Reina Abolofia VS The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

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GUIDRY,J. A bicyclist appeals a summary judgment dismissing her suit for injuries she sustained when she rode into a concrete pole located in the middle of a sidewalk. Finding summary judgment was improperly granted, we reverse and remand this matter to the trial court for further proceedings. FACTS AND PROCEDURAL HISTORY On July 12, 2011, Reina Abolofia, a college student, filed a petition for damages against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU), alleging: On or about March 1, 2011, at approximately 10:00 p.m., [Ms. Abolofia] was riding her bicycle on LSU's campus south of the intersection of Nicholson Drive and Burbank Drive, in the Parish of East Baton Rouge, State of Louisiana .... Suddenly and without warning, [Ms. Abolofia] collided with a metal pole filled with concrete that was installed in the middle of the bicycle path. The metal pole was unpainted and unmarked, preventing [Ms. Abolofia] from seeing the unreasonably hazardous obstruction. As a consequence of the above-related collision, Ms. Abolofia alleged that she sustained injuries to her neck, back, hand, and other injuries to be established at trial. On February 29, 2012, Ms. Abolofia amended her petition for damages to add Southgate Towers, LLC and the insurers ofLSU and Southgate as defendants in her lawsuit. In adding Southgate as a defendant, Ms. Abolofia alleged that the "metal pole filled with concrete ... was installed by LSU and/or Southgate in the middle of the bicycle path." Southgate filed an answer denying liability for Ms. Abolofia's injuries and subsequently filed a motion for summary judgment seeking dismissal of Ms. Abolofia's claims against it, contending that (1) the pole Ms. Abolofia collided 2 with was not a "defect" in accordance with La. C.C. arts. 2317 and 2317.1; (2) it did not have custody or control of the pole for whi~h liability could be imposed under La. C.C. arts. 2317 and 2317 .1; and (3) it owed no duty to Ms. Abolofia under La. C.C. art. 2315 to protect her from the risk of colliding with the pole. Followin g a hearing on the motion, the trial court granted the motion and rendered summary judgment dismissing Ms. Abolofia' s claims against Southgate with prejudice in a judgment signed December 2, 2013. As its reasons for judgment , the trial court adopted Southgate 's Memorandum m Support of Summary Judgment, Supplemental Memorandum in Support of Summary Judgment, and Reply Memoran dum in Support of Summary Judgment and further stated that the obstacle Ms. Abolofia ('allegedly collided with was 'open and obvious,' such that liability for [Ms. Abolofia's] alieged injuries cannot attach to [Southgate] as a matter of law." It is from this judgment that Ms. Abolofia urges the present appeal. ASSIGNMENTS OF ERROR Ms. Abolofia presents nine assignments by which she essentially contends the trial court erred in: (1) finding that the pole constituted an open and obvious hazard for which Southgate could not be liable; (2) finding the pole was an open and obvious hazard at night; (3) finding there were no genuine issues of material fact that would preclude summary judgment; (4) finding there were no genuine issues of material fact as to whether Southgate had custody, control, and/or garde of the pole; (5) finding there ~ere no genuine issues of material fact as to whether Ms. Abolofia had violated city or university regulations by using her bicycle on the pathway; (6) finding there were no genuine issues of material fact as to whether Southgate had installed the pole; (7) finding there were no genuine issues of material fact as to whether Southgate had installed the portion of the sidewalk on which the pole was located; (8) finding there were no genuine issues of material 3 fact as to whether Ms. Abolofia had prior knowledge of the pole; and (9) finding there were no genuine issues of material fact as to whether a spotlight that was 4 located near the pole at issue and ' in disrepair" created an unreasonable risk of harm. APPLIC ABLE LAW A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So. 2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment , show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). An appellate court reviews a trial court's decision to grant a motion for summary judgment de nova, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. George S. May International Company v. Arrowpoint Capital Corporation, 11-1865, p. 4 (La. App. 1st Cir. 8110/12), 97 So. 3d 1167, 1170. The mover bears the burden of proving that he is entitled to summary judgment . La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. See La.