STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-O/8-34?~ p,AC- CLA/Y)- I IS;:JOIO KATIE GNIADEK,
Plaintiff
ORDER v.
CAMP SUNSHINE AT SEBAGO LAKE, INC., et al.,
Defendants
Plaintiff Katie Gniadek brought this action against Camp Sunshine at
Sebago Lake, Inc., and codefendant Michael Newton, a former volunteer camp
counselor, after Newton sexually assaulted Gniadek on November 25-26,2005.
Gniadek's amended complaint alleges that Camp Sunshine was generally
negligent; negligently hired, supervised, and retained Newton; is vicariously
liable for Newton's actions; and breached its fiduciary duty to Gniadek.
Defendant Camp Sunshine has filed this motion for summary judgment. The
Court grants Camp Sunshine's motion on all counts.
BACKGROUND Defendant Camp Sunshine at Sebago Lake, Inc., is a non-profit
corporation that provides traditional summer camp experiences to children with
chronic or life-threatening diseases and to their families. The Camp does not
charge any fees for its programs and provides free boarding and meals to
1 attendees. To attend, children must be in their usual state of health and be
accompanied by a parent or guardian, who they lodge with. "Camp medicine"
amounting to first aid is provided for all attendees and volunteers, but children
remain under the general care of their parent or guardian. While part of the
Camp's program invol ves support groups, the Camp does not provide substance
abuse treatment or psychiatric or psychological therapy.
In 2005 codefendant Michael Newton, then age 58, "vorked as a volunteer
at Camp Sunshine. He alternately served as a counselor, teen counselor, and food
service worker between July and November of that year. Camp Sunshine
required that Newton fill out an ernployment application and provide two
references before it would accept him as a volunteer. The Camp checked the
references, but did not conduct a background check or personally interview
Newton at that time. His volunteer service ended on November 18, 2005, after
which time he was required to reapply for the 2006 season. 'fhe record shows
that he had submitted an application for 2006, but that he was never offered a
position.
Loren Christopher was another volunteer counselor at Camp Sunshine in
2005. Loren, a female, was 18 years old in August 2005. On August 26, 2005,
Loren told campus director Michael Katz that Newton was making her
uncomfortable. On a trip to Walmart with other volunteers, Newton had
purchased a small card and gift for Loren and then asked her out for lunch or ice
cream. On another occasion, Newton brought food to Loren's room when she
was not feeling well. Newton "vas also in the habit of telling volunteers about his
personal life, and he had made attempts to hug Loren or make other non-sexual
2 physical contact. Loren told Katz that these incidents, together 'with other
attention Newton had paid her, made her uncomfortable in his presence.
Katz responded by telling Loren that he would speak with Newton and
that in the meantime she should try to avoid him. The next day, August 27, 2005,
Katz brought Newton to his office to discuss Newton's behavior. When
confronted, Newton admitted to his actions and claimed that he was just trying
to be friendly. Katz advised Newton to give people more personal space and
ended the meeting.
After the meeting Katz ordered a criminal background check and driver's
history check on Newton. Both checks came back clean. Katz spoke with one
other volunteer about Newton and asked her if she had seen anything unusual.
That vol unteer indicated that she had not, and Katz did not make further
inquiries. Around this time another volunteer claims to have seen Newton "pat
the rear ends or rub the shoulders of several young females, including younger
kids," but that volunteer did not report this to the Camp's officials.
Katie Gniadek and her mother, Kimberly Cooper-Morin, attended Camp
Sunshine during the week of September 3-9, 2005. Gniadek had attended Camp
Sunshine previously and participated in fundraising events, but the dates and
extent of this involvement subject to dispute. 1 There is no dispute, however, thc'lt
Gniadek and Cooper-Morin became acquainted with Newton in his role as a
volunteer counselor while at Camp in 2005. On the Jc'lst day of the session,
Newton gave Gniadek a card and a gift, and asked her if they could stay in
touch. She agreed, and Newton gave her his contact information. Gniadek was 17
years old at this time.
I This dispute is not material to the Court's decision. 3 At each session, Camp Sunshine compiles a list of the attending parents'
and guardians' contact information. The Camp began this practice at the
campers' families' request. This list is made available at the registration desk as a
resource so attendees can maintain communication with each other after leaving
the Camp if they choose. An attendee's name and information only appear on the
list with the attendee's knowledge and consent. Cooper-Morin's name and
contact information was on the list for the session she attended with Gniadek.
