Dobie v. New Haven

D
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                  WILLIAM DOBIE v. CITY OF
                     NEW HAVEN ET AL.
                         (AC 42877)
                       Elgo, Cradle and Alexander, Js.

                                    Syllabus

The plaintiff sought to recover damages for personal injuries that he sus-
   tained when his vehicle struck an open manhole while he was traveling
   on a roadway maintained by the defendant city. The plaintiff alleged
   that his injuries were the result of the city’s negligence, as one of its
   snowplows had knocked off the manhole cover and its operator failed
   to stop and secure the roadway. The city filed a motion to dismiss the
   complaint, arguing that the facts alleged stated a claim of injury arising
   out of a highway defect for which the defective highway statute (§ 13a-
   149) provided the exclusive remedy and that the court lacked subject
   matter jurisdiction because the plaintiff failed to give notice of his
   injuries as required by the statute. The court sustained the plaintiff’s
   objection to the motion, noting that the complaint alleged that the
   plaintiff’s injuries were caused by the negligence of the snowplow driver
   rather than by a defect in the road. The matter proceeded to trial and
   a jury returned a verdict in favor of the plaintiff. The city filed a posttrial
   motion to dismiss, renewing its claim that the court lacked subject
   matter jurisdiction due to the plaintiff’s failure to provide the requisite
   notice pursuant to § 13a-149. The court denied the motion, again stating
   that the plaintiff was asserting a negligence claim rather than a defective
   highway claim, and rendered judgment in favor the plaintiff, from which
   the city appealed to this court. Held that the trial court improperly
   denied the city’s posttrial motion to dismiss the plaintiff’s action for lack
   of subject matter jurisdiction because § 13a-149 provided the plaintiff’s
   exclusive remedy against the city and the plaintiff failed to comply with
   its notice requirements: the plaintiff’s injuries were caused by an open
   manhole, which constituted a highway defect within the meaning of
   § 13a-149 because it was an object in the traveled path that obstructed
   or hindered the use of the road for the purpose of traveling, and the
   city conceded that it was responsible for maintaining the road on which
   the manhole was located; moreover, although the plaintiff did not plead
   § 13a-149 as a means for recovery, his sole remedy was under the statute
   because the evidence invoked it, and the cause of the defect did not
   alter this analysis because the city’s liability was based on the existence
   of and its failure to remedy the defect; furthermore, the plaintiff failed
   to provide notice to the city within ninety days of the accident, which was
   a condition precedent to an action under § 13a-149, thereby depriving
   the court of subject matter jurisdiction.
       Argued November 16, 2020—officially released May 11, 2021

                              Procedural History

   Action to recover damages for personal injuries sus-
tained as a result of the named defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of New Haven and tried
to the jury before Ozalis, J.; verdict for the plaintiff;
thereafter, the court denied the named defendant’s
motions to set aside the verdict and to dismiss, and
rendered judgment in accordance with the verdict, from
which the named defendant appealed to this court.
Reversed; judgment directed.
  Thomas R. Gerarde, with whom, on the brief, was
Beatrice S. Jordan, for the appellant (named defen-
dant).
  Brendan K. Nelligan, with whom were Charles
Riether and Leann Riether, for the appellee (plaintiff).
                          Opinion

   ELGO, J. The defendant city of New Haven1 appeals
from the judgment of the trial court, rendered following
a jury trial, in favor of the plaintiff, William Dobie. On
appeal, the defendant contends that the court improp-
erly denied its posttrial motion to dismiss, which was
predicated on the plaintiff’s alleged failure to comply
with the requirements of General Statutes § 13a-149,
commonly known as the defective highway statute.2
See Ferreira v. Pringle, 255 Conn. 330, 331, 766 A.2d
400 (2001). We agree and, accordingly, reverse the judg-
ment of the trial court.
   The facts relevant to this appeal are largely undis-
puted. On the morning of January 21, 2011, the plaintiff
was traveling to his workplace on a route he had taken
for years. Snow had fallen the night before and there
were patches of snow on the roadways. As he operated
his motor vehicle on Canner Street, a municipal road-
way in New Haven, the plaintiff followed a snowplow
operated by the defendant for approximately three
blocks.3 The blade of the plow was engaged and sparks
flew as it cleared the roadway.
