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Apodaca v. Willmore

Supreme Court of Kansas

April 14, 2017

Juan A. Apodaca, Appellant,
Mark Willmore, Matthew Willmore, and Oak River Insurance Company, Appellees.


         1. The firefighter's rule first enunciated by this court in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), is extended to law enforcement officers.

         2. On the facts of this case, none of the three exceptions to application of the firefighter's rule recognized in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), a rule now extended to law enforcement officers, applies.

         3. On the record in this case, the plaintiff is procedurally barred from pursuing adoption of a fourth, willful and wanton conduct exception to the firefighter's rule, now extended to law enforcement officers.

         Review of the judgment of the Court of Appeals in 51 Kan.App.2d 534, 349 P.3d 481 (2015). Appeal from Shawnee District Court; Larry D. Hendricks, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Roger D. Fincher, of Bryan, Lykins, Hejtmanek & Fincher, of Topeka, argued the cause and was on the brief for appellant.

          Joel W. Riggs, of Larson & Blumreich Chartered, of Topeka, argued the cause, and Craig C. Blumreich, of the same firm, was on the brief for appellee.


          Beier, J.

         In this appeal from summary judgment granted to the defendants in district court, we decide whether to extend a common-law tort doctrine known as the firefighter's rule to law enforcement officers.

         We hold that the firefighter's rule first enunciated by this court in Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985), should be extended to law enforcement officers. We therefore affirm the Court of Appeals decision and the judgment of the district court.

         Factual Background and District Court Proceedings

         The facts and district court litigation underlying this appeal are described completely and effectively in the Court of Appeals decision, and we incorporate that recitation:

"At about 3:30 a.m. on October 18, 2009, in Riley County, Matthew Willmore was driving his father's 1998 Ford F-150 pickup north on K-177, which is a four-lane highway separated by a grassy median. Less than a mile north of Interstate 70, Willmore fell asleep at the wheel and rolled the pickup across the median. The truck eventually came to a stop on its wheels, blocking the southbound lanes of the highway. Willmore- who was 18 years old at the time of the accident-had drunk several beers at a friend's house earlier that night.
"David McGillis, who was also driving north, witnessed the accident and stopped to assist Willmore. After Willmore exited the pickup truck, he walked to the median where he spoke with McGillis. Willmore then attempted to move the truck but found that it would not start. Although it was dark outside and there were no lights illuminating the highway, Willmore turned off the truck's headlights. He called his parents to inform them of the accident and then began picking up debris from the highway.
"In response to a 911 call from McGillis, a dispatcher for the Riley County Police Department (RCPD) advised officers Juan Apodaca and Jonathan Dulaney-who were patrolling together-about the traffic accident. The dispatcher told the officers that the location of the accident was north of Interstate 70 on K-177 and that the vehicle involved in the accident was in the southbound lanes of the highway. Officer Apodaca acknowledged to the dispatcher that the accident was north of Interstate 70. The dispatcher also informed the officers that nobody was injured in the accident.
"Officer Apodaca drove to the accident scene-with Officer Dulaney in the passenger seat-at a high rate of speed with his emergency lights and sirens activated. Officer Apodaca saw the headlights and flashers from McGillis' vehicle-that was parked on the center-edge of the northbound lanes-from over a mile away, and he believed it was the scene of the accident. Officer Apodaca did not see the disabled pickup in the southbound lanes and struck it while travelling 104 mph. The second accident occurred at 3:42 a.m.
"Around 6 a.m., an evidentiary breath test revealed that Willmore's breath alcohol content was .103. During an interview conducted by a RCPD investigator about 5 months after the accident, Officer Apodaca acknowledged that the dispatcher had told him that the accident was north of Interstate 70 and that the truck was blocking the southbound lanes. But the officer stated that for some reason he envisioned the accident scene being south of Interstate 70. Officer Apodaca did not recall the dispatcher telling him that no one was injured in the accident. Instead, Officer Apodaca stated that he was driving at a high rate of speed because he believed someone may have been injured.
"As a result of the accident, both Officer Apodaca and Officer Dulaney suffered serious injuries. They applied for and received workers' compensation benefits. On October 17, 2011, the officers filed a joint petition in Shawnee County District Court, alleging that Willmore's negligence caused them to suffer personal injuries and related damages. The officers also asserted a claim of negligent entrustment against Willmore's father. A few months later, Oak River Insurance Company-the liability carrier for the RCPD-intervened as a party to the lawsuit.
"On March 22, 2013, Officer Apodaca, Officer Dulaney, and Oak River Insurance Company filed a motion for partial summary judgment concerning the Willmores' claims of comparative fault. One week later, the Willmores also filed a motion for summary judgment. Among other things, the Willmores argued that the firefighter's rule barred all the officers' claims. Shortly thereafter, Officer Dulaney dismissed his claims against the Willmores.
"On March 13, 2014, the district court entered a memorandum decision and order denying the motion for partial summary judgment filed by Officer Apodaca and Oak River Insurance Company but granting summary judgment in favor of the Willmores. In its decision, the district court found that the '[firefighter's] rule should be and is extended to law enforcement officers.' Accordingly, it concluded that the firefighter's rule barred Officer Apodaca from recovering in this negligence action because he was acting within the scope of his duties as a law enforcement officer at the time of the accident.
"Officer Apodaca filed a motion for reconsideration and, for the first time, asserted that Willmore's actions in causing the initial accident were willful, wanton, reckless, or intentional. In an order entered on May 27, 2014, the district court denied Officer Apodaca's motion, concluding 'that the grounds for judgment under K.S.A. 60-259(f) are not presented' and that there 'has been no intervening change in the controlling law, no new evidence which was previously unavailable and there is no manifest injustice to correct.' Moreover, the district court found that the arguments presented in the motion were either 'an attempt to revisit issues already addressed or advance arguments that could have been raised in prior briefing.'" Apodaca v. Willmore, 51 Kan.App.2d 534, 535-37, 349 P.3d 481 (2015).