·C.C.P. art. 966(C)(2). If the nonmoving party fails to produce contrary factual support sufficient to establish it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Whether a particular fact in dispute is "material " for summary judgment purposes is viewed in light of the substantive 4 law applicable to the case. IvIB Industries, LLC v. CNA Insurance Company, 110303, p. 15 (La. 10/25/11), 74 So. 3d 1173, 1183. DISCUSSION Claims for damages premised on injuries caused by a thing are typically asserted pursuant to La. C.C. art. 2317 and 2317 .1, which articles provide, respectively: Art. 2317. Acts of others and of things in custody We are responsible, not only for the damage occasioned by our own act, but for . . . the things which we have in our custody. This, however, is to be understood with the following modifications. Art. 2317.1. Damage caused by ruin, vice, or defect in things The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Insurance Company, 04-0319, p. 8 (La. App. 1st Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. Thus, in order to establish a claim of custodial liability pursuant to La. C.C. arts. 2317 and 231 7.1, a plaintiff has the burden of proving: 1) the property which caused the damage was in the "custody" of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Graupmann v. Nunamaker Family Limited. Partnership, 13-0580, p. 6 (La. App. 1st Cir. 12/16/13), 136 So. 3d 863, 867. In determining whether a condition is a defect or presents an unreasonable risk of harm, a risk-utility balancing test is used. Broussard v. State ex rel. Office 5 of State Buildings, 12-1238, pp. 9-10 (La. 4/5/13), 113 So. 3d 175, 183-84. The risk-utility balancing test considers four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. Broussard, 12.,-1238 at p. 10, 113 So. 3d at 184. As observed by the Louisiana Supreme Court in Broussard, a defendant generally does not have a duty to protect against an open and obvious hazard; however, in order . . . for a hazard to be considered open and obv~ous, the hazard should be one that is open and obvious to a~l, i.e., everyone who may potentially encounter it. Broussard, 12-1238 at p. 10, 113 So. 3d at 184. Of particular note, in Broussard, the court held that "a fact-finder could reasonably infer the defect, while apparent to [the plaintiff], was not open and obvious to all who encountered it." Broussard, 12-1238 at p. 19, 113 So. 3d at 190. Assignments of error numbers one, two and eight address Ms. Abolofia's knowledge of the pole, and as such, whether that knowledge mandates a finding that the pole was an open and obvious hazard such that the pole did not present an unreasonable risk of harm for which Southgate could be liable. \\t'hile we find no merit in Ms. Abolofia's assertion that a genuine issue of material fact exists as to whether she had prior knowledge of the pole, 1 we do find merit in her assertion that the trial court erred in finding, based on the evidence presented, that the pole was an open and obvious hazard, and as such, did not constitute an unreasonable risk of 1 The record discloses that there were two poles located on the sidewalk on which Ms. Abolafia traveled and that a portion of the sidewalk was iocated on property owned by LSU and a portion was located on property owned by Southgate. Likewise, one of the two poles was located on the LSU portion of the sidewalk and the other pole was located on the Southgate portion of the sidewalk. During her deposition, Ms. Abolafia was shown pictures of both poles, and asked "[d]id you notice the poles when you rode in the daylight?" Ms. Abolafia responded, "I saw both. I remembered only one." She then went on to explain that she remembered the pole with which she had not collided, but she did not remember the pole with which she did collide. When she was further pointedly asked, "[b]ut you had seen [the pole with which she had collided]," Ms. Abolafia responded "[i]t was broad daylight. Yes." 6 harm. At the hearing on the motion for summary judgmen t, the trial court expressly stated "open and obvious, she had ki.1owledge of it, it cannot be somethi ng that is dangerous or in effect she sav; iL lt's ·open and obvious." As the court held in Broussarsi, the plaimiff 's awareness of the condition is not determinative of whether a condition is open and obvious. Instead, the court explained: The open and obvious inquiry thus foquses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge. Simply put, we would undermine our comparative fault principles if we allowed the fact-finder to characterize a risk as open and obvious based solely on the plaintiff s ·awareness of that risk. The plaintif fs knowled ge or. awareness of the risk created by the defendant's conduct should not operate as a total bar to recovery in a case where the defendant would otherwise be liable to the plaintiff. Instead, comparative fault principles should appiy, and the plaintiff s "awaren ess of the dange~" is but one factor. to consider when assigning fault to all responsible parties under La. Civ. Code art. 2323. Broussard, 12-1238 at p. 18, 113 So. 3d at 188-89 (case citation omitted). Thus, the mere fact that Ms. Abolofi a was aware of the. pole is not sufficient to establish that the pole was an open and obvious hazard., Further, as argued by Ms. Abolofia and recogniz ed by this court in Falcon ex reL Falcon v. Louisian a Department of Transportation, 13-1404, p. 12 (La. App. 1st Cir. ·12/19/14), - So. 3d -, -, 2014 WL 7212607, at *6, an object that does not present an unreasonable risk of harm during the day may