No. 2-13-1191 Opinion filed September 30, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

ROSEMARY O’ROURKE, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 11-L-906 ) BRUCE McILVAINE and McILVAINE ) ENTERPRISES, INC., ) Honorable ) Diane E. Winter, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.

OPINION

¶1 The trial court granted summary judgment against plaintiff, Rosemary O’Rourke, on her

negligence complaint against defendants, Bruce McIlvaine and McIlvaine Enterprises, Inc.

Plaintiff’s complaint sought to hold defendants accountable for a home invasion committed

against her by Alejandro Requena, who had previously worked under defendants’ supervision

on an insulation project inside plaintiff’s home. The trial court reasoned that defendants could

not be held responsible for the crime, because the work relationship between defendants and

Requena had ended several weeks before and thus plaintiff’s home could no longer be

considered defendants’ jobsite. For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 In November 2011, plaintiff filed her complaint for negligent hiring and retention. As

later brought out in summary-judgment proceedings, the uncontested facts of this case are as

follows. In 2010, defendant Bruce McIlvaine (Bruce) was president of defendant McIlvaine

Enterprises (McIlvaine), a residential construction firm. Plaintiff hired McIlvaine to replace

insulation in the attic of her home in Bannockburn, where she lived alone. On January 12, 2010,

Bruce began the insulation project, accompanied by an independent contractor he frequently

retained to assist him with projects. On the first day of the job, Bruce realized that he needed

additional help to finish the project within the agreed time frame. Bruce consulted an associate,

who recommended a laborer named Santiago Waight. Bruce contacted Waight and asked if he

could assist with the insulation project and if he could find others to help as well. Waight agreed

to help and said that he would bring two others. The next day, January 13, Waight arrived at

plaintiff’s home with two men, Requena and Alan Romero. McIlvaine did not inquire into

Requena’s background. In fact, Requena had criminal convictions for unlawful possession of a

motor vehicle and for theft from, and abuse of, an elderly person. McIlvaine permitted Waight,

Romero, and Requena to work on the project, which they completed the next day.

¶4 On March 9, 2010, a man rang plaintiff’s doorbell. Plaintiff did not recognize the man

and addressed him through a second-story window. The man said that he was there to clean the

furnace. Plaintiff said that he had the wrong house, and then she phoned the police. Later that

day, plaintiff heard a noise inside her house. She stepped out of her bedroom to see a man whom

she later identified as Requena. She had not invited Requena into her home. The record

suggests that he broke into the house through an outside door. Requena restrained plaintiff, beat

her, and stole items from the house.

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¶5 Plaintiff’s complaint alleged that defendants were negligent for failing to investigate

Requena’s background before allowing him into plaintiff’s home. Plaintiff asserted that

defendants’ negligence permitted Requena to learn “intimate details” about plaintiff and her

home and so was the proximate cause of plaintiff’s injury.

¶6 In January 2012, defendants filed a motion for judgment on the pleadings (see 735 ILCS

5/2-615 (West 2012)). Defendants contended that, as a matter of law, they had no responsibility

for Requena’s actions occurring two months after their work relationship with him was

terminated. The motion was heard by the Honorable David M. Hall, who entered a written order

in April 2012 denying the motion “for the reasons stated in the record.” The record, however,

contains no transcript of the motion hearing or other indication of Judge Hall’s reasoning.

¶7 In April 2013, defendants filed a motion for summary judgment (see 735 ILCS 5/2-1005

(West 2012)). Defendants again contended that, as a matter of law, they had no duty to plaintiff

when the home invasion occurred. In response, plaintiff asserted that Judge Hall’s denial of

defendants’ motion for judgment on the pleadings was the law of the case and, accordingly,

required denial of the motion for summary judgment. Alternatively, plaintiff addressed the

merits, contending that there was an issue of material fact as to whether defendants were

negligent. In arguing that defendants had a duty of care toward her, plaintiff commented that

“[t]he rule of law regarding employee liability for criminal acts of employees originates from the

Restatement (Second) of Torts, § 317 (1965).” Plaintiff contended that the requisites of section

317 for the existence of a duty of care were satisfied in this case.

