As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. No evidence in the record suggests that the prospect of negligent [**12]  patrons being held liable chills participation in skiing and snowboarding. .” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 832 (Conn. 2004). ), Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. 3d 234, (10th Cir. ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. 2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2005) (citing Croom v. Pressley, 1994 WL 466013, at *5 (Del. 2d 1123, 1132-33 (La. The plaintiff and his friend did not report the injury but drove home. Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor. Ct. App. Additionally, “where no objection is made before the jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions. 4. See Gieseke ex rel. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release “clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle.” The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. Assumption of risk is a defense based on the notion that the plaintiff consented to the defendant's conduct, which annuls the plaintiff's theory of negligence. . Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from [*33] the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Question #4 asked whether defendant acted with gross negligence. [24], In examining the relationship of the parties, the court bears in mind that “the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.”[25], When analyzed within this framework, implied primary assumption of risk remains distinct from secondary assumption of risk. (37) First, he argued that the trial court erred in its jury instruction on the Royals' defense of primary implied assumption of risk. Super. If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. I suspect the facts in the two cases the court reviewed would have different conclusions if the lift tower or the tree had hit the skiers? .. FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED… BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE. [¶] The Court: So stipulated.” (Italics added. 2011); Simmons v. Porter, 298 Kan. 299, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So. He hit his head suffering injuries. ), The Court of Appeal reversed. [26] It is therefore no longer available as a complete defense. The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. [*9]  Neither did plaintiffs’ counsel in his rebuttal argument. However, for the sake of completeness, the Court finds that because Barth paid a fee to participate in the race, his relationship with Blue Diamond for the purposes of that event was that of a business invitee. He first learned that Forrester claimed the collision was with a towed toboggan rather than the snowmobile itself after Forrester’s deposition. . LEXIS 47 (Minn. Ct. The law of contributory negligence repeats much of what has been said in previous chapters about negligence. secondary assumption of risk. ), Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23]  of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. 3d 235, discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court then thanked and discharged the jury without objection from trial counsel. Rptr. Id. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.”, In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant “we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. //var anchor_id = jQuery(this).attr("href"); 1984), , 265 Va. 98, 574 S.E.2d 277, 280-82 (Va. 2003), , 182 W. Va. 276, 387 S.E.2d 511, 517-19 (W. Va. 1989), , 73 Wis. 2d 547, 243 N.W.2d 503, 505-06 (Wis. 1976). Rptr. . Because Barth’s primary express and implied assumption of risk bar his claims of negligence, the Court need not reach this issue. . Since the landmark case, Knight v.Jewett (1992) 3 Cal 4th, 296, it has been held in California that the primary assumption of risk doctrine applies to those whom participate in sports. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. 781.) It’s understood that when you go to a baseball game, there’s a risk that a ball may be hit into the stands. 2d 197 (Benedek).). Barth bases his argument on this Court’s finding in Devecchio v. Delaware Enduro Riders, Inc.[11] In Devecchio, this Court deemed a waiver of liability unenforceable due to lack of consideration when the form stated that riders agreed to inspect the course, but the defendants admitted that, under the race’s sanctioning body’s rules, the riders were not allowed to inspect the course before the race. Proximate Cause 1. “Primary assumption of risk is a complete bar to recovery. [3] Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 2018) 883 F.3d 1243, 1256-1257, did not “indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities.” (, is instructive. And if you signed a waiver listing all the ways you can get hurt and then hurt yourself in one of those ways, you will probably lose a lawsuit. The sole issue before the Supreme Court was “whether a release of liability relating to recreational activities generally is effective as to gross negligence.” (Id. Other than the obvious argument that the particular case is traditionally viewed as one of “secondary assumption,” plaintiff should look into whether there was an increased risk of harm. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Tuttle died the following morning. Also, is the injury you received one that logically arises from the dangerous activity? The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. (Cal. This is a personal injury case. ; see Allan, supra, 51 Cal.App.4th at p. The question in primary assumption of the risk is whether there was any duty at all owed to the injured person to protect that person from risks inherent in the activity. 776.) This is opposed to a secondary assumption of the risk, which is for an injury that was not caused by a known danger. The plaintiff in Cohen fell from a rented horse on a guided trail ride. '”(quoting Shorten v. City of White Plains, 637 N.Y.S.2d 791, 796 (N.Y.App.Div.1996)); Lafate v. New Castle Cty., 1999 WL 1241074, at *4 (Del. Also, assumption of risk does not absolve a defendant of liability for reckless conduct. 