If you are injured in a fall on a business owner’s premises, a crucial question will be whether the dangerous condition was “open and obvious” to you. The open and obvious doctrine can be a difficult hurdle to overcome for injured victims seeking damages for their injuries, but a case earlier this year may have made that hurdle a little lower. 

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What is Open and Obvious? 

As the name implies, an open and obvious condition is one which is out in the open, and readily observable to anyone demonstrating due care. Generally, we all have a duty to look out for our own safety. This includes avoiding dangerous conditions that are open and obvious.

A bunch of boxes negligently left on a floor may be open and obvious. A spill involving a clear liquid may not be.

There are many cases denying recovery for injuries where victims fell over open and obvious conditions. It is a powerful defense. Fortunately however, one Florida Court has said that just because a dangerous condition may be open and obvious may not be the end of the inquiry.

New Case Still Makes Negligent Businesses Responsible

The case in question involves an experienced trucker who fell on a large oil spill. The trucker acknowledged seeing the spill (and cones blocking the area) even before falling on it. Hearing this, the trial court dismissed the trucker’s case, based on the open and obvious doctrine.

But the appellate court disagreed. The appellate court pointed out that a landowner owes two duties to those on its property lawfully: 1) A duty to warn of dangerous conditions, and 2) A duty to maintain the premises in a safe condition.

The Court agreed that because the spill was open and obvious, that there could be no claim under #1. There is no need to warn someone of something that’s obvious. 

But that does not mean that the landowner isn’t liable under #2. Even with open and obvious conditions, there is still a duty to maintain the premises safely. The Court overturned the trial court, and sent the case back for further litigation on whether the land owner maintained the property safely. 

Decision Benefits Injured Victims

The case is important for injured victims. Property owners cannot simply neglect their premises and allow dangerous conditions to exist, just because they’re obvious.

This makes common sense. Otherwise, a business owner could completely neglect a dangerous situation just because it’s obvious. Can you imagine a grocery store allowing a wine spill to sit for hours unattended, just because the wine is bright red and obvious? Or allowing a ladder to sit smack in the middle of a shopping aisle for days just because the ladder is easily observable? Any ruling other than this one would allow such absurd situations.

Victims who can prove that a business owner had improper procedures, or failed to clear or fix a dangerous condition, now still have an avenue to recover damages. And, defendants no longer can hide behind the open and obvious doctrine as a shield to protect themselves from liability for their negligent actions. 

Slip and fall injuries can be more complex than you may think, and small facts may have big legal ramifications to your case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

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When a car hits a pedestrian, it’s no wonder that there is often very serious injury that results. On one side are tons of steel barreling at significant speeds. On the other side, is a soft, slow, and vulnerable human body, which may not even see the accident coming. The result is almost always a huge disaster.

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The Facts on Pedestrian Accidents

From 2009-2013 in Miami Dade County, there were 6,419 car-on-pedestrian accidents of varying degrees of injury. In the 0-17 age group, at least one injury was reported in 84% of accidents. Children, who are often walking about the neighborhood, playing in the street with friends, or who just may not appreciate the dangers of walking amongst cars, are sadly the ones most at risk.

On the surface, a pedestrian-on-car accident seems like a clear cut case that any attorney can handle. After all, those in cars are responsible for maintaining their vehicle carefully, and we all have a duty to look out for not just other cars, but for pedestrians.

But legally, car-on-pedestrian crashes can be some of the most difficult cases there are, and should not be handled by anyone other than very skilled and experienced personal injury attorneys.

The Difficulty of Pedestrian Cases

In Florida, we have a contributory law system. This means that if you are injured, a jury can evaluate how responsible you are for your own injures. If you are, for example, 50% responsible for your own injuries and a jury feels your injuries are worth $100,000, you will be awarded only $50,000. 

Contributory laws can pose a problem to pedestrian accident cases. The drivers of vehicles will often allege as defense to lawsuits that you, the pedestrian, “jumped out into traffic,” or “came out of nowhere.” They will say that they had “no chance to avoid” you. In essence, they are simply arguing that you are responsible, in full or in part, for your own injuries. 

Thus, these kinds of cases have significant factual disputes. These disputes are often resolved through detailed testimony about: 

  • The exact location of the pedestrian when hit;
  • The speed of the car;
  • Any obstacles that may have blocked the driver’s view;
  • Whether the pedestrian looked out for traffic before crossing; and
  • The first time the driver saw the pedestrian, and the first moment the driver applied his brakes. 

Many of these questions must be determined by using experts. Experts may evaluate tire skid marks, angles of views, and time and speed calculations, to determine where both parties were at the time of the accident.