Newton finished volunteering at Camp Sunshine on November 18,2005.
He contacted Cooper-Morin five days later on November 23,2005. Newton told
Cooper-Morin that he was going to New York to visit Ana Collado and her
family, and that he was inviting Gniadek, Cooper-Morin's daughter, to go with
him. Collado and her family were former attendees of Camp Sunshine. Cooper
Morin gave Newton her daughter's cell phone number, and Newton proceeded
to call Cniadek and tell her about the trip. These calls were the first contact either
Cooper-Morin or Gniadek had with Newton since their session at Camp
Sunshine ended on September 9,2005.
Newton told Gniadek that he was done with Camp Sunshine, that he had
already visited Anna Collado's son in New York once, and that he was going
back to visit Collado and other former camp attendees and volunteers. Gniadek
indicated that she wanted to accompany Newton to New York, but needed her
mother's permission. Two days later on November 25, 2005, Newton called
Gniadek and told her that he was going to New York that day. Gniadek obtained
her mother's permission and left her home with Newton around 6:00 pm. Both
Gniadek and her mother knew that the trip was a personal, private visit to New
4 York independent of Camp Sunshine. Camp Sunshine had no knowledge of
these events.
Neither Cooper-Morin nor Gniadek contacted any of the people Gniadek
thought she was going to visit before Gniadek left with Newton. In fact, Newton
and Gniadek were not expected in New York. As they were driving, Newton
asked Gniadek about her medications and whether any of them made her sleepy.
She indicated that one would make it very hard for her wake up. Gniadek
believes that her mother may have told Newton about the medications before
they left Maine.
Between 9:00 and 10:00 pm Newton stopped the car at a gas station in
Connecticut and reminded Gniadek to take her medicine. Shortly thereafter he
told Gniadek that he was too tired to continue driving and that they would have
to spend the night at a hotel. Newton drove to a Super 8 Motel and booked a
room with one bed, telling Gniadek that there were no other options available.
Gniadek, feeling very tired and under the influence of her medications, went to
sleep in that bed. She woke up to find Newton on top of her with his fingers in
her vagina. She freed herself, left the room, and called for help. Newton was
arrested and subsequently pleaded guilty to sexual assault.
Camp Sunshine has a $1,000,000 insurance policy that potentially covers
Gniadek's claims. Cniadek filed her initial complaint on June 12, 2008, amended
August 11, 2009, against both Newton and Camp Sunshine. Newton has not filed
a responsive pleading, but Gniadek has declined to prosecute her case against
him. Instead, she has directed her attention to Camp Sunshine. Gniadek's
amended complaint alleges that Camp Sunshine was generally negligent in its
operations and specifically was negligent in its hiring, supervision, and retention
5 of Newton. She also claims that Camp Sunshine breached a fiduciary duty, and
that the Camp is vicariously liable for Newton's assault. Camp Sunshine filed
this motion for surnmary judgment on September 23, 2009.
DISCUSSION
Gniadek's essential theory is that Camp Sunshine's pre-hire screening
processes, training procedures, and program fell below the standard of care
required of a children's camp. She argues that if the Camp had followed
appropriate procedures, Newton would have been identified as a predator and
would not have been accepted as a volunteer or would have been fired after the
incident with Loren Christopher. In a similar vein, Gniadek argues that the
Camp created a dangerous situation by making a list of the campers' guardians'
contact information available, because it was foreseeable that a sexual predator
would attempt to use that information. To support these propositions, Gniadek
has provided the opinions of child-abuse prevention expert Dr. David Jewell in
twenty-eight "statements of material fact." Finally, Gniadek clairns that she had a
special relationship with the Camp creating a heightened duty of care in her case.
Camp Sunshine defends itself by arguing that it had neither the ability nor
the duty to protect Gniadek from Newton at the time the assault took place.
Neither of them had any legal relationship to the Camp on November 25-26,
2005, and the Camp had no knowledge of the planned trip. On the facts, Camp
Sunshine posits that Gniadek has failed to make her prima facie claims on all
counts.