   The snowplow stopped at the intersection of Canner
Street and Livingston Street, then proceeded through
the intersection. The plaintiff’s vehicle, which was
approximately two to three car lengths behind, followed
the snowplow through that intersection until the plain-
tiff heard a loud bang. The plaintiff continued through
the intersection. Moments later, the plaintiff’s vehicle
struck an open manhole in the road, rendering it inoper-
able.4 When the vehicle came to rest approximately ten
feet away, the plaintiff observed a manhole cover in
the roadway between the manhole and his vehicle.
  At trial, the plaintiff testified that he did not observe
the open manhole prior to colliding with it. He further
testified that he did not witness the snowplow knock
the cover off the manhole. There also was undisputed
evidence that an orange cone was located on the side of
Canner Street in the vicinity of the manhole in question,
which the plaintiff had observed in that location for
weeks.
   The plaintiff thereafter commenced this civil action.
In his original complaint, the plaintiff alleged one count
of negligence on the part of the defendant’s snowplow
operator. In response, the defendant moved to strike
that count, arguing in relevant part that it failed to state
a claim upon which relief may be granted ‘‘because it
fails to invoke a statute that abrogates governmental
immunity.’’ The court granted the defendant’s motion
and the plaintiff then filed the operative complaint, his
first amended complaint. That complaint contained one
count against the defendant sounding in negligence and
brought pursuant to General Statutes § 52-557n (a). The
defendant subsequently filed a motion to dismiss count
one of the operative complaint for lack of subject matter
jurisdiction, stating: ‘‘Count one of the complaint alleges
facts that state a claim of injury arising out of a highway
defect, for which . . . § 13a-149 provides the exclusive
remedy. The court lacks subject matter jurisdiction
because the plaintiff failed to give notice of his injuries
pursuant to § 13a-149.’’ By order dated December 21,
2015, the court sustained the plaintiff’s objection to the
motion to dismiss, concluding that ‘‘[t]he [operative]
complaint alleges that the plaintiff’s injuries were
caused by the negligence of the snowplow driver rather
than by a defect in the road.’’ The defendant then filed
an amended answer and special defenses in which it
alleged, inter alia, that the defendant was entitled to
governmental immunity pursuant to § 52-557n (a) (2)
(B).5
   The matter proceeded to trial before a jury, which
heard testimony from the plaintiff; Jeffrey Pescosolido,
Director of Public Works for the defendant; Dale Keep,
an expert in snowplow operation and safety; and Robert
Sorrentino, an oral and maxillofacial surgeon who
treated the plaintiff. After the plaintiff presented his
case-in-chief, the defendant filed a motion for a directed
verdict on the basis of governmental immunity, which
the court denied. The defendant then rested without
presenting any evidence and the jury subsequently
returned a verdict in favor of the plaintiff.
   On October 30, 2018, the defendant filed two posttrial
motions. In its motion to set aside the verdict, the defen-
dant argued that the plaintiff had failed to prove that
its snowplow driver was negligent or that the plaintiff
was an identifiable victim subject to imminent harm.
The court denied that motion in a memorandum of
decision dated April 12, 2019.
   In its posttrial motion to dismiss, the defendant
renewed its claim that the court lacked subject matter
jurisdiction due to the plaintiff’s failure to provide the
requisite notice pursuant to § 13a-149. By order dated
January 2, 2019, the court denied that motion, stating
in relevant part: ‘‘The evidence was clear and abundant
at trial, that the plaintiff was asserting a negligence
claim against [the defendant] and not a defective high-
way claim pursuant to § 13a-149. The jury interrogato-
ries given to the jury specifically related to the negli-
gence of the snowplow operator and whether such
injury caused the plaintiff’s injuries. As this court can
find no legal or factual basis upon which to grant the
defendant’s current motion to dismiss, said motion to
dismiss is denied.’’ The court, therefore, rendered judg-
ment in favor the plaintiff, and this appeal followed.
