Decision explains the liability in New Hampshire of a land owner allowing kids to sled on their land

Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

Decision was a rare case were lawsuit was not brought until after the injured minorHistory of the Boy Scouts of America reached age 18

In this decision, the plaintiff was an 11-year-old Boy Scout a camping trip. During the camp out the trip went sledding on a hill at a local Boy Scout Council camp. The

 

camp was not owned by a council that was not the chartering council of the scout troop. While sledding, the boys built a jump. Around lunch time the adult leaders left to go prepare lunch leaving the scouts unattended.

The court noted that this was in violation of the Guide to Safe Scouting, a set of procedures developed by the BSA to keep kids safer. (Safer, kids get hurt, it is part of growing up.)

The plaintiff sued the council that owned the camp, Boston Minuteman Council, the landowner and the National Council, BSA. The National Council grants charters to local groups, councils in a specific geographic area to offer the Scouting program to youth in their area. The local council, in this case Daniel Webster Council issued a charter to the group of parents who ran the troop the plaintiff was part of.

The court took note of the fact that neither volunteers scoutmasters nor the local council Daniel Webster Council.

The plaintiff was only 11 and the youngest scout on the camp out. He had watched other scouts go over the jump and fall. He had gone over the jump once when the scoutmaster was present and fell on his back but did not suffer any injuries. After the adult, volunteers left the area the plaintiff went over the jump again breaking his leg.

Summary of the case

The case has two major parts in the decision. The first is the decision over the land owner’s liability. The second is a motion in limine over the future or potential earnings and medical bills of the plaintiff. For the purpose of this article, the second part of the discussion will be ignored because it is not relevant.

The first point of interest in this decision is one sentence. The plaintiff did not sue until after he had turned age 18. Under the law a minor, someone under the age of 18 can sue by and through their parents in most states, any time after their injury, or they can wait until they turn age 18 and sue then. The parental lawsuit has a statute of limitation, in NH two years, because it is an adult suit on behalf of the minor child. The minor child when he reaches the age of majority, 18, then also has two years to sue after turning age 18.

The defendant land owner filed this motion for summary judgment based on the New Hampshire Recreational Use statute and fact the risk was an open and obvious danger.

The New Hampshire recreational use statute protects land owners from lawsuits brought by people who are using the land for free. The exception to the rule is if the injury to the plaintiff was caused intentionally by the land owner.

508:14  Landowner Liability Limited.

I. An owner, occupant, or lessee of land, including the state or any political subdivision, who without charge permits any person to use land for recreational purposes or as a spectator of recreational activity, shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

III. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.

The plaintiff argued the defendant land owner should be held liable because only scouts were allowed on the land; therefore, the land was not open to the public, part of the statute. Court held that the statute had latitude or a land owner would lose all control over his or her land. The court held that the landowner could not be held liable because it was protected by the New Hampshire recreational sue statute.

The second defense brought by the landowner was the “open and obvious” defense.

“a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s.”

The “open and obvious” defense is similar to an assumption of risk defense. If you can see or understand the dangerous situation on the land, then the landowner has no duty to warn you of the dangers.

The open and obvious defense requires that the dangerous condition be recognizable by the reasonable person. In the case of a minor the reasonable person test is changed to a reasonable person of the same age, intelligence and experience. A jump created by the other youth would have been obvious to the plaintiff even at age 11. Jumps are made to throw people into the air. Many courts have found that sledding and snowboarding over jumps is something a person of the plaintiff’s age, intelligence and experience should recognize so the court found that the defendant did not owe a duty to warn of the dangers of sledding or snowboarding over a jump.

So Now What?

This is an interesting and odd case. Not suing the local council or the scoutmasters is confusing. Waiting until the plaintiff turned 18 is even more confusing.

However, you can gain a few things from this case.

1.      If you are a volunteer unit leader understand the rules by which the parent organization expects you to operate and do not violate those rules.

2.    If you are a landowner who knows that people use your land for free without charging them for it, do two things.

a.     Make sure your state recreational use statute is broad enough to protect you from litigation.

b.    Make sure your liability policy provides you with coverage for allowing people to use your land.

Please, do NOT stop people from using your land, Please!

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Kids get hurt and some kids die

If you want your kids to play sports, enjoy the outdoors, and have fun, you have to accept the fact your kid will suffer an injury and some of those injuries are fatal.

If parents continue to sue volunteers and programs for their kids injuries, there are not going to be programs for kids. The facts of life say that the cost of providing a program for a kid by volunteers is going to reach a maximum, and those programs will end.

Most programs provide insurance for their volunteers. No matter how the coverage is provided, the volunteers own homeowner’s policy is the primary general liability policy. Eventually, when applying for homeowners insurance, there may be a question about volunteer activities. There is already a question about whether or not you have been sued in the past.