Summary judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
6 M.R. Civ. P. 56(c); see also Leville v. R.B.K. Caly Corp., 2001 ME 77, 9I 4, 770 A.2d
653, 655. A motion for summary judgment must be supported by citations to
record evidence of a quality that would be admissible at trial. Irt. at 9I 6, 770 A.2d
at 656 (citing M.R. Civ. P. 56(e)). An issue of "fact exists when there is sufficient
evidence to require a fact-finder to choose between competing versions of the
truth at trial." IlIkell v. Livillgstoll, 2005 ME 42, 9I 4, 869 A.2d 745, 747 (quoting
Lever v. Acnrtia Hasp. Corp., 2004 ME 35, 9I 2, 845 A.2d 1178, 1179). Any
ambiguities "must be resolved in favor of the non-moving party." Beaulieu v. Tlle
Aube Corp., 2002 ME 79, err 2, 796 A.2d 683, 685 (citing Greeu v. Cessua Aircmft Co.,
673 A.2d 216, 218 (Me. 1996)).
1. Negligent Hiring
In Dexter v. Town of Norway the Law Court recognized the tort of
negligence in selecting a contractor. 1998 ME 195, 9I 10, 715 A.2d 169,172
(adopting Restatement (Second) of Torts § 411 (1965)). While Dexter involved the
selection of an independent contractor, the same principles should apply to the
selection of an employee. BrelllJnn v. Stone Coast Brewillg, 2003 Me. Super. LEXIS
12, * 4 (Jan. 21, 2003). An employer wi11 be liable for harm to third parties caused
by the employer's failure to exercise reasonable care to employ a competent and
careful employee. See Restatement (Second) of Torts § 411.
Camp Sunshine knows there is a risk that sexual predators vvill attempt to
work in positions that bring them into contact with children and young adults.
Gniadek argues that before accepting anyone as an employee or volunteer, a
camp such as Camp Sunshine must at minimum check the person's references,
perform a criminal background check, and conduct a personal interview.
Because Camp Sunshine did not conduct a background check or personally
7 interview Newton before accepting him as a volunteer, GniCldek contends that
the Camp is liable for his subsequent assault.
This theory of liability is flawed. While the Camp admittedly did not
conduct a background check or interview Newton before accepting him as a
volunteer, the Camp did obtain positive references. When the Camp did conduct
a criminal background check Clfter Loren Christopher expressed her discomfort,
the check did not reveal any indication that Newton might be a predator. His
criminal history was dean. At that point Camp officials had spoken with Newton
and believed they had developed an understanding of his motives. Together, the
record does not reveal any objective information in Michael Newton's history to
indicate that he would pose a danger to cClmpers. 2
If Camp Sunshine's screening procedures were inCldequate, that
inadequacy did not result in the acceptClnce of Cln individual who would
otherwise have been disqualified. Gniadek hCls not shown that the pre-volunteer
screening she advocates would have prevented MichClel Nevvton from being a
counselor at CClmp Sunshine. Absent any such showing, Gniadek's c!Clim for
negligent hiring must fail.
2. Negligence
GniCldek contends thClt Camp Sunshine negligently failed to realize that
Newton posed a threat to the campers and allowed him to continue
2 Gniadek refers to a case from the District of South Dakota for the proposition that Newton's lack of experience in working with children should have flagged him as a potential danger. In that case, BrowlI v. Youtll Services, the court emphasized that the defendant academy had affirmatively listed inexperience with children as a flag for additional pre-employment inquiry, and had failed to investigate a negative reference. 89 F.5upp.2d 1095, 1103 (D.s.D. 2000). Here Camp Sunshine does not have such a policy, and Newton's references were positive. Furthermore and as discussed above, there is no evidence that additional inquiry would have yielded informCltion disqualifying Newton from serving as a volunteer. 8 volunteering, with the foreseeable result being that he sexually assaulted a
fonner camper on an independent trip to New York. This claim primarily arises
from the incident involving Newton and Loren Christopher. Gniadek posits that
Newton's behavior toward Loren and his physical contact with other female
campers formed a body of evidence from which Camp Sunshine knew or should
have know that Newton was a predator. Gniadek argues that if the Camp had
adequately investigated Newton after Loren's complaint and had properly
trained its volunteers, then the Camp would have terminated Newton's
volunteer employment. This in turn would have prevented him from meeting
Gniadek, prevented him from subsequently contacting her after leaving the
Camp, and prevented him from assaulting her.