The experts make their determinations based upon the testimony of the parties. This makes party depositions—and having attorneys that can prepare you for them—of utmost importance. The difference in witness testimony between 1 second or 2, or 3 feet or 4, as given in a deposition, can alter an expert’s opinion enough to change the outcome of a case.

Many drivers will also allege that pedestrians were violating established laws, such as not crossing at crossing areas. While violating these laws does not mean that a driver can hit you at will, it can create persuasive arguments to a jury for a driver. 

Evaluation of facts, preparing for depositions, and evaluation of expert testimony, can make the difference between winning and losing your personal injury case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

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Florida law has a very complex and often expensive pre-suit process for anyone who seeks to sue for medical malpractice. The pre-suit requirements are mandatory, and must be strictly complied with. But in many cases, it may not be so clear whether an injury was caused by medical malpractice or not. If that question is answered incorrectly, the result can be devastating for a case.

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The Pre-Suit Requirements

If someone believes they have been a victim of medical malpractice, notice to all prospective defendants must be sent, describing the nature of the claim and the injuries. The potential defendants can then reject the claim, offer to settle it, or request the claim go to arbitration.

The parties can also engage in informal discovery. This includes taking unsworn statements, and obtaining and reviewing medical records.  Additionally, the parties must make a presuit investigation of the merits of their claims or defenses, which must be corroborated by medical evidence.

Practically, this means that a victim must incur the financial expense of getting a medical opinion to back up their claim, even before the lawsuit is filed.

Medical Malpractice vs. Ordinary Negligence

It may seem easy to determine what is a malpractice claim and what isn’t. But in many situations, the line isn’t so clear.

Someone who slips and falls over water on the ground in their doctor’s office would not have a malpractice claim, but rather, just a general negligence claim.

This theory was tested in a recent case, when a victim was in a hospital and died when she was dropped while being transported off of an X-Ray table. The victim’s representative sued, and the Hospital tried to dismiss the claim on the grounds the pre-suit requirements had not been complied with. The trial court agreed with the hospital, dismissing the plaintiff’s claim.

On appeal, the plaintiff’s attorney argued that pre-suit requirements were not necessary because dropping someone on an X-Ray table was not injury by medical malpractice, but rather by normal, ordinary negligence. But the appellate court disagreed, siding with the trial court, and affirming the dismissal of the claim.

The appellate court determined that medical malpractice generally arises out of medical treatment, diagnosis or care. But it also determined that once a procedure has begun, any incident or accident which occurs during that procedure will generally be considered medical malpractice.

The Court cited many cases where this has been applied. In some, machines that were used for medical testing or procedures malfunctioned, causing injury. In others, patients had fallen from stretchers. In all cases, the claims had been held to be medical malpractice—not ordinary negligence.

The Court compared these cases to cases where hot tea had been spilled on patients, or where orderlies accidentally kicked patients, where the negligence was found to be general negligence.

The line between malpractice and ordinary negligence is far from clear, and the court has hardly set a bright line test to know when a case is based on medical malpractice as opposed to ordinary negligence. Get that question wrong and ignore pre-suit requirements, and an otherwise very good claim can be barred forever.

Fine and detailed decisions and analysis at the start of your case can be the difference between winning and recovering nothing. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

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On May 16, 2008, plaintiff Alcira Marcella Britt was hit by drunk driver Shanna Clayton who was employed as an exotic dancer at Club Lexx in Miami, Florida. Ms. Britt was obeying the law and driving safely when Clayton’s car crashed into hers, leaving her seriously injured. Britt’s injuries caused her disfigurement and unable to live as she had before. Her injuries were severe that and she has the ability to earn money, as well.

All of Britt’s pain and suffering were due not only to Clayton’s negligence, but also due to the negligence of the owners of Club Lexx. Actually, Club Lexx encouraged Clayton to drink with customers while working and then left her to drive home intoxicated. The defendant, Club Lexx, owed a duty to the plaintiff, Alcira Marcella Britt, as well as to the general public.  The club owners failed to supervise their exotic dancers as far as how much alcohol they were consuming while on the job.  Furthermore, knowing that their employees, such as Clayton would have to drive home at the end of their shift, this was totally irresponsible.

Club owners have a responsibility to put policies and procedures in place which assist intoxicated individuals to leave their premises at closing time, without having to operate motor vehicles on public roadways. Clubs should never allow employees to leave their premises, if they are intoxicated to the point where their normal faculties are impaired. Obviously, if they do so then they are endangering the public.