What about the time issues for a new volunteer. You want to be an assistant coach for your kids and the neighbor kids. You go to the first meeting and find out you have to take 20 hours of training before you can attend the first practice and several more hours after that. Is it worth the effort?

Think about the effects on our economy. No more free, after school, babysitting. Parents will have to trust their kids at home by themselves rather than sending them off to a volunteer.

Better, programs are going to require parents to be at all activities, including meetings and practices.

Seriously, would you take a kid backpacking knowing you be sued when you get home because he or she tripped over a stove and spilt hot pasta water on their foot. (Been there, took them to the hospital.)

So?

1.   Programs are going to have to step up to the bar and require parents to sign releases and/or acknowledgment of risk forms, which state:

a.   The parent is aware and understands all the risks of the sport or activity.

b.   The parent has watched all the required videos online.

c.   The parents agree to arbitration or mediation for all disputes and where applicable a limitation of damages.

2.   Volunteers are going to have to make the programs have an attorney prepare a release.

3.   Volunteers need to make sure they buy the maximum amount of liability coverage for their homeowner’s policy they can.

a.   You may consider an umbrella insurance policy to provide more coverage.

4.   You need to meet with parents and create minimums. If not enough parents are available for practices or games, the kids are sent home. If you say I need 10 parents to go with the 20 kids on this weekend camping trip and nine show up, you and the nine parents get a free weekend after you take all 10 kids home.

5.   If you are a volunteer or a parent, consider having all parents and volunteers take the Boy Scouts of America (BSA) Guide to Safe Scouting (GSS) program. More information on the BSA GSS can be found here.

a.   The BSA GSS safeguards kids but it will also protect you.

Don’t stick your neck out for the kids when their parents may chop them off.

What do you think? Leave a comment.

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Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90

Rita Berlin et al., Respondents,

vs.

Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.

95-05684

Supreme Court Of New York, Appellate Division, Second Department

229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision

July 8, 1996, Decided

Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.

Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.

{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.

Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.

Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.

Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.

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Adult volunteer responsibility ends when the minor is delivered back to his parents.

Thank heavens!

Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90

A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.

Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.

The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.

The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.

A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:

  • A duty
  • Breach of the duty
  • Injury
  • Damages proximately caused by the breach of duty.

The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.

The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.

So?

The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.

Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.

Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.

You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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Get Outdoors! Become a Habitat Steward.

Do you have an interest in spending time outdoors? Do you have a desire to help improve your community for
kids and wildlife? This unique opportunity may be right for you.

Become a Habitat Steward.

Participate in array of trainings led by local experts, from the how-to’s of wildlife friendly gardening
in your yard to coexisting with urban wildlife Learn hands-on how to develop and improve wildlife
habitat

Get to know Colorado’s native plants & native wildlife Improve your community by engaging in projects that improve habitat and create places for kids outdoors

THE TRAINING

Join a kick-off: October 3, 2-5 at the Butterfly Pavilion Personalize your learning, selecting trainings that interest you and fit your schedule Participate in habitat and wildlife garden improvement projects

TO LEARN MORE:  visit http://nwfhabitatstewards.blogspot.com or contact Julie Gustafson (303-441-5152).

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A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want.

A question posed on an Ask the Expert page has a very simple answer a very simple question.

The question asked was; must we allow adults into closed youth meetings? The simple answer is yes. There are no other answers available, no other answers to be considered, there is no other answer.

There may be other issues from various perspectives. However, we are talking about parental rights and minors.

You cannot keep a parent out of a meeting where their child is.

You can try to explain the issues; you can have the children discuss the issues with the parents. You can try anything but there is nothing else you can do other than talk and educate.

Look at this position from that of a parent. An adult is trying to tell me that I cannot go in that room where my child is. In my mind, the only real issue is will the parent slow down when they knock over the adult standing in their way.

The parent will have a lot of questions. What is going on behind that door? What is the adult trying to hide? What type of organization is my child in?

The question occurs when adults are attempting to give youth the freedom to make their own decisions and/or plan their own future. Adults intimidate and have a very difficult time staying out of the way. However, keeping adults from the room only creates additional barriers between the youth and adults. They believe that the only way they can accomplish anything is to bar adults.

The issue is not how to train the youth. The issue is how to educate and/or train the adults.

Parents need to be told both their child and by the adult volunteers what the purpose of the meeting or other function is and why they are requesting limited adult interaction. The meeting has to be done in a way that parents feel secure for their children. Finally, the meeting must be done so to protect the youth themselves and that youth protection guidelines are violated.

See Ask the Expert: Is it a violation of BSA policy to have “closed” meetings?

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

Twitter: RecreationLaw

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Always Identify Everyone on a Trip

Always Identify Everyone on a Trip

Not their names, but their position to you so you know how they are going to sue you.