Camp Sunshine counters by arguing that it had no duty to Cniadek at the
time she was assaulted, and that it cannot be liable for Newton's actions. The
Camp agrees that it had a duty to keep Gniadek safe while she was attending her
session in September, and contends that it satisfied that duty by preventing any
harn1 to Gniadek during her week at camp. When Gniadek left Camp Sunshine
uninjured and returned to the sole care a custody of her mother, the Camp
argues that it was discharged from its duty to protect her.
Whether one party Gwes Cl duty to another is a question of law. Willinll15 v.
IIIVCrtlC55 Corp., 664 A.2d 1244, 1246 (Me. 1995) (citing A10rrill v. Morrill, 616 A.2d
1272, 1274 (Me. 1992)). The scope of a duty is premised on many factors
including the foreseeable harms, social policy, "the hand of history, our ideals of
morals and justice, the convenience of administration of the rule, and our social
ideas as to where the loss should falL" Cf71IlCroli v. Pcpill, 610 A.2d 279, 281 (Me.
9 1992) (quoting Tmsinlli v. CUlIlberlmld & York Distributors, IIlC., 538 A.2d 258, 261
(Me. 1988)).
In this case the Court will assume that Camp Sunshine had a duty to
protect camp attendees on its premises from potential predators. The question
becomes whether Camp Sunshine's duty to protect campers in its custody
included a duty to prevent campers from coming into contact with individuals
who might foreseeably in the future attempt to harm them while away from
Camp. Gniadek contends that the Camp did have this duty, or alternately
created such a duty by making the parents' and guardians' contact information
available to attendees and volunteers.
The difficulty with Gniadek's argument is that it performs an end-run
around the newly recognized tort of negligent supervision. In Fortill v. ROlllml
CntllOlic BisllOp of Portlmut, the Law Court recognized the tort of negligent
supervision for the first time. 2005 ME 57, <[119, 39, 871 A.2d 1208, 1215-16, 1222
(adopting Restatement (Second) of Torts §§ 315(b), 317 (1965)). A plaintiff may
hold an employer liable for harm caused by an employee outside the scope of
employment if the plaintiff has a "special relationship" with the employer, the
employee is on the employer's premises or is using the employer's property, and
the employer knows or should know that it can control the employee and
"knows or should know of the necessity and opportunity for exercising such
control." Fortill, 2005 ME 57, 1 39, 871 A.2d at 1222; Restatement (Second) of
Torts § 317. In recognizing the tort of negligent supervision, the Court
acknowledged that it was an exception to the general rule "that an actor has no
duty to protect others from harm caused by third parties." Fortill, 2005 ME 57,
10 9125,871 A.2d at 1217 (citing Brynll R. v. Wntclitawer Bible & Trnct Society afNew
York, Inc., 1999 ME 144, 9! 12, 738 A.2d 839, 844).
The theory of Gniadek's negligence clairn is that Camp Sunshine
improperly allowed Newton to remain as a volunteer, allowing him to form a
relationship and gather information that he later used outside the scope of his
volunteer duties to cause harm. In other words, Camp Sunshine should have
known that it needed to control or remove Newton for the protection of third
party attendees but failed to do so. At its essence this is a claim for negligent
supervision. Gniadek would use the concept of proximate causation to perform
an end-run around the specific requirements of the negligent supervision claim
and substitute it with ordinary negligence. This Court will not stretch the chain
of proximate causation so far.
When Camp Sunshine is in session, it is presumclbly able to exercise some
degree of control over its volunteers and attendees. Assuming that the Camp has
a duty to exercise that control for the attendees safety, both the control and the
duty end when campers return home to the custody of their parents and
guardians. At this point the Camp's relationship with its fanner attendees is
governed by the general rule and the Camp does not have a duty to protect
fanner campers from harm caused by third parties. See id. In this case, if the
Camp was negligent in retaining Newton after the Loren incident it was because
Newton posed a risk to the other volunteers and attendees during the summer
sessions. Gniadek was not harmed while at Camp Sunshine, nor were any other
campers harmed. This undisputed fact establishes that the Camp met its duty of
care.