   On appeal, the defendant contends that the uncontro-
verted evidence adduced by the plaintiff at trial estab-
lished that the condition that caused his injuries was,
as a matter of law, a ‘‘highway defect’’ within the mean-
ing of § 13a-149. Because the plaintiff did not comply
with the notice requirements of that statute, the defen-
dant claims that the court improperly denied its post-
trial motion to dismiss for lack of subject matter juris-
diction.6
   Before considering the merits of the defendant’s
claim, some additional context is necessary. As a gen-
eral matter, ‘‘[a] town is not liable for highway defects
unless made so by statute.’’ Hornyak v. Fairfield, 135
Conn. 619, 621, 67 A.2d 562 (1949). That immunity ‘‘has
been legislatively abrogated by § 13a-149, which allows
a person to recover damages against a municipality
for injuries caused by a defective highway.’’ Martin v.
Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997);
see also Cuozzo v. Orange, 315 Conn. 606, 609 n.1, 109
A.3d 903 (2015) (Supreme Court ‘‘has long recognized
that § 13a-149 applies to publicly traversed roadways’’);
Ferreira v. Pringle, supra, 255 Conn. 356 (‘‘[t]he term
‘defect’ and the adjective ‘defective’ have been used in
statutes defining the right to recover damages for injur-
ies due to public roads or bridges in Connecticut
since 1672’’).
   Section 13a-149 provides in relevant part that ‘‘[a]ny
person injured in person or property by means of a
defective road or bridge may recover damages from the
party bound to keep it in repair. . . .’’ Our Supreme
Court has ‘‘long defined a highway defect as [a]ny object
in, upon, or near the traveled path, which would neces-
sarily obstruct or hinder one in the use of the road for
the purpose of traveling thereon, or which, from its
nature and position, would be likely to produce that
result . . . .’’ (Internal quotation marks omitted.)
Giannoni v. Commissioner of Transportation, 322
Conn. 344, 379, 141 A.3d 784 (2016) (Espinosa, J., dis-
senting); see also Kozlowski v. Commissioner of Trans-
portation, 274 Conn. 497, 502–503, 876 A.2d 1148 (2005);
Hewison v. New Haven, 34 Conn. 136, 142 (1867).
‘‘[W]hether a highway is defective may involve issues
of fact, but whether the facts alleged would, if true,
amount to a highway defect according to the statute is
a question of law’’; (internal quotation marks omitted)
McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459
(2005); over which we exercise plenary review.
   The precedent of our Supreme Court further instructs
that, ‘‘in an action against a municipality for damages
resulting from a highway defect, [§ 13a-149] is the plain-
tiff’s exclusive remedy.’’ Ferreira v. Pringle, supra, 255
Conn. 341. That statute requires, ‘‘[a]s a condition prece-
dent’’ to an action thereunder, the plaintiff to provide
‘‘a municipality with notice within ninety days of the
accident.’’7 Id., 354. The failure to comply with that
requirement deprives the Superior Court of jurisdiction
over a plaintiff’s action. Id.; see also Bagg v. Thompson,
114 Conn. App. 30, 41, 968 A.2d 468 (2009) (‘‘the failure
to provide the notice required by [§ 13a-149] deprives
the court of subject matter jurisdiction over the
action’’); Bellman v. West Hartford, 96 Conn. App. 387,
394, 900 A.2d 82 (2006) (‘‘[i]f § 13a-149 applies, the plain-
tiff must comply with the notice provisions set forth
therein in order for the trial court to have subject matter
jurisdiction’’).
   It is well established that a determination regarding
a trial court’s subject matter jurisdiction is a question
of law over which our review is plenary. See Khan v.
Hillyer, 306 Conn. 205, 209, 49 A.3d 996 (2012). ‘‘Subject
matter jurisdiction involves the authority of the court
to adjudicate the type of controversy presented by the
action before it. . . . [A] court lacks discretion to con-
sider the merits of a case over which it is without
jurisdiction . . . .’’ (Internal quotation marks omitted.)
Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769 (2018).
   Under our rules of practice, a motion to dismiss for
lack of subject matter jurisdiction may be raised at any
time. See Practice Book §§ 10-30 and 10-33; Stroiney
v. Crescent Lake Tax District, 205 Conn. 290, 294, 533
A.2d 208 (1987). In the present case, the defendant’s
posttrial motion to dismiss was predicated on the plain-
tiff’s failure to comply with the notice requirements
of § 13a-149. The question, then, is whether the court
properly determined, as a matter of law, that the condi-
tion that caused his injuries was not a highway defect
within the ambit of § 13a-149.
