is a determination that
should be addressed by a jury. Foley has put forth evidence
to show that (1) Fred Taylor knew about the elevator outage
for at least four days prior to Foley’s arrival at the Lafay-
ette station; (2) Taylor had nearly five hours advance notice
of Foley’s impending arrival; (3) Taylor shoveled portions of
the station and platform, but not the ramp; and (4) Taylor
knew that the ramp was snow-covered. Confronted with
these facts, a jury could appropriately find that reasonable
steps were not taken to accommodate Foley.
  The majority finds dispositive the fact that these alleged
inadequacies fall on the shoulders of a single employee,
Taylor. In the majority’s view, “[i]solated acts of negligence
by a city employee do not come within the ambit of discrimi-
nation against disabled persons proscribed by the ADA.”
Majority opinion at 11. However, Foley’s contentions reach
beyond Taylor’s failures to contact Kone or clear the bicycle
ramp and extend to allegations of Lafayette’s wrongdoing.
Foley alleges that Lafayette knew of the problem at the
station as soon as the heavy snowfall hit—the implication
being that additional personnel should have been sent to
the station to assist with the snow removal on the ramp.
Furthermore, since an individual employee’s actions might
No. 03-2168                                                     15

be relevant to the reasonableness of an entity’s response,
there is no reason such conduct should not be considered in
determining whether § 37.161(b) was violated.4 Indeed, it is
easy to envision a situation where an entity’s entire re-
sponse may consist of the actions of a sole individual.
  “[R]easonable steps to accommodate” is not a rigid, one-
size-fits-all mandate. Rather, the regulation is written
to allow for flexibility in an entity’s response to an interrup-
tion in service depending on the particular circumstances of
the situation. What constitutes “reasonable steps” may be
subject to change depending on the duration of the interrup-
tion, the cost of the proposed alternate accommodation, the
resources available to the entity, or even the current
weather conditions. Providing nothing beyond access to the
bicycle ramp may be entirely reasonable as an accommoda-
tion when the train station’s elevator malfunctions on a
mild day. However, when the outage occurs during blizzard-
like winter conditions, simply pointing wheelchair-bound
passengers in the direction of the snow-covered ramp may
well be insufficient.
  Underscoring the need for entities to make particularized
responses to problems as they arise, the DOT’s published
commentary regarding accommodating disabled individuals
during service interruptions notes:
    The rule . . . requires that accommodations be made to
    individuals with disabilities who would otherwise use


4
  I am unpersuaded that the Colorado case cited by the majority
provides useful guidance for the case at bar. See Pack v. Arkansas
Valley Correctional Facility, 894 P.2d 34, 39 (Colo. Ct. App. 1995).
The regulation at issue in Pack, 28 C.F.R. § 35.133, shares
language identical to 49 C.F.R. § 37.161(a) and (c). However, the
regulation in Pack has no counterpart to § 37.161(b)’s requirement
that “reasonable steps to accommodate” be taken during tempo-
rary disruptions in service.
16                                               No. 03-2168

     an inoperative accessibility feature. For example, when
     a rail system discovers that an elevator is out of order,
     blocking access to one of its stations, it could accommo-
     date users of the station by announcing the problem at
     other stations to alert passengers and offer accessible
     shuttle bus service around the temporarily inaccessible
     station. If a public address system were out of order,
     the entity could designate personnel to provide informa-
     tion to customers with visual impairments.
Transportation for Individuals with Disabilities, 56 Fed.
Reg. 45,621 (Sept. 6, 1991) app. D, subpt. G, § 37.161.
  The commentary examples do not represent systematic or
generalized accommodations, but rather responses to
particular service disruptions. Such an approach makes
sense as it serves Title II’s purpose of guaranteeing dis-
abled persons equal access to the benefits and services of
public entities. The disabled will be less likely to utilize
trains, buses, and other services if during accessibility-
feature outages they will be left out in the cold, literally.
Under 49 C.F.R. § 37.161(b) Lafayette was not required
to make Herculean efforts to accommodate Foley and other
disabled travelers, just reasonable ones. In my judgment,
whether the City of Lafayette satisfied this statutory duty
presents a jury question. Therefore, I respectfully dissent
from the majority’s decision.


A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit


                     USCA-02-C-0072—3-8-04