We do not look at volunteers as potential litigants. They are there to help because they want to. Yet they sue. If they are an employee pay them, if they are a client have them pay, and if they are neither always have them sign a release.

This happens a dozen times a year. You have someone on your trip who is not really an employee, maybe be a volunteer, a chaperone, or a friend of an employee. If they are not being paid, they must sign a release, even if you do not pay them.

In this case, a schoolteacher was a volunteer chaperone on a ski trip. The ski trip was being run by the school district. The plaintiff/volunteer fell and injured her shoulder. She then filed a worker’s compensation claim and won because she was acting in the capacity of a teacher at the time of her injury.

The amount of the award was not reported. However, her medical bills will be paid, and she will receive 60% of her pay while she was off work because of the injury.

For other blog posts on similar topics see: You’ve got to be kidding: Chaperone liable for the death of a girl on a trip

To see this article go to City found liable for ski injury Peabody High teacher fell while supervising a school trip in 2004.


You’ve got to be kidding: Chaperone liable for the death of girl on a trip

Every school takes trips and every school trip needs parents. If nothing else it is cruel and unusual punishment to require teachers to spend 24 hours a day with some kids. Most of the time the volunteer parents are called chaperones. These chaperones are volunteering their time to keep track of the students, to keep alcohol away from the students and if trip has students of both sexes around, away from each other.

An arbitrator in a case has found a chaperone liable for the death of a student on a cheerleading trip in the amount of $700,000. See $700,000 verdict gives chaperones pause

The defendant in this case traveled with another chaperone and two cheerleaders to Hawaii. Within hours of arriving the deceased was seen drinking. The deceased was found the next day on hotel grounds. The deceased was 18.

What can one adult do to tell another adult not to do? What was the chaperone supposed to do, call the police? You can tell an adult to do or not do something, but that is about it.

Not much else is said about the deceased or how she died. There is nothing in the article stating the exact legal reasoning or claim the plaintiff argued that lead to the award. Nor are any discussions about defenses such volunteer immunity or a release.

What is going to occur is less people are going to want to volunteer to be chaperones.

There are a few things you can do to protect yourself in these situations.

Make sure the school or the school association has liability insurance to protect you. Make sure you have a lot of homeowner’s insurance; normally your homeowner’s insurance is going to be the primary insurance company, or the one out front. Try and get an agreement with the parents stating what you can and cannot do and what you are willing to try. Have the parent’s sign a release. Require parents to provide you with a phone number where they can be reached for the entire trip.

Insist on sufficient chaperones for the number and age of the students. Very young students and teenagers have the same propensity to “wonder away” and get in trouble.

Most importantly don’t put up with anything. Dependent upon the age of the student and what the parent says, deliver the student to the airport, put them on a plane and send them home if they are not obeying the rules. If the parent requires a chaperone to accompany the student home, the parent must agree in advance to pay for the cost of the student and chaperone coming home early.

This article raises a lot of legal questions. Why was the chaperone held liable for the actions of another adult? What duty was breached by the chaperone? We may never know, but school dances just took on a whole new set of worries. Spiking the punch bowl went from a prank to a negligent act.

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Litigation costs a lot of money

Many times attorneys talk about winning. I hear this more from novices to litigation. My first book about dealing with lawyers I cautioned the reader to make sure they understood the value of their pride. Once you start, your pride can become extremely costly.

Although winning may be important, surviving is critical. This may seem a little absurd, but the time and money spent getting to trial will bankrupt many small companies or individuals.

A recent article from the National Law Journal titled Cost of Discovery a Driving Force in Settling Cases, showed that the cost of settling is going up. The article talks about the shear cost of finding documents and information required or requested from the opposing side. With the electronic discovery rules this can mean months of time and hundreds of thousands of dollars in costs. Eighty-three percent of the lawyers surveyed said the cost of settling a case was a more important factor than winning.

If you are lucky enough to have these costs covered by insurance, the time can still bankrupt a small company. In major litigation, one person may have to be employed or assigned to deal with the issues of finding information, documents and files. This does not take into account depositions or time spent with your attorney preparing for depositions or trial. I used to tell my clients that for every hour their deposition was expected to last they needed to figure spending 2-3 hours with me preparing. For each hour of trial that would add an additional 3-4 hours for each hour of trial.

A two week trial and a 2 day deposition of a company president can take the president away from the office for almost 2 months.

If more than one officer or staff member is involved in the litigation this time can quickly multiply. How many small businesses can survive when three of its five employees lose a month to two months away from work, on top of vacations, sick time and holidays?