         The remaining plaintiff, Apodaca, appealed to the Court of Appeals, and Judge David E. Bruns wrote for a unanimous panel of the Court of Appeals, affirming the district court. We accepted this case on petition for review.


         We open with a recitation of the familiar standard of review for summary judgment decisions.

"When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules as the district court." Apodaca, 51 Kan.App.2d at 538 (citing Stanley Bank v. Parish, 298 Kan. 755, 759, 317 P.3d 750');">317 P.3d 750 [2014]).

         As the Court of Appeals acknowledged, summary judgments should be granted with caution in negligence cases. See Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). An exception to that general rule applies when the only question presented is one of law. See Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 (1992) ("In a negligence action, summary judgment is proper if the only questions presented are questions of law."); see also KNEA v. State, 305 Kan. 739, 748, 387 P.3d 795 (2017) (when reviewing pure question of law, "'no additional facts need to arise or be developed in the record'"). And the issue of whether the firefighter's rule should be extended to law enforcement officers is such a question. Questions of law are reviewable de novo on appeal. See Martin v. Naik, 297 Kan. 241, 245, 300 P.3d 625 (2013) (citing Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220-21, 262 P.3d 336');">262 P.3d 336 [2011]).

         Legal Context of the Firefighter's Rule

         The firefighter's rule prevents an injured firefighter from recovering when his or her injury was caused by the wrong that initially required his or her presence in an official capacity at the scene. It "prohibits firefighters from suing the person who was negligently responsible for causing the fire or other hazard for injuries they suffer in responding to and quelling that hazard, subject to several exceptions." Apodaca, 51 Kan.App.2d at 538. In order to determine whether the rule should be extended to law enforcement officers such as the plaintiff in this case, we must first examine the legal context of the rule.

         A party suing to recover for a tortfeasor's negligence must prove the existence of a duty, a breach of that duty, an injury, and proximate cause. D.W. v. Bliss, 279 Kan. 726, Syl. ¶ 1, 112 P.3d 232 (2005). Proximate cause is "that cause which '"in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act."'" Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). In determining whether an injury is "the natural and probable consequence of the wrongful act, " the Court of Appeals has stated that "'[a] defendant is not responsible for all possible consequences of his or her negligence, only those consequences which are probable according to ordinary and usual experience.''' Hale v. Brown, 38 Kan.App.2d 495, 496, 167 P.3d 362 (2007).

         Historically an injured "rescuer" has been able to recover damages from a person whose negligence created the need for the rescue. See Brock, Administrator v. Peabody Cooperative Equity Exchange, 186 Kan. 657, Syl. ¶ 1, 352 P.2d 37 (1960) (not contributory negligence for person to risk life or place in great danger in effort to save another); see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 32 (2010) ("if an actor's tortious conduct imperils another or the property of another, the scope of the actor's liability includes any harm to a person resulting from that person's efforts to aid or to protect the imperiled person or property"). This rescue doctrine treats a potential rescuer as among the class of persons to whom a tortfeasor owes a duty as a matter of law. The rescue and rescuer are considered foreseeable, and the initial negligent act is considered the proximate cause of any injury sustained by the rescuer during the course of the rescue.