do so at night. Additionally, in its memora nda 1n support· of its motion for summary judgmen t, which the trial court adopted as· its reasons for granting Southga te's motion, Southgate pointed out '~the lack of others being injured" by the presence of the pole as evidence that the pole did not pose an unreasonable risk of harm. But again, as the court in Broussa rd pointed out, while. "the absence of prior reported injuries may be one of many factors for the trier-of-fact to consider, it is not an absolute bar to recovery." Broussard, 12-1238 at p. 16, 113 So. 3d at 187. The 7 court then observed that there have been numerous appellate decisions in which "it was found a condition presented "an unreasonable risk of harm even where the plaintif fs injury was the first reported at a certain place." Broussard, 12-1238 at p. 16, 113 So. 3d at 187. Moreover, there is evidence in the record to indicate that the pole did present a risk of harm. Frederick Fellner, the assistant director of landscape services for LSU, testified in his deposition that he instructed an employee to install a reflector and reflector tape on the pole once he saw it. When asked why he had instructed someone to install the reflector and reflective tape on the pole, Mr. Fellner responded, "I'm responsible for anything that I see that's unsafe on the campus, and I do remember being concerned when I saw that.". Likewise, John Hopper, a construction contraGtor who worked for Southgate, testified in his deposition that he would not have installed a pole in the sidewalk, even if the owner of Southgate asked him to, because of the liability of someone running into the pole'. Similarly, Emmett David, director of LSU Facility Services at the time of the accident, said the pole was an "obstruction." Considering the highly factual nature of a determination of whether a condition presents an unreasonable risk of harm,~ Broussard, 12-1238 at p. 13, 113 So. 3d at 185-86, and the trial court's error in finding that the existence of the pole in the sidewalk did not constitute a unreasonable risk of harm principally because the existence of the ·pole ·was op~ri and .. obvious, we firid merit in Ms. Abolofia's assignments of error numbers one,:two and eight. In assignments of error numbers four, six, and seven, Ms. Abolofia argues that the trial court erred in failing to find tha(a genuine issue of material fact exists as to whether Southgate had custody, control, and/or garde of the pole at issue or whether it installed the pole or the portion of the sidewalk in which the pole was located. As the plaintiff in this matter, Ms. Abolofia would bear the burden of 8· proving that Southgate had custody, control or garde of the pole. See Graupmann, 13-0580 at p. 6, 136 So. 3d at 867. Thus, S~mthgate, as the movant for summary judgm ent had only to demonstr:ate the absence of f~ctual support for this element of Ms. Abolof ia's claim . .See La. C.C.P. art. 966(~')(2). Southgate supp.orted its motion for sumrnary judgment by pr.esenting the affidavit of Mickey Robertson, a yrofo~sional .surveyor, who attested that the location of the pole with which Ms. Abolofia. collided was .on LSU property. Southgate also presented the affidavit of its owner and manager, Robert Day, wherein he attested that Southgate did not design, construct, install, alter, or maintain nor authorize the design, construction, installation, or maintenance of the pole installed in the LSU portion of the He further attested that s.id~walk. . Southgate never cleaned, altered, repaired, or marked. the pole, derived no benefit . . ' from the pole, nor exercised custody or control over the pole installed in the LSU . I . . portion of the sidewalk. Additionally, .Southgate submitted the deposition testimony of Mr. Day, Mr. Fellner, and \Varr~n "Joe" Kelley, associate vice chancellor of LSU at the time the accident occurred, as further evidence of the fact that the pole at issue was located in the ponion of the sidewalk owned and constructed by LSU. In opposition to Southgate's motion, Ms. Abolafia also presented the deposition testimony of Mr. Fellner, Mr. Day, and Mr. Kelly, and additionally, submitted the deposition testimony of J\tfr. David and Mr. Hopper. Both Mr. Day and Mr. Hopper testified regarding IV1r. Day's instructions to Mr. Hopper to remove the pole that had been installed in the Southgate portion of the sidewalk. And while Mr. Hopper denied personally installing the pole in the Southgate portion of the sidewalk, Mr. Day testified that the pole in the Southgate portion of the sidewalk was installed by V &H contractors.' Also, while Mr. Day alleged that . . the pole in the Southgate portion of the sidewalk was installed at the request of 9 LSU, which assertion Mr. Kelley denied, Mr. Day did admit instructing V &H to ed "matc h" the pole installed in the LSlJ por:tion o~the sidew alk when V &H install the pole. Mr. Day, representing Southgate, expr~ssly d.enied installing or authorizing the installation of the pole in the LSU portion of the sidewalk. :• . ' In contrast, the LSU witnesses who testified -- Mr. Fellner, Mr. David and pole Mr. Kelley -- did not deny that