   At trial, the plaintiff offered uncontroverted testi-
mony that his injuries were caused by a collision
between his vehicle and an open manhole in a municipal
roadway in New Haven.8 That manhole plainly was an
object in the traveled path that necessarily obstructed
or hindered the use of the road for the purpose of
traveling. See Giannoni v. Commissioner of Transpor-
tation, supra, 322 Conn. 379 (Espinosa, J., dissenting);
see also Machado v. Hartford, 292 Conn. 364, 366, 972
A.2d 724 (2009) (defendant city liable under § 13a-149
for injuries sustained by plaintiff when vehicle ‘‘hit a
large depression in the roadway’’ and then collided with
exposed manhole cover); Federman v. Stamford, 118
Conn. 427, 429–30, 172 A. 853 (1934) (improperly
installed manhole cover constituted highway defect);
Dudley v. Commissioner of Transportation, 191 Conn.
App. 628, 646, 216 A.3d 753 (‘‘the allegedly defective
manhole cover is within the definition of ‘highway
defect’ ’’), cert. denied, 333 Conn. 930, 218 A.3d 69
(2019). Furthermore, the evidence at trial demon-
strated, and the defendant concedes, that the roadway
in question was one that the defendant was ‘‘bound to
keep . . . in repair.’’ General Statutes § 13a-149. Those
undisputed facts conclusively establish, as a matter of
law, that the condition that caused the plaintiff’s injuries
was a highway defect within the purview of § 13a-149.
  As our precedent makes clear, it matters little that
the plaintiff’s complaint did not invoke § 13a-149 or that
his action was predicated on § 52-557n (a). See, e.g.,
Himmelstein v. Windsor, 116 Conn. App. 28, 39, 974
A.2d 820 (2009) (‘‘the absence of citation to § 13a-149
in [the plaintiff’s nuisance allegation] is of no impor-
tance, as a complaint may still contain allegations suffi-
cient to invoke that statute’’), aff’d, 304 Conn. 298, 39
A.3d 1065 (2012). Like the plaintiffs in Ferreira v. Prin-
gle, supra, 255 Conn. 335–36, and Bellman v. West Hart-
ford, supra, 96 Conn. App. 393, the plaintiff in the pres-
ent case claims that his cause of action was in
negligence pursuant to § 52-557n. That statute provides
in relevant part: ‘‘Except as otherwise provided by law,
a political subdivision of the state shall be liable for
damages to person or property caused by: (A) The negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . pro-
vided, no cause of action shall be maintained for dam-
ages resulting from injury to any person or property
by means of a defective road or bridge except pursuant
to section 13a-149. . . .’’ (Emphasis added.) General
Statutes § 52-557n (a) (1). Our Supreme Court has con-
strued § 52-557n ‘‘to provide that an action under [§ 13a-
149] is a plaintiff’s exclusive remedy against a munici-
pality . . . for damages resulting from injury to any
person or property by means of a defective road or
bridge.’’ (Internal quotation marks omitted.) Wenc v.
New London, 235 Conn. 408, 412–13, 667 A.2d 61 (1995).
For that reason, ‘‘[e]ven if a plaintiff does not plead
§ 13a-149 as a means for recovery, if the allegations in
the complaint and any affidavits or other uncontro-
verted evidence necessarily invoke the defective high-
way statute, the plaintiff’s exclusive remedy is § 13a-
149.’’ Bellman v. West Hartford, supra, 393–94.