         Many jurisdictions have adopted the firefighter's rule as an exception to the rescue doctrine. See, e.g., Baldonado v. El Paso Natural Gas Co., 143 N.M. 297, 301-02, 176 P.3d 286 (Ct. App. 2006) (firefighter's rule evolved as exception to rescue doctrine; rescuer who could otherwise recover cannot do so if performing duties as professional firefighter). In some jurisdictions, the rule is known as the "professional rescuer's doctrine."

         The origins of the firefighter's rule can be traced to Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892), overruled in part by Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960). In that case, the Illinois Supreme Court applied the general categories of premises liability and held that firefighters are mere licensees. 143 Ill. at 190. Because firefighters are licensees, an owner has no obligation "to provide against the dangers of accident." 143 Ill. at 190.

         It was not until 1985 that this court was called upon to address the firefighter's rule for the first time. In the 93 years since the rule's inception in 1892, the doctrinal basis for its adoption and continued vitality had shifted. Traditional premises liability categories had begun to fall out of favor. See Britt v. Allen County Community Jr. College, 230 Kan. 502, 505-07, 638 P.2d 914 (1982) (discussing trend of jurisdictions abolishing traditional common-law premises liability categorizations; declining to abolish doctrine in Kansas), overruled by Jones v. Hanson, 254 Kan. 499, Syl. ¶ 1, 867 P.2d 303 (1994) (abolishing traditional premises liability categories in Kansas). And assumption of risk, see Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240, 243 (Ky. App. 1984) (firefighter "must be deemed to have assumed the personal risks inherent in dealing with the emergency which necessitated his presence"); Krauth v. Geller, 31 N.J. 270, 273-74, 157 A.2d 129');">157 A.2d 129 (1960) (firefighter "cannot complain of negligence in the creation of the very occasion for his engagement"), had lost some of its persuasive force as increasing numbers of jurisdictions adopted comparative fault. Thus, when this court ultimately adopted the firefighter's rule in Calvert, 236 Kan. 570, it grounded its decision on public policy.

         Plaintiff Donald Calvert was among the firefighters to respond to an anhydrous ammonia leak at the Garvey Elevator complex in Seward. Once on the scene, Calvert attempted to rescue a man who had collapsed near the leak. Despite wearing a respirator, Calvert inhaled some of the fumes and suffered a heart attack as a result.

         Calvert filed suit against Chevron Chemical, the owner of a storage tank the anhydrous ammonia had been stored in, and Garvey Elevators, seeking damages for his injuries. The district judge determined that the firefighter's rule should bar recovery because Calvert was discharging his duties as a firefighter at the time of his injury.

         When this court addressed the rule on appeal, it began its analysis by reciting its typical formulation: "[A] fire fighter who enters upon the premises of another in the discharge of his duty may not maintain a cause of action against the individual for negligence in creating a risk which necessitated a fire fighter's presence and resulted in injury to the fire fighter." 236 Kan. at 572.

         The court noted that several different legal theories had been used to support the rule but that most jurisdictions had adopted some form of it. 236 Kan. at 572. The court surveyed four specific legal bases cited by others: premises liability, assumption of the risk, employment-based assumption of the risk, and public policy.

         Regarding premises liability, the court observed that some jurisdictions had categorized firefighters as a "licensee." 236 Kan. at 572-73 (citing Price v. Morgan, 436 So.2d 1116');">436 So.2d 1116 [Fla. Dist. App. 1983]; Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855');">279 N.W.2d 855 [1979]; Baxley v. Williams Construction Co., 98 Ga.App. 662, 106 S.E.2d 799');">106 S.E.2d 799 [1958]). In Kansas, a "licensee" was "one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, " and the only duty owed by an owner or occupant of land to a licensee was "to refrain from injuring the licensee willfully or wantonly." Calvert, 236 Kan. at 573.

         Other jurisdictions had rejected licensee status for firefighters and instead determined that they were "invitees." 236 Kan. at 573 (citing Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 328 N.E.2d 538');">328 N.E.2d 538 [1975]; Wash, et al. v. Madison Park Properties, Ltd., 102 N.J.Super. 134, 245 A.2d 512');">245 A.2d 512 [1968]). An "invitee" was "one who enters or remains on the premises for the benefit of the inviter, or for the mutual benefit and advantage of both the inviter and invitee." Calvert, 236 Kan. at 573. A property owner or occupant would owe an invitee a duty of "reasonable or ordinary care for the invitee's safety" and had the duty "to protect and warn an invitee of a danger that may be reasonably anticipated." Calvert, 236 Kan. at 573.