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Liberty City nightclub, The Spot, was the scene of a massive shooting on Sunday, September 28th early in the morning. The nightclub which is located at NW 7thave and 64th street in Miami, was hosting a party when gunfire broke out randomly throughout the club. According to sources, 15 people were shot, including many under the age of 21.  It was initially reported that the club obtained a liquor license this past April and was legally permitted to serve alcohol until 3 am.  Yet, its doors appear to have been open to minors of nearly all ages. In fact, a young girl only 12 years of age was in the nightclub during this shooting. One of those critically wounded was a 15 year old boy.

As the criminal investigation continues, more information about the potential negligent and illegal operations of this business are trickling in. Our Miami Crime Victim Lawyers are keeping a close eye on the criminal investigation and representing one of the innocent shooting victims. Earlier today, news reports were that the club manager was arrested. It was also reported that the club was licensed to operate as a business but not a “nightclub”.  Other news reports state that the “Spot” may only have been licensed to sell beer and wine only.

Under Florida common law negligence principals, property owners and operators have a duty to maintain their premises in a reasonably safe condition.  The latest news reports of numerous violations may be proof of not just ordinary but “gross negligence” under Florida law.  This could open the door to potential punitive damages under Florida Statutes 768. 72.

According to sources, there may have been 2 shooters involved. However, no suspects have been arrested. The only lead the police have is that the getaway vehicle may have been a white car.

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When a personal injury case goes to trial, many attorneys are prepared for the trial itself. They may line up witnesses, prepare evidence, and have a good working knowledge of trial rules. But many attorneys don’t realize how important it is to not only understand the rules of evidence at trial, but to also understand the rules of appeals.

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Preserving Matters for Appeal

Contrary to popular belief, an appellate court cannot review just anything that may go wrong or be improper at trial. An appellate court can only consider arguments that are made at trial. This is often called “preserving” an issue for appellate review. And it means that a trial lawyer must understand what has to be done at trial to preserve problems for appellate review.

The reason why matters must be preserved is because, generally, an appellate court can only consider things that a trial court gets wrong. But if an attorney doesn’t bring an objection to the trial court’s attention, or give a trial court the opportunity to correct a mistake, the trial court has been deprived of the chance to rule correctly or incorrectly.

A well-timed objection is enough to sufficiently preserve an issue for appellate review. But the failure to object will often mean that even if there was a problem that affected the outcome of your trial, there is nothing an appellate court can do to overturn it.

Injured Plaintiff Loses Appeal Because of Failure to Preserve Errors

This principle was again emphasized in a recent case where a defense attorney made improper arguments in closing.

Once again, contrary to what you may see on movies or TV, an attorney making closing arguments can’t just say anything. Closing arguments must be limited to discussion of evidence that was presented at the trial.

The case involved a plaintiff whose nails were injured during a paraffin wax treatment. She testified that her nails were disfigured for at least nine months, but she provided no photos of her nails during that time period.

The defendant’s attorney argued at closing that the plaintiff’s nails had healed during those nine months—an argument not based on any evidence since there were no photos of that time period admitted into evidence. The defendant’s attorney also stated that “this is a courtroom, not a lottery,” implying to the jury that the plaintiff was simply seeking to strike it rich by bringing the claim.

Ordinarily, both of these comments would be improper, being comments based on information not in evidence.

Sure enough, the jury entered a verdict giving plaintiff only 20% of the damages she was seeking.

The plaintiff appealed, arguing those comments were improper and prejudicial. But the plaintiff’s attorney did not object to them at trial, and did not request a “curative instruction” –an instruction by the judge to the jury to ignore a comment made during the trial. The plaintiff’s attorney also failed to move for a mistrial.

The appellate court found that the arguments had not been properly preserved at trial. It acknowledged that the comments were incorrect, but simply found it was powerless to do anything.

The case again emphasizes the importance of timely objections, and the proper motions that must be made, to allow problems to be considered at the appellate level.

If you are injured, you want attorneys who understand not just trials, but appeals as well. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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Normally in a jury trial involving personal injuries, a jury is free to award as damages whatever amount they see just and fit, based upon the evidence presented. Traditionally there has been no cap or maximum on an amount that can be awarded, again, so long as the award is supported by the evidence presented.

However, with the push of doctor and insurance lobbyists, a few years ago, Florida passed a cap on certain damages that could be recovered by victims and their families in a medical malpractice claim.

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About the Cap

The cap was on what is known as noneconomic damages. Noneconomic damages are things like pain, suffering, mental anguish, loss of the enjoyment of life, and other aspects of injury that don’t have an exact price tag on them, but surely, have a value to the person injured.

The lobbyists were concerned at the time about “runaway juries”—juries that were so persuaded by emotion, that they awarded what was publicly perceived to be excess verdicts. And as a result, it was claimed, insurance premiums went up, and doctors could not afford to practice medicine.