   We likewise disagree with the plaintiff that the cause
of a particular highway defect, in this case an open
manhole, alters the analysis of whether a municipality is
liable under the highway defect statute. As our Supreme
Court has explained, ‘‘if two sources of negligence com-
bine to create a defect, which defect is then the sole
proximate cause of a plaintiff’s injuries, the party bound
to maintain the area wherein the defect is located can
still be held liable under the relevant highway defect
statute. . . . [I]t follows that the manner in which a
defect is created in and of itself has no bearing on . . .
liability under the statute. Rather, it is the existence of
the defect and the . . . actual or constructive knowl-
edge of and failure to remedy that defect that are of
primary importance in making out a prima facie case
of . . . liability . . . . Indeed, this court previously
has concluded on several occasions that a municipality
may be liable under the applicable highway defect stat-
ute despite the fact that the defect was created by the
negligence of a third party. . . . Because there exists
a statutory duty to maintain highways such that they
are safe for ordinary use, liability under the highway
defect statutes is premised on the existence of and the
failure to remedy a defect, rather than on negligence
in creating . . . a nuisance or other obstruction to
present a danger to travelers.’’9 (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Himmelstein v. Windsor, 304 Conn. 298, 314–15, 39
A.3d 1065 (2012); see also Machado v. Hartford, supra,
292 Conn. 377–78.
   The evidence presented at trial further demonstrated
that the defendant had knowledge of the highway defect
at issue. The plaintiff offered uncontroverted testimony
that, soon after his vehicle collided with the open man-
hole, a snowplow approached with the defendant’s
name and insignia on it. After stopping at the scene,
its driver informed the plaintiff that he had knocked
the cover off the manhole. As our Supreme Court
explained in a case that also concerned a highway
defect involving a manhole, the fact that ‘‘the defective
condition which produced [the] plaintiff’s injury was
due to the act of [the defendant municipality’s] own
representatives . . . in itself would be sufficient to
impute to it notice of that [defective] condition.’’ Feder-
man v. Stamford, supra, 118 Conn. 430. That logic
applies equally to the present case.10
   The plaintiff also contends that ‘‘the unique circum-
stances of this case would not have permitted [him] to
pursue’’ a highway defect action. We disagree. At trial,
the plaintiff offered the testimony of an expert in snow-
plow operation and safety, who testified that, as a mat-
ter of uniform operating procedure, ‘‘when a snowplow
operator hits [an obstacle in the roadway] every safety
bell that they have should go off. And they should stop,
find out what it was they did and to protect the scene
. . . for the traveling public and find out about the
damage to the truck before they leave the scene.’’ The
plaintiff also presented the testimony of the defendant’s
Director of Public Works, who similarly testified that,
when the defendant’s snowplows ‘‘hit something
abruptly,’’ including manhole covers, the driver is sup-
posed to stop the vehicle. That undisputed testimony
undermines the plaintiff’s contention that the circum-
stances of this case precluded him from pursuing a
claim that the defendant failed to take reasonable mea-
sures to remedy the defective roadway condition that
he encountered on the morning of January 21, 2011.
   The plaintiff brought this action pursuant to § 52-
557n (a), which provides in relevant part that ‘‘no cause
of action shall be maintained for damages resulting
from injury to any person or property by means of a
defective road or bridge except pursuant to section 13a-
149. . . .’’ The evidence at trial unequivocally estab-
lished that the plaintiff’s injuries were caused by a colli-
sion between his vehicle and an object in the traveled
path that necessarily obstructed or hindered the use of
the road for the purpose of traveling—namely, an open
manhole. For that reason, the plaintiff’s exclusive rem-
edy was pursuant to the highway defect statute. Fer-
reira v. Pringle, supra, 255 Conn. 341. The plaintiff,
therefore, was obligated to comply with the notice pro-
visions of § 13a-149 in order for the Superior Court to
have jurisdiction over his action. See id., 340; Bellman
v. West Hartford, supra, 96 Conn. App. 394. Because
the plaintiff failed to do so, we conclude that the court
improperly denied the defendant’s posttrial motion to
dismiss the plaintiff’s action for lack of subject matter
jurisdiction.
  The judgment is reversed and the case is remanded
with direction to grant the defendant’s posttrial motion
to dismiss and to render judgment accordingly.
      In this opinion the other judges concurred.
  1
     The plaintiff also named Geico General Insurance Company as a defen-
dant in his complaint. At trial, the court rendered a directed verdict in favor
of Geico General Insurance Company, the propriety of which the plaintiff
does not contest in this appeal. We therefore refer to the city of New Haven
as the defendant in this opinion.
   2
     The defendant also claims that the court improperly denied its motion
to set aside the verdict. In light of our conclusion that the court improperly
denied its posttrial motion to dismiss, we do not address that claim.