         Still other jurisdictions rejected both licensee and invitee classifications and instead held firefighters to be sui generis. 236 Kan. at 573 (citing Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 157 A.2d 129');">157 A.2d 129 [1960]; Beedenbender v. Midtown Properties, 4 A.D.2d 276, 164 N.Y.S.2d 276');">164 N.Y.S.2d 276 [1957]). "When classified as sui generis, one of that class is privileged to enter the land for a public purpose, irrespective of consent." Calvert, 236 Kan. at 573. The duty owed to such a person would be similar to that owed to an invitee. 236 Kan. at 573.

         The Calvert court then turned to assumption of the risk, acknowledging that a number of jurisdictions had relied on the doctrine in adopting the firefighter's rule. 236 Kan. at 573-74 (citing Baker v. Superior Court, 129 Cal.App.3d 710, 181 Cal.Rptr. 311');">181 Cal.Rptr. 311 [1982]; Krauth, 31 N.J. 270). "The Fireman's Rule is not based upon 'express' assumption of the risk, i.e., where parties contract with each other so that one accepts the risk of harm which is instant to the other's conduct, but rather upon 'implied' assumption of the risk." 236 Kan. at 573-74. Moreover, assumption of risk can be divided into "primary" and "secondary" assumption of risk. Primary assumption of risk "relieves an individual of a duty which he might otherwise owe another with respect to a particular risk." 236 Kan. at 574. It is an "an absolute bar to a fire fighter's recovery; it dictates that the occupier of the premises did not owe the individual fireman any duty of care." 236 Kan. at 574; see also Armstrong v. Mailand, 284 N.W.2d 343, 349-50 (Minn. 1979) (The firefighter's rule "'is not unique to landowner cases but is applicable to our entire system of justice[;] one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.'"). In contrast, secondary assumption of a risk "occurs when the individual voluntarily encounters a known, appreciated risk without an intended manifestation by that individual that he consents to relieve another of his duty." Calvert, 236 Kan. at 574. Because of the then-current state of the doctrine of assumption of the risk in Kansas, the Calvert court said that adopting it as the basis for the firefighter's rule would require use of the secondary form "where a master/servant relationship is involved." 236 Kan. at 574. "[A]n individual taxpayer, as occupant of the premises, [would be regarded as] the employer of the fire fighter employee." 236 Kan. at 574-75. Since Calvert, this court has abolished the doctrine of assumption of the risk in the master/servant setting. See Simmons v. Porter, 298 Kan. 299, Syl. ¶ 6, 312 P.3d 345 (2013) (rationale for retaining assumption of the risk doctrine no longer viable in Kansas, given statutory comparative fault rules).

         The Calvert court next considered and rejected employment-based assumption of the risk as a basis for adoption of the firefighter's rule. Some jurisdictions had "determined that a fire fighter is a public safety officer, and that a public safety officer, by accepting salary and fringe benefits, assumes the risk normal to employment." 236 Kan. at 575 (citing Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609');">571 P.2d 609 [1977]). Under such a theory, firefighters are paid for the work they perform, and when injury occurs, compensation is provided. That compensation might be medical and disability benefits under workers compensation acts or, in some instances, special benefits provided under public employee retirement systems. Calvert, 236 Kan. at 575. For example, the court noted that the Kansas Legislature had created a Firefighter's Relief Fund to provide monetary relief for firefighters injured or disabled on the job. 236 Kan. at 575.

         Finally, the Calvert court cited and followed jurisdictions that had adopted the firefighter's rule on public policy grounds.

"[A] fire fighter cannot recover for injuries caused by the very situation that initially required his presence in an official capacity and subjected him to harm. Public policy precludes recovery against an individual whose negligence created the very need for the presence of the fire fighter at the scene in his professional capacity. See Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609');">571 P.2d 609 (1977); Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (App. 1977); Washington v. Atlantic Richfield Co., 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282 (1976); Romedy v. Johnston, 193 So.2d 487 (Fla. Dist. App. 1967); Clark v. Corby, 75 Wis.2d 292, 249 N.W.2d 567 (1977); Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964).
"Fire fighters enter on the premises to discharge their duties. Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole. In populous areas fire fighters are first concerned with keeping a fire confined and preventing it from spreading to other structures, and then with the preservation of the burning property.
"We now hold that it is a public policy of the State of Kansas that a fire fighter cannot recover for injuries caused by the very wrong that initially required his presence in an official capacity and subjected the fire fighter to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the fire fighter at the scene in his professional capacity." Calvert, 236 Kan. at 575-76.