2014) (quoting Fell v. Zimath, 575 A.2d 267, 267-68 (Del. Assumption of risk is a defense based on the notion that the plaintiff consented to the defendant's conduct, which annuls the plaintiff's theory of negligence. The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win. Dictionary 1598 (2002). It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.” “Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. Risk Assumption —A risk contingency plan can be developed for the project that defines the actions taken, the resource plans, and the factor that triggers an action should a given risk occur. over and above [*2] those inherent in the sport of skiing.” The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.5. Normally, juries like judges are asked to assemble, to a limited extent, the facts upon which they base their decision. A different analysis applies when a skier [*16] signs a written release that expressly holds the ski operator harmless for its own negligence. }, 1000); HN6[] “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. More importantly, who has to pay for your medical bills if you get hurt? Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well. Enforcement of the Release Does not Violate California’s Public Policy. Super. Although a release is not required to use “the word ‘negligence‘ or any particular verbiage . Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association. (Ibid.) //console.log("id::"+anchor_id); [20] Storm, 898 A.2d at 883 (citations omitted). 27. He was to call back Wednesday. Some jurisdictions break down assumption of risk into two categories: (1) primary, and (2) secondary. [16] See Lafate v. New Castle Cty., 1999 WL 1241074 (Del. 2d 177.) If a skier is injured as a result of a risk inherent in the sport, [*18] the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. Hass, supra, 26 Cal.App.5th 11 is instructive. There remains a genuine issue of material fact as to the allegations of recklessness against this defendant. MacClellan completed an incident report based on the phone call. To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.”[9] Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. by Plaintiffs was directly [*5]  and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated”; (2) “Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury”; and (3) defendant “is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the, The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant “unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing” and (2) whether defendant was grossly negligent. Commentators also have noted that implied primary assumption of risk is distinct from secondary assumption of risk. Rptr. If you or your child has been harmed in such a situation, contact a personal injury lawyer in your state for a free consultation. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Comparative Fault, Doctrine of Primary Assumption of the Risk. Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. Barth cannot claim he was denied permission if he never asked for it. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. This case is another mountain-bike race case with the same defendant as an earlier case in Delaware. Rptr. Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Words: You cannot change a legal definition, New York Decision explains the doctrine of Primary Assumption of the Risk for cycling, In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night, Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision, Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit, Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR, Buy something online and you may not have any recourse if it breaks or you are hurt, Ohio Appellate decision upholds the use of a release for a minor for a commercial activity, Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation, Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death, Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming, Buy Now: Outdoor Recreation Risk Management, Insurance & Law, Tuttle v. Heavenly Valley, L.P., 2020 Cal. The BSA & Council were not liable because volunteer was not an agent. In contrast, secondary assumption of risk applies when the defendant owes a duty, but a plaintiff has knowingly encountered a risk of injury caused by the defendant’s breach. Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff. You consent that the law firm you are matched with or a call center may contact you by phone and/or text, even if you are on a Do Not Call Registry. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. HN1[] The doctrine of primary assumption of risk is part of our common law. The plaintiff argued the release was not valid because it lacked consideration, and the release does not release the defendant from liability for recklessness. Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing. Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. In New Hampshire you have no coverage. at 707-08. 4.) 29, 2020). not making any changes to the special verdict form. CONTRIBUTORY NEGLIGENCE The law of contributory negligence repeats much of what has been said in previous chapters about negligence. Example: Kendra and Mike are at a party. Implied Primary Assumption of Risk Does Not Bar a Claim of Recklessness. At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1,065,915.50, plus costs and [*11] interest. The case law therefore suggests that the doctrine of primary assumption of risk applies to certain sports-related activities, even in the absence of an express waiver form. Answering “NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. As in other states, the defense provided by primary assumption of the risk is based on the duty of the defendants not to increase the harm beyond what is inherent in the sport. at 588. He had this to say about the release: “What we’re talking about here, the liability of the resort does not fall under this release. . Secondary Assumption of the Risk A defendant doesn’t have as strong of a defense with a secondary assumption of risk. Storm also quoted the Restatement (Second) of Torts at length to explain assumption of risk generally. This fact distinguishes this case from Ketler v. PFPA, LLC, [31] upon which Blue Diamond relies. If a court or jury finds that you have made a primary assumption of the risk, you are usually prevented from winning your personal injury case. . Equine Activities (Horses, Donkeys, Mules) & Animals. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. The ski area employees testified that it was so buy, it would have been impossible to drive a snowmobile through the crowd on the slope in question. jQuery("html, body").animate({ jQuery("html, body").animate({ Is an Employer Liable for Covid infection? 2014) (quoting. He could not see what was below him. (Santa Barbara, supra, 41 Cal.4th at p. Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident. at 240 n.1. Because of these two cases, I think first I would require all participants in the race to ride or walk the course. Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport. . If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. assumption of risk the defence to a TORT claim that what happened to the plaintiff is what he ought reasonably to have expected. The case went to trial, and the plaintiff lost because the jury found he had assumed the risk of injuries. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 261 Minn. 481, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. They do have a duty not to increase the risk beyond those inherent in the sport. We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that [**11]  the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128. See id. It does not release gross negligence. In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. 750.) Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. This triggers the doctrine of express assumption of the risk. Prior History:  [*1] Appeal from a judgment and post judgment orders of the Superior Court of Orange County, Ct. No. It does not release what we’re talking about.”. 1967). Instead, we affirm the court [**13]  of appeals’ disposition—reversal and remand—on a different ground. So, did you assume the risk for your injury just by showing up? . . The doctrine of assumption of risk is an affirmative defense that may be available to some defendants in personal injury lawsuits. Sky Diving Release defeats claim by Naval Academy student, Colleges, Officials, and a Ski Area are all defendants in this case, Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter, In Nebraska a release can defeat claims for gross negligence for health club injury, In this mountain biking case, fighting each claim pays off, New Jersey upholds release for injury in faulty bike at fitness club, New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. ), As noted, the jury [*27] was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. Rptr. 3d 471, (2007) 155 Cal.App.4th 1281, 1291, 66 Cal. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action. 2d 657.). Click here to see if you qualify now. (finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of another skater which the defendant, by adequate supervision, could have prevented. To perform the trick, Anderson—riding his snowboard “regular”—went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”1 Halfway through the trick, Anderson’s back was fully facing downhill. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014). [17] Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 882 (Del. He was told there was no one with whom he could discuss the incident and to call back on Wednesday. On the other hand, secondary assumption of risk involves a defendant who still owes a duty of care to the plaintiff. at p. If the plaintiff nevertheless assumes a risk of injury anyway, it is known as “secondary assumption of the risk.” In such a case, the trier of fact (usually a jury) will have to decide to what extent each party is to blame for the plaintiff’s injury. . The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. at 708 (citation omitted) (internal quotation marks omitted). New Hampshire court upholds release and defines the steps under NH law to review a release. However, you might find it helpful to understand some terms. acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he come in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use …. But that does not mean you do not qualify. 3d 219, 223 P.3d 77, (2008) 160 Cal.App.4th 1083, 1091-1092, 74 Cal. In cases where the other party owes you a duty, comparative negligence may apply to allow you a partial recovery even if you accept some risk. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form. . They contend the responsibility to seek a JNOV or some other, remedy should have fallen to defendant, not plaintiffs. [Citation.] Plaintiffs timely appealed. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck). . The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. Jur. .” In paragraph 13, Tuttle agreed the release was “binding to the fullest extent permitted by law . . 431,12 to which they agreed, [*34]  misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence. at p. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross, the special verdict was “hopelessly contradictory” because the jury’s gross, (1993) 23 Cal.App.4th 748, 754, 29 Cal. New clients can easily set up a conference call. Plaintiffs also asserted there were errors in the special verdict form, they “excepted to” those errors, but then were penalized because “the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley.” Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of “aggravated” negligence. Secondary Assumption of the Risk. }); People who cause your injuries should pay for your losses after your injuries. That morning, Anderson went down part of a “more [**3]  difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. Plaintiff failed to show all 4 elements were present: i. And the questions on the verdict form go [] to gross negligence, and—this doesn’t have to do with the release, but the increase of unreasonable risk.” Defendant’s counsel remarked the “dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form.” Plaintiffs’ counsel concurred: “Right.” Counsel then agreed the stipulation would not be read to the jury. The court based on this analysis looked at whether a toboggan is an inherent risk of skiing and boarding and found it was. [¶] The answer ‘NO’ to either Question #3 or #4 exonerates defendant. First, Barth signed a waiver releasing them from liability. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports.”. Accordingly, Question No. Peterson v. Donahue, 733 N.W.2d 790 (Minn. App. In this case,  you have made a primary assumption of risk of injury. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 251 Minn. 440, 88 N.W.2d 94 (Minn. 1958), that HN3[] a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. Modified Comparative Negligence. Specifically, we will look at how the legal arguments work and when assumption of risk can bar (meaning prevent) your recovery of damages. [it] must inform the releasor that it applies to misconduct on the part of the releasee.” (Id. Save my name, email, and website in this browser for the next time I comment. . The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. Have found waiver of liability for negligence for a minor entry triggers a need for snowmobile maintenance reviewed defenses. View Notes - implied assumption of the Superior court ( 2007 ) 41 Cal.4th 747,,. 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