This plays into the plaintiff’s hands when they are looking at a personal injury suit. The injured plaintiff will have to produce medical records, income records and submit to a deposition. The income records will consist of copies of their tax returns. The medical records are kept now days so they can be easily delivered for anyone, insurance company, patient or opposing party in litigation. At most this could take a week of time to gather and prepare. A manufacture that is defending the trial may lose months of work in responding and preparing for litigation. The cost of winning in many cases exceeds the cost of settling. For Thirty thousand dollars the attorney and plaintiff have made a decent living and the manufacture has gotten rid of a problem. Very few if any trials can be defended for thirty thousand dollars. With the discovery rules I would find it rare for a small simple trial to cost less than $100,000 to defend.

Let’s turn this to a volunteer situation. You as a volunteer are being sued for your volunteer work leading a youth group, sitting on a board, or searching for a lost tourist. After you have used up your vacation time, you are faced with dealing with the litigation with no money coming in. Few if any employers are going to pay your to attend a trial to keep your home. Your homeowner’s insurance should pick up the tab for your defense, but there is no one to pay you to deal with the time, the stress and the copies you will have to produce.

It is for these reasons that you need to deal with problems before they grow into disasters. Any angry customer, parent or even member of an association may scream and bother you, but unsatisfied people simply go away now days. And attorneys are easy to find. See Serious Disconnect: Why people sue and
It’s Not Money

If you do serve on a board of directors or are an officer of a non-profit make sure the association or non-profit has liability insurance to cover its members, its officers and its board. Also make sure that the bylaws require the association or non-profit to reimburse you for your costs as an officer or board member in defending yourself in any action based on your volunteer work. If you are a volunteer make sure the organization you volunteer for has adequate (a lot) of liability insurance to cover the members for the volunteer work.

This insurance won’t cover your lost time, but at least there will be money there to force a win or a settlement so you don’t go bankrupt giving of your time.

Bet let’s hope that you only come as close to litigation as reading this article……


Youth and Adult Molesters

Parks and Rec Business Magazine has a great article on background checks for adult volunteers of youth sports. It is a well written and well researched article that talks about an issue that is a common theme in many of my articles. The actions that people are taking only lull them into believing they are doing the right thing. In reality they are wasting time and money. The article Background Checks: Do they really get the job done? points out that most background checks are not going to find molesters.

What the article points out is no matter what an organization does, bad people are going to get through. In order to prevent this from happening, Parents must be involved in the process and keep their eye on the program and their children. Parents must make sure their child is never in a position where they can become a target. For an excellent discussion about this and a program to train kids see the Boy Scout of America program Guide to Safe Scouting. Several other sports organizations have developed similar programs.

From the Parent’s perspective you just can’t expect someone else to babysit your kids. No program whether sports oriented or program oriented is designed to work without the involvement of parents. The Boy Scouts of America requires the parent to agree to become involved when they sign their child up to be a scout. Dropping you children off and picking them up several hours later is a recipe for disaster both for you and your child.

For adult volunteers, be very wary of any parent who simply drops their kids off at your program. If you don’t know the parent, you will if something goes wrong and you won’t want too. The parents who sue are the ones who have no involvement in the program.

While investigating Boy Scout lawsuits I discovered one recurring theme. I boiled that analysis down to one simple question to determine whether or not a parent would sue for an injury to their child. The question? What is the name of the adult leader? If the parent answered Mr. Jones or Mr. Smith there was going to be a lawsuit. If the parents answered Bob or Jim then there was probably not going to be a lawsuit.

The difference was not the answer but how well the parents knew the person who was taking care of their kid and more importantly how well the parents were involved in the program. A parent who was involved in the program did not sue. Those parents knew how the program worked, invested their time in the program and were involved. Those parents knew the adult volunteer as a friend, as someone who invested their time and as such knew them by their first name.

Parents who were not involved did not understand the program, the work, the commitment the time it took adult volunteers to keep their child active and involved. Those parents were recognized more by their cars taillights because the only thing they saw was the parent driving away after dropping off the child.

Parents who are not involved or who do not understand the program are also the ones who will sue. They have no understanding of what the program is trying to accomplish or their understanding is superficial. They see a sports program as purely their child playing ball. They see the BSA or GSA as purely their child going camping. They have no concept of the time the volunteer invests. They do not understand the goals of the program and how those goals are achieved by the activity and not vice versa.

These parent’s kids are also the most likely to be molested because their parents are not around. A molester is looking for the kid that they can find alone. They stand out because they are out standing waiting to be picked up rather than being walked to their car by their parents.

Those programs can also be spotted by parents. Just as the victims are identified as being the ones left alone by parents, the problem adult volunteers are also alone. They seem to be the total and complete volunteer. They drive away or discourage help from other volunteers. They do not want help because it interferes with their ultimate goals.

Both types of people, children with no parental involvement and adults with no other parental involvement are possible problems.

 

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