11 3. Negligent Supervision
As stated above, an employer may be held liable for the intentional torts
of its employee if (1) the plaintiff has a "special relationship" with the employer,
(2) the employee is on the employer's premises or is using the employer's
property, and (3) the employer both knows or should know that it can control the
employee and "knows or should know of the necessity and opportunity for
exercising such control." Fortin, 2005 ME 57, 9[ 39, 871 A.2d at 1222; Restatement
(Second) of Torts § 317.
Gniadek claims that her attendance at Camp Sunshine, her personal
relationships with other campers and some camp volunteers and employees, and
her occasional fundraising activities create a special relationship between her and
Camp Sunshine. She further claims that the list of contact information with her
mother's phone number on it was Camp Sunshine property that Newton, as an
employee, used to assault her. Finally, she claims that the Camp knevv or should
have known that Newton was a threat it could control, but failed to do so.
Consequently, Gniadek would hold Camp Sunshine liable for Newton's assault.
Camp Sunshine disputes all of the above.
In relation to a claim for negligent supervision, the phrase "special
relationship" is something of a term of art. Only the four relationships
enumerated in Restatcrnent (Second) of Torts § 315(b), or "those fiduciary
relationships in which there exists a 'great disparity of position and influence
between the parties'" qualify. DmgoIllir v. Spring Harbor Hospital, 2009 ME 51,
9ICJI 18-19, 970 A.2d 310, 315-316 (quoting Fortill, 2005 ME 57, CJI9I 34, 37, 871 A.2d
at 1220, 1222). Whether such a fiduciary duty exists is a question of law. Fortin,
2005 ME 57, CJI 35, 871 A.2d at 1221.
12 Gniadek does not claim to have one of the enumerated relationships with
Camp Sunshine, but rather to have a special fiduciary relationship. When
discussing this issue, the Law Court has "noted that '[a] fiduciary duty will be
found to exist ... only in circumstances where the law will recognize both the
disparate positions of the parties and a reasonable basis for the placement of
trust and confidence in the superior party in the context of specific events at
issue.'" Forti71, 2005 ME 57,
friendship, business relationships, or organizational relationships" will not
suffice. Brynl7 R., 1999 ME 144, 91 20, 738 A.2d at 846.
Only h'Vo reported cases in Maine specifically address the existence of
special fiduciary duties in relation to negligent supervision. In FortilJ, the Court
found a special fiduciary relationship existed between the child plaintiff and the
defendant diocese. There the plaintiff "was both a parochial school student and
an altar boy," whose parents the diocese knew to be ill. FortilJ, 2005 ME 57, 9I 31,
871 A.2d at 1219. These roles brought the child under "the supervision, control,
and authority of the diocese on a daily basis." lri. at 9I 34, 871 A.2d at 1220. This
relationship "at its very core ... [was] marked by the 'great disparity of position
and influence between the parties' that is a hallmark of a fiduciary relationship."
lri. (ci ting Morris v. ResolutiolJ Triist Corp., 622 A.2d 708, 712 (Me. 1993)).
In DmgOl1lir v. SprilJg Hnrbor Hospitnl the Court found that a special
fiduciary relationship could have existed between the plaintiff patient and
defendant hospital. The adult plaintiff had been adnlitted to the hospital to be
treated for "mental iJJness and drug and alcohol abuse." DmgOl1lir, 2009 ME 51,
13 therapist, followed by weekly counseling sessions with that same therapist. Id. at
errerr 2-3. During the course of treatement, a sexual relationship developed
between the plaintiff and his therapist. Id. The therapist supplied the patient with
drugs and alcohol throughout their relationship. [d. at err 3.
When the Law Court addressed whether the plaintiff had a special
fiduciary relationship with the hospital that employed the therapist, it focused on
the plaintiff's intense dependence on the hospital. The Court found that a patient
who first required hospitalization, and later intensive outpatient treatment for
his severe mental illness, created a relationship "marked by a 'great disparity of
position and influence between the pClrties.'" [d. at err 21, 970 A.2d at 316 (quoting
Fortill, 2005 ME 57, 9[ 34,871 A.2d at 1220). If the plaintiff was able to prove the
alleged facts, the Court held that they would create a special fiduciary
relationship from which the hospital could be held liable for negligent
supervision of its employee.