   3
     It is undisputed that the defendant is responsible for maintaining its
municipal roadways, which includes snow removal.
   4
     As the plaintiff testified, it was ‘‘a violent collision with [the vehicle’s
front tire and] the front of that manhole and then the front tire came up,
[the] back tire went in and [then] came out. The [vehicle] traveled not too
much longer and just died.’’
   5
     General Statutes § 52-557n (a) (2) (B) provides in relevant part that a
municipality ‘‘shall not be liable for damages to person or property caused
by . . . negligent acts or omissions which require the exercise of judgment
or discretion as an official function of the authority expressly or impliedly
granted by law.’’
   6
     At oral argument before this court, the defendant’s counsel clarified that
the defendant was not contesting the propriety of the denial of its pretrial
motion to dismiss, as that decision necessarily was predicated on the plead-
ings set forth in the plaintiff’s complaint.
   In this regard, we note that ‘‘[t]rial courts addressing motions to dismiss for
lack of subject matter jurisdiction . . . may encounter different situations,
depending on the status of the record in the case.’’ Conboy v. State, 292
Conn. 642, 650, 974 A.2d 669 (2009). When a court is presented with a pretrial
motion to dismiss, it generally is obligated to ‘‘consider the allegations
of the complaint in their most favorable light.’’ (Internal quotation marks
omitted.) Tremont Public Advisors, LLC v. Connecticut Resources Recovery
Authority, 333 Conn. 672, 688, 217 A.3d 953 (2019). The court’s decision on
a posttrial motion to dismiss is different, as it no longer is confined to the
operative pleadings and properly admitted evidence may be considered. See
D’Angelo v. McGoldrick, 239 Conn. 356, 365–66 n.8, 685 A.2d 319 (1996).
For that reason, there is ‘‘no inconsistency’’ when a trial court denies a
pretrial motion to dismiss, but thereafter grants a posttrial one. Id.
   7
     General Statutes § 13a-149 obligates a plaintiff to provide ‘‘written notice
of such injury and a general description of the same, and of the cause thereof
and of the time and place of its occurrence . . . within ninety days there-
after . . . to a selectman or the clerk of such town, or to the clerk of such
city or borough, or to the secretary or treasurer of such corporation. . . .’’
   8
     At trial, the following colloquy occurred:
   ‘‘[The Plaintiff’s Counsel]: When you got to the area of [the] manhole,
what happened to your vehicle?
   ‘‘[The Plaintiff]: The cover had gotten flipped off so I went down into the
manhole, the front tire of the truck—a violent collision with the front of
that manhole and then the front tire came up, back tire went in and that
came out. The truck traveled not too much longer and just died.
                                         ***
   ‘‘[The Plaintiff’s Counsel]: [How] . . . violent was the impact when you
fell into the manhole cover with your truck?
   ‘‘[The Plaintiff]: Well, it was pretty violent. The truck that I was driving
at the time was a small Ford Ranger so the tires were smaller so they went
down quite deep into the manhole. The truck struck the other side, which
is an immovable object. It hit it hard enough the back tire went through
the same thing and the truck just died after it came out of the manhole.
   ‘‘[The Plaintiff’s Counsel]: And did your body strike any part of the interior
of the [truck]?
   ‘‘[The Plaintiff]: Yes, it did.
   ‘‘[The Plaintiff’s Counsel]: And . . . what part of your body struck what
part of the interior of your truck please?
   ‘‘[The Plaintiff]: The truck—my face and jaw hit the steering wheel. My
body got thrown against . . . the driver side door of the truck and back
against the rear windshield, the back window of the truck.’’
   9
     Moreover, this is not a case in which the plaintiff has alleged that the
condition that caused his injuries was created by the negligence of a third
party—his claim is that the defendant, in the course of maintaining its
municipal roadways, negligently caused that condition.
   10
      For that reason, the plaintiff’s reliance on Prato v. New Haven, 246
Conn. 638, 717 A.2d 1216 (1998), is unavailing. Unlike the present case, in
Prato ‘‘[t]here [was] no evidence that the [defendant municipality] actually
knew of this particular [defect] before the plaintiff had been injured.’’ Id., 640.

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