So the Florida Legislature passed a damage cap of $500,000 to $1 million (if the victim was in a coma or vegetative state) on noneconomic damages only in malpractice cases. Any verdict more than this for noneconomic damages would be reduced to that amount.

The Florida Supreme Court Strikes Down the Law

Despite the law being instituted in 2005, only this year has it been challenged in a case that went to the Florida Supreme Court. There, a victim of malpractice contended that the statute was unconstitutional.

The Florida Supreme Court first looked at the equal protection clause. Under equal protection, a law cannot discriminate unfairly between two classes of people. However, if a distinction is “rational,” the law may distinguish between two people. An example of a rational and legal distinction would be the laws requiring truck drivers to obtain one type of license and car drivers another.

The court found the damage cap law violated equal protection because the maximum amount was aggregate. That means that the total amount ($500K-$1mil) is shared amongst all possible Plaintiffs. So in a case with two injured Plaintiffs (say, a husband and wife), both would have the share the total verdict. This means they would receive less per person than a case with just one Plaintiff. The distinction between cases with one injured person, and multiple ones, was found by the court to be arbitrary, and in violation of the Equal Protection clause.

The Court also rejected the legislature’s findings that there was a malpractice crisis in Florida. The Court did not find any meaningful data to suggest such a crisis, and even found that in many cases, awards of over $1 mil involved settlements—not jury verdicts. Even verdicts of that amount are often settled after the verdict for less than the verdict amount.

The court cited studies that the increases in malpractice insurance premiums also were not caused by huge verdicts, but just normal economic cycles in the insurance industry. Additionally, even if premiums were reduced by capping verdicts, there is no requirement that the savings be passed on to doctors, and thus, no guarantee that the supposed “crisis” would be alleviated even if it were true that large verdicts are driving up the cost of insurance.

This is a huge win for those injured by medical malpractice as well as their survivors. It is particularly a victory for those who are the most seriously injured, whose lives have been devastated, and who are most in need of financial reparation. The decision also supports the integrity of our jury system, and the faith that we put in jurors to make the right decisions.

Do you have questions about medical malpractice or any other kind of personal injury? Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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Florida’s laws banning texting and driving are relatively new, and have been scorned for not being tough enough. That may be true as far as criminal penalties, but when it comes to asserting a claim for injuries in civil court, anything that distracts drivers can lead to significant liability when there’s an accident, and that’s been the law for a very long time.

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The Verdict for Texting While Driving

The right to recover damages in civil court for text-related car accidents was reinforced recently when a Florida woman injured in an accident was awarded $4.3 million for permanent disabilities suffered at the hands of a driver who was texting while driving.

Except in this case, the victim was a passenger, and the driver who was texting was her own boyfriend, in her own vehicle. The boyfriend, distracted by the texting,  ran a stop sign and collided with a tractor trailer.

(As an aside to the texting issues, the case also reiterates that if you are a passenger in a vehicle and are injured by a negligent driver, there is still a claim against the driver. Many victims are reluctant to sue same-car drivers, who are often driving with friends or family, but putting aside that personal issue, drivers in the same car you are as responsible for your safety as drivers of other vehicles).

The Sad Texting Statistics

Studies show that a quarter of all motor vehicle crashes are due to texting, which amounts to 1.6 million a year.

Despite the statistics and the passage of the new law, enforcement has been minimal. Only 352 citations have been given in Miami for texting while driving violations, according to the Florida Highway Patrol. This is largely because it is a secondary offense, meaning a driver can only be ticketed if they are also violating another traffic law at the same time.

And, unlike DUI verdicts, which may not be discharged in bankruptcy by negligent parties, texting-related accidents don’t share the same protection. This means that a guilty party may be able to discharge any judgment against it for injuries caused by texting while driving.

Another deterrent to texting and driving should be the relative ease of proving texting while driving cases. Text records are kept by any cell phone carrier. In a personal injury lawsuit, a victim is entitled to obtain the cell phone records of the negligent party, and indications of text message activity will almost always lead to liability.

Still, that’s only part of the battle. Adding to the tragedy of the woman awarded $4.3 million was the fact that the driver in the case had no insurance. In fact, the driver didn’t even show up to the trial, or mount any defense. It is unlikely that the victim will ever reap any recovery of her judgment.

We Can Help You Today

Questions about an accident caused by DUI, DWI, texting or other distracted-driving situations? Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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When a personal injury case gets submitted to a jury, the jury doesn’t just automatically know what questions it must decide on, nor does it know what kind of law applies. It’s up to the parties, at the conclusion of a trial to instruct a jury to give them guidance on how to rule. That’s normally done by submitting jury instructions.