anyone associated with LSU had installed the know in the LSU portio n ~f the sidewalk; rather, .they all testified that. they did not . . . . . LSl] . portion . of the sidewalk. Most . who or when the pole was installed in the ·. . . . . . •, ,., LS.U notably, Mr. Fellne r te.st~fied that he did no~ re~.all in~talling a pole in the ed sidewalk, but ackno wledg ed that while .it is .not customar~ for poles to be install in the middle ofLSU sidewall;:s, '~it is done.". In her brief on appeal, Ms. Abolo fia argues. that "thyre is a genuine issue of pole material fact regard ing who maintained or had ga_rde of the area where the Kelley, was located." In suppo rt of this argument,. she cites testimony by Mr. lk, where in he testified that during LSU' s construetion of its portion of the sidewa because the sidew alk was initially poure d just short of LSU' s property line . He Southgate was worki ng on the subsurface draina.ge system for its development he did did not know how far short of the property line the original pour ended, but pour know it ended "just before the swale." He could not answer wheth er the LSU of the stoppe d before or after the woode n bollards; ·he just kri.ew it stopped short property line to allow South gate's drainage ·work. He went on to explain: So once that ·drainage.v\ orkwas.firiishe'd J·_ I don't remember exactly when the - - I don't remember if we poure d the rest of the concrete or we stopped and then {Southgate] ·poured the· concrete to meet us. I just don't recall. I know we stopped it. But the last dozen feet, I dori't know if we went back and repou red that or he had his contractor pour ·it after they got all the drainage work done. It could have happened either way. I wasn' t standing there when it happe ned so I don't know. 1 ed In his deposition, Mr. Fellne r unconditionally testified that his department install ed the portio n of the sidew alk that existed on LSU property..And Mr. Kelley testifi 10 . .• : ' . · ·' ! . that "if Fred Fellner said an LSU crew did it [poured the portion of the sidewalk located on LSU property], I would believe him." Additionally, Ms. Abolofia argued that "LSU representatives testified they normally only maintained the area up to the roped off area which does not include the area where the pole was located." In support of this argument, Ms. Abolofia cites to testimony by Mr; Fellner, in which he stated that LSU does not cross the line of wooden bollards, which were connected by rope, to do maintenance nor did LSU have any maintenance responsibility beyond the wooden bollards; however, he later qualified that statement by stating "unless outside of the bollards is LSU property." Mr. Fellner then acknowledged that LSU does maintain past the bollards, but "not a large patch of grass," and he admitted he did not know "exactly where the property line runs." As he explained, "[t]he bollards are pretty close to the swale line, if not in a swale line, a ditch line. What we normally do is mow everything on the inside, and then on the ou,tside, we'll string trim." (Emphasis added.) Pictures of the portion of the sidewalk where the accident occurred show the pole to be in line with the wooden bollards referred to above. More importantly, the pole is located on the concrete sidewalk and not in the grass where the wooden bollards were located. Thus, the testimony regarding· maintenance, in the grass and beyond the area of the wooden bollards is clearly insufficient to indicate that Southgate maintained the LSU portion of the sidewalk wherein the pole was located. Nevertheless, Mr. Day did admit that he instructed V&H Contractors to install a pole that was similar in· make and appearance as the pole with which Ms. Abolafia collided in the Southgate portion of the sidewalk. Circumstantial evidence may establish the ·existence of a genuine issue of material fact to defeat summary ju~gment; however, the response of the adverse party must set forth specific facts showing a genuine issue of fact exists. Garrison 11 4th Cir. 12/18/13), . v. Old 1\1an River Esplanade, L.L.C., 13-0869, p. 7 (La. App. . fact, or of a set of 133 So. 3d 699, 703. Circumstantial evidence is evidence of one may reasonably be facts, from which the existence of the fact to .b.e determined inferred. Cangelosi v. Our Lady of the Lake 654, 664-65 (La. 1989). R.~oflal Medical Center, 564 So. 2d If circumstantial evidence is relied upon, that evidence, thesis with a fair taken as a whole, must exclude every ot.her reasonable hypo negate all other amount of certainty. This does not mean, however, that it must 33 (La. 5/22/09), t6 possible causes. Rando v. An~o Insulations Inc'.,. 08-1163, ~· So. 3d 1065, 1090. Despite the legislative iµandate that summa~y factual inferences reasonably drawn from the judgments are now favored, evidenc~ must be construed in favor in the opponent's of the party opposing the motion, and all doubt must be resolved 2d 1049, 1050. If favor. Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So. presented on the reasonable men might differ as to the significance of evidence , 06-0322, p. 6 (La. motion, summary judg ment is improper. Rager v. Bourgeois 89 (La. 3/23/07), App. 1st Cir. 12/28/06), 951 So. 2d 330, 333, writ denied, 07-01 prevail on the merits 951 So. 2d 1105. Moreover, the likelihood that a party will Rager, 06-0322 at does not constitute a basis for rendition of summary judgment. Schools., 09-511, p. 5, 951 So" 2d at 333; see also Dibartolo v . S1age One:-The Hair d, 09-2630 (La. p. 5 (La. App. 3d Cir. 11/4/09), 23 So. 3d 1038, 1041, writ denie that even ifthe trial 2/12/10), 27 So. 3d 849 (wherein the appellate court observed with the plain tiffs cour t's "prognostication" that it could not see a jury running trial is ~rrelevant to theory of her case was accurate, the ~'likelihood of success at the question of the propriety of summary judgment."). of Southgate Thus, because Ms. Abolofia offers the circumstantial evidence sidewalk that was admitting that it installed a similar pole in the portion of the y and Mr. Fellner located on its property and the uncertain testimony of Mr. Kelle 12 as to whether LSU actually poured the portion of the sidewalk that included the pole, it is evidence regarding specific facts, the genuine issue of which precludes summary judgment. See Garrison, 13-0869 at p. 7, 133 So. 3d at 703. Hence, we find merit in Ms. Abolofia's assignments of error numbers three, four, 2 six and seven. Ms. Abolofia's fifth assignment. of error addresses the trial court's implicit . . finding that she violated LSU regulations and/or ordinances of the City of Baton Rouge/Parish of East Baton Rouge by ridin~ ·he~: bicycle on the sidewalk. Mr. Fellner, Mr. Kelley, and Mr. David alLacknowledged that the sidewalk at issue was . . used by bicyclists as well as pedestrians. When asked to explain his testimony that the sidewalk at issue was designated for bicycles and pedestrians and why the sidewalk differed from other sidewalks on campus where bicycle use was prohibited, Mr. Kelley explained: The fact that this pathway is 7, 800 yards away from a high population density, we didn't have students walking back and forth between classrooms and classroom building~~ this was a route into and away from the campus and not within the campus. The routes within the campus between buildings~ those walkways were bicycle prohibited. You could only ride a bicycle on the street and not on the walkway. And that's if you get a copy of the Parking and Traffic Regulations, it says. in there very clearly~ bicycles are to be ridden on the street in the main part of the campus. When you get beyond the building area, the pathways that go up Dalrymple Drive, that go around the lake, that go up Highland Road, that go down Skip Berman Driv·e, and ·Gourrier Lane, those were all for bikes and pedestrians. 2 We observe that in its brief on appeal and in its memoranda in support of its motion for summary judgment, Southgate asserts that Ms. Abolofia would also be unable to establish that it knew of the defect or that it could have prevented the accident by the exercise of reasonable care. Our de novo review of the record before us; however, reveals that to the extent that it. may be determined that the pole presented an unreasonable risk of harm, Mr. Day's testimony that he told V&H Contractors to "match" the pole located on the portion of the sidewalk on LSU's property is evidence that Southgate knew of the pole. And a conclusion that Southgate could have prevented the harm by simply not installing the pole would logically flow from a finding that it did, in fact, install the pole. · · · · · 13 He then acknowledged that bicyclists could be subject to a city ordinance, "[ o]nee they leave LSU property and leave other private properties and enter onto a public street." Notably, the location of the accident was on LSU property. Based on this evidence, we agree that it is questionable whether Ms. Abolofia was in violation of any campus regulation or city ordinance at the time of the accident. Moreover, the assertion that Ms. Abolofia's negligence per se would prohibit her recovery is clearly a legally wrong conclusion under our comparative fault system. 3 See La. C.C. art. 2323. Ms. Abolafia failed to brief her final assignment of error that a genuine issue of material fact remains as to whether the "spotlight in disrepair" created an unreasonable risk of harm. Based on her failure to brief that assignment of error, we deem the error to be abandoned in accordance with Uniform Rules, Courts of Appeal, Rule 2-12.4. See Shilling ex rel. Shilling v. State ex rel. Dept. of Transp. and Development, 05-0172, p. 4 n. l (La. App. 1st Cir. 12/22/05), 928 So. 2d 95, 99 n.l, writ denied, 06-0151 (La. 4/24/06), 926 So. 2d 541. CONCLUSION For the foregoing reasons, we reverse the summary judgment rendered in favor of Southgate Towers, LLC and remand this matter to the trial court for I.•. further proceedings. All costs of this appeal are assessed the appellee, Southgate Towers, LLC. REVERSED AND REMANDED. Such an assertion is found in Southgate's original memorandum in support of its motion for summary judgment, wherein it cites to a 193 7 state appellate court decision as authority for this assertion. 3 14

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