Here, Gniadek claims that she had a special fiduciary relationship with
Camp Sunshine based on her multiple attendances at Camp, her alleged
fundraising activities on the CClmp's behalf, and her personal relationships with
some Camp employees and volunteers. Even assuming that all of Gniadek's
alleged facts about her involvement with the Camp are true, they do not
establish the existence of a special fiduciary relationship. Cniadek's allegations
show that her relationship with Camp Sunshine, while cherished, was occasional
and casual throughout the year. She maintained her friendships and participated
in irregular fundraising activities. This stands in marked contrast to the
relationships in Fortill and Dragon/iI', where the plaintiffs were obligated to be
under the control of their institutions on a daily or weekly basis.
14 Perhaps more significantly, Gniadek has not alleged any fact that would
indicate that Camp Sunshine had particular influence or authority over her.
Apart from a weeklong session at Camp, Gniadek was not obligated to spend
everyone of her days under the Camp's authori ty, like the plaintiff in Fortin was.
She did not dependent on the Camp for medical treatment, like the plaintiff in
Dmg01l1ir did. The only source of influence Gniadek can claim the Camp held is
Gniadek's own goodwill. The relationship Cniadek describes simply is not one
"marked by a 'great disparity of position and influence between the parties.'" [d.
at <][ 21, 970 A.2d at 316 (quoting Fortill, 2005 ME 57, 11 34, 871 A.2d at 1220).
Gniadek did not have a special fiduciary relationship with Camp Sunshine and
her claim for negligent supervision fails on this basis.
Assuming in the alternative that there was a special fiduciary relationship
between Cniadek and the Camp, her claim still fails because the record shows
that Camp Sunshine did not have control over Newton when he assaulted her.
Newton's service with Camp Sunshine ended on November 18, 2005, five days
before he first contacted Gniadek about the trip to New York. To continue any
relationship with the Camp, Newton had to reapply and be accepted for the 2006
season. When Newton assaulted Cniadek on November 25-26, 2005, the only
control the Camp could have exercised was to threaten not to accept him as a
volunteer. Holding that an employer can control its e1T1ployee by threatening not
to hire him is an contradiction in terms and cannot satisfy the control elernent set
forth in Restatement (Second) of Torts § 317.
15 4. Breach of Fiduciary Duty
As discussed above, Camp Sunshine did not owe Gniadek a fiduciary
duty. Whatever duty the Camp owed to Gniadek while she attended a session
was discharged when she left Camp Sunshine's campus unharmed.
5. Vicarious Liability
When Newton sexually assaulted Gniadek, he was not employed by
Camp Sunshine or otherwise under the Camp's control. Both Gniadek and her
mother knew that he had finished his working relationship with the Camp, and
that the planned trip to New York was personal in nature. Given that Newton
was not employed by the Camp, and given that Cniadek knew that he was not
acting on the Camp's behalf, the Can1p cannot be held vicariously liable or liable
under agency theory for Newton's act. Finally, sexual assault is far removed
from the scope of volunteer duties Newton held when he was associated with the
Camp, and could not gi ve rise to vicarious liabili ty even if that association was
intact when the crime occurred. See Drngomir, 2009 ME 51, 9I 13, 970 A.2d 310,314
(citing Restatement (Second) of Agency § 228) (no vicarious liability because
sexual acts were "not the kind of conduct [the therapist] was employed to
perform").
16 The entry is:
Defendant Camp Sunshine at Sebago Lake, Inc.'s m for summary judgment 7 on the issues of liability is granted. Absent liabil' , ourt does not reach the question of whether Camp Sunshine is entitleMO"c ble immunity.
DATE:~ ~O{tJ
17 KA'!'lot; GNloAUt;K Vb CAM!"' bUNbtlloNt; A'!' bt;JjAGU LAKt; loNC UTN:AOCSsr -2008-0063684 CASE #:PORSC-CV-2008-00342
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02 0000002208 WADE, STEPHEN ---'--------------------------- 95 MAIN STREET PO BOX 3200 AUBURN ME 04212-3200 F KATIE GNIADEK __ PT, RTND 06/06/2008 =-=:....-_--_---..:...:..=....-:..=....-_--=-.:....:......:.....:....:........::....:......:.-=..
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