Both parties must agree to the instructions, and when they can’t it’s often a judge that will make the final decisions.

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Those instructions are vitally important. As you can imagine, subtle wording can persuade a jury, and misstating the law, or what the parties have to prove to win, can be the difference between winning and losing. And when jury instructions are incorrect or inaccurate, it can create huge problems, such was the case in a recent appeal to Florida’s Third District Court of Appeals.

Bad Instructions Create a Problem

In Coba v. Tricam Indus., Inc., an injured party was suing for damages that were alleged to be caused by a defective design in a product. The jury instructions read:

“(1) Did Defendants, Tricam Industries and/or Home Depot, place the ladder on the market with a design defect, which was a legal cause of Roberto Coba’s death?

(2) Was there negligence on the part of Defendants, Tricam Industries and/or Home Depot, which was a legal cause of Roberto Coba’s death?”

The jury answered “no,” to the first question, but “yes” to the second. The problem is that the injured party wasn’t suing for negligence—only for a design defect. Thus, when the jury said “yes” to the second question, it was saying yes to liability under a theory that didn’t exist in the case. The jury was allowed to do that because of the way the jury instructions were drafted.

The Appellate Court Cites Fundamental Error

This seems like an easy appeal and an obvious error. The verdict for negligence should be overturned. But the defendant’s attorney made what could have been a crucial error—he or she failed to object to the jury instructions during the trial. You cannot appeal bad jury instructions if you don’t raise the issue at trial. Because the attorney failed to object, the injured party argued that the verdict should be allowed to stand under the instructions as written.

But the appellate court disagreed. Even though an objection must be normally made during trial or else it’s waived, the court made an exception where jury instructions were fundamentally flawed.

Because it would be logically impossible for a jury to find a defendant did not design a dangerous product, but also still believe the defendant was negligent even though the only theory of negligence would be based on the defective design, the court found the error in the case to be fundamental, and reversed the jury verdict.

Forgetting to raise an issue at trial can forever bar a party from arguing something at the appellate level. Thus, the entire problem could have been avoided both by submitting properly worded jury instructions, but also by understanding the subtle rules of appeal.

Small oversights at trial can cause big problems later on. If you are injured, make sure that you have attorneys that understand the laws of trial and appeal. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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There are some legal fictions that seem to exist no matter how true or untrue they are. One such fiction is the so-called “one free bite rule.” This is the belief that a dog can bite someone the first time without the owner being liable, but the second time there’s liability. This is actually not true in Florida, though.

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Dog Bite Laws

The law is clear that if a dog bites you, the owner is responsible for your injuries, regardless of whether Fido has ever bitten someone in the past, and regardless of the dog’s propensities for being a sweetheart or a killer in the past. There are some exceptions to this law:

  1. The person bitten must be lawfully on the property. In other words, a trespasser cannot sue for suffering a dog bite on another’s property. People who are in public places, or on property with permission, are entitled to sue, as are people who have a legal right to be on your property without express permission, such as utility meter readers, municipal officials doing inspections, or of course emergency workers.
  2. If the owner has a “dangerous dog” sign up, they are generally protected from liability if the dog bites someone while on their property.

The laws do allow a court to consider how a victim may have provoked a dog, or who may have otherwise acted in a way that contributed to the possibilities of being bitten. In some situations, this makes sense. Someone should not be able to tease a dog, waive food in front of it, or run aggressively towards it, and then complain about damages suffered when they are bitten by the dog.

But often, this calls for tricky evaluation of dog psychology. How does a court actually determine what kind of activity provokes a dog, or measure how much the dog considered a particular event when deciding to bite?

Non-Human Bites or Non-Bite Injuries

Dog suits are not just limited to human bites, however. Dogs can often cause injury even without biting, or else, by biting non-humans (other animals). The liability is much broader in these cases.

A dog simply needs to cause damage for the owner to be liable, without concern of provocation or whether there was a dangerous dog sign up. Literally, any action a dog takes, directly or indirectly, will give rise to liability. There are even cases where a dog stepped on a loaded gun, shooting another person, and the dog owner was liable.

But in most cases, non-human or non-bite injuries will be simply property damage claims. Although your cat is a valued member of the family, the law sadly treats it as only property. Thus, your damages when a dog kills your cat is the value of the cat as property (or else the value of medical treatment). If a dog damages your fence, you surely can recover the value of the fence repair, but not much else.

If you are injured by a dog bite or other domestic animal, facts are important, and there are steps to be taken to make sure that you get fair recovery. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

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