         The Calvert court also outlined three exceptions to the rule. First, a firefighter is not barred "from recovery for negligence or intentional acts of misconduct by a third party." 236 Kan. at 576. Second, a firefighter is not barred from recovery if the individual responsible for the firefighter's presence engages in a subsequent act of negligence after the firefighter arrives at the scene. 236 Kan. at 576. Third, a firefighter is not barred from recovery "if an individual fails to warn of known, hidden dangers on his premises or for misrepresenting the nature of the hazard where such misconduct causes the injury to the fire fighter." 236 Kan. at 576. Ultimately, a firefighter "only assumes hazards which are known and can be reasonably anticipated at the site of the fire and are a part of fire fighting." 236 Kan. at 576.

         Applying the newly announced rule to the facts before it, the court held that Calvert was discharging his duties as a firefighter when he was injured, and therefore defendants could not be liable for Calvert's injury. 236 Kan. at 577. The court explicitly rejected Calvert's argument that the rule should not apply because ultra-hazardous material-anhydrous ammonia-was involved. According to the court, part of Calvert's job was to protect the public in situations where poisonous gas had escaped. 236 Kan. at 576-77.

         Since the Calvert decision, only one other Kansas Supreme Court case has addressed the firefighter's rule. In that case, McKernan v. General Motors Corp., 269 Kan. 131, 3 P.3d 1261 (2000), the court considered whether a firefighter who had been injured when a car hood strut exploded while he was attempting to extinguish a car fire could recover from the automobile manufacturer on a products liability theory. The court weighed the public policy bases for the firefighter's rule against the public policy bases for products liability claims and held that the manufacturer's negligence had not created the risk that had necessitated the firefighter's presence; thus allowing products liability claims would not frustrate the public policy underlying the firefighter's rule. Rather, it would "promote[] the public policy of fixing responsibility for defective products on the party who introduces the product to the [marketplace]." 269 Kan. at 140-41.

         One more aspect of this court's previous application of the Kansas firefighter's rule bears brief mention: Although this court has not addressed the applicability of the firefighter's rule to law enforcement officers, Calvert itself did not apply the rule to a traditional firefighting situation. Plaintiff Calvert, a licensed emergency medical technician, was responding to an anhydrous ammonia leak rather than a fire, and he was in charge of the ambulance dispatched to the scene.

         Status of the Firefighter's Rule in Other Jurisdictions

         More than 30 jurisdictions in the United States have adopted the firefighter's rule, overwhelmingly by court decision rather than by statute. See, e.g., Gregory v. Cott, 59 Cal.4th 996, 1012 n.11, 331 P.3d 179 (2014) (acknowledging statutory limitations to firefighter's rule under California law); Pottebaum v. Hinds, 347 N.W.2d 642, 643 (Iowa 1984) (adopting "narrow rule denying recovery to a firefighter and policeman whenever their injuries are caused by the very wrong that initially required the presence of an officer in his official capacity and subjected him to harm"); Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86, 89 (Mo. 1986) (declining to abrogate firefighter's rule in Missouri).

         The states adopting the rule include those such as Kansas and Alaska, which have relied on a public policy rationale. See Calvert, 236 Kan. at 576; Moody v. Delta Western, Inc., 38 P.3d 1139, 1139-40 (Alaska 2002). As the Court of Appeals noted in this case, the Supreme Court of Alaska focused on the nature of the relationship between firefighters and the public they are sworn to serve.

"[I]n Moody v. Delta Western, Inc., 38 P.3d 1139, 1142 (Alaska 2002), the [c]ourt found that the rule 'reflects sound public policy' because '[t]he public pays for emergency responses of public safety officials in the form of salaries and enhanced benefits. Requiring members of the public to pay for injuries incurred by officers in such responses asks an individual to pay again for services the community has collectively purchased.'" Apodaca, 51 Kan.App.2d at 539.

         States that have codified the firefighter's rule include California, Nevada, and New Hampshire. See Cal. Civil Code § 1714.9 (firefighters, among others, permitted to bring action for negligence in course of performing duty only under enumerated circumstances, such as for conduct occurring after firefighter arrives at scene); Nev. Rev. Stat. § 41.139 (same); N.H. Rev. Stat. Ann. § 507:8-H (2010) ("Firefighters, emergency medical technicians . . ., police officers, and other public safety officers shall have no cause of action for injuries incurred during the performance of duties incidental to and inherent in the officer's official engagement ...

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