¶8 The summary-judgment motion was heard by the Honorable Diane E. Winter. Judge

Winter concluded that she was not bound by Judge Hall’s denial of defendants’ motion for

judgment on the pleadings, as facts had developed since that ruling. Reaching the merits of the

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summary-judgment motion, Judge Winter applied the principles of section 317 of the

Restatement (Second) of Torts, as summarized by the First District Appellate Court in Escobar v.

Madsen Construction Co.,

(1992):

“[A]n employer may be liable for harm caused by an employee acting outside the scope

of his employment if the employee is on the employer’s premises or using chattel of the

employer, and the employer has reason to know of the need and opportunity for

exercising control over the employee.”

¶9 Judge Winter found that plaintiff’s home could not be considered defendants’ premises,

or jobsite, once the work relationship between Requena and defendants had ended. Judge Winter

also found that Requena was not using any chattel or instrumentality of defendants’ when he

committed the home invasion. Consequently, Judge Winter held that, as a matter of law,

defendants were not responsible for Requena’s actions.

¶ 10 Plaintiff filed this timely appeal.

¶ 11 II. ANALYSIS

¶ 12 The purpose of a summary-judgment proceeding is not to adjudicate a question of fact

but, rather, to determine whether an issue of fact exists that would preclude judgment as a matter

of law. Adams v. Northern Illinois Gas Co.,

(2004). Summary judgment is

appropriate only where “the pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). Our

review of summary-judgment rulings is de novo. Adams,

.

¶ 13 “To prevail in an action for negligence, the plaintiff must establish that the defendant

owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred injuries

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proximately caused by the breach.”

The existence of a duty is a question of law for the court

to decide.

Where a defendant owes no duty, he cannot be found negligent. Washington v.

City of Chicago,

(1999).

¶ 14 The parties frame the issue on appeal as whether an employer may be held liable for the

posttermination wrongful acts of an employee. Judge Winter did not determine whether

Requena was defendants’ employee, or rather an independent contractor, in performing the

insulation work at plaintiff’s home. She found the distinction immaterial to her analysis. The

parties assume for purposes of this appeal that Requena was defendants’ employee, though

defendants stress that they are not thereby conceding that fact.

¶ 15 Plaintiff’s initial contention is that Judge Winter misapplied the law-of-the-case doctrine

by refusing to defer to Judge Hall’s denial of defendants’ motion for judgment on the pleadings.

We disagree. “The law-of-the-case doctrine binds a court only where a court’s prior order was

final.” Commonwealth Edison Co. v. Illinois Commerce Comm’n,

(2006) (appellate court’s denial of motion to dismiss appeal for lack of jurisdiction was

interlocutory and, therefore, not subject to the law-of-the-case doctrine). The denial of a motion

for judgment on the pleadings is interlocutory, or nonfinal. Fabian v. Norman,

(1985). Consequently, Judge Hall’s decision did not bind Judge Winter.

¶ 16 Moving to the merits, we note that the issue of whether an employer is liable for the

posttermination torts of an employee was raised before this court quite recently in Doe v. Boy

Scouts of America,

. In Doe, the defendants were sued in negligence

for a sexual assault that their employee committed several months after his employment was

terminated. The plaintiff urged this court to find that an employer’s duty of care can extend to its

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employee’s posttermination acts. The issue was apparently one of first impression in Illinois, but

we declined to decide it where the plaintiff failed to develop it properly:

“Plaintiff has cited no authority, Illinois or otherwise, for holding an employer liable,

under the tort of negligent hiring and retention, for an employee’s posttermination acts.

Our own research has disclosed no Illinois decision where a negligent-hiring-and-

retention claim was based on posttermination acts. Our cursory research outside Illinois

shows that the issue is controversial enough to have generated a split of authority.

Compare Abrams v. Worthington,

,

,

(no liability, because employment relationship had terminated before the

wrongful act occurred), with Marquay v. Eno,

,

(1995)

(‘The requirement of causal connection to employment does not mean, however, that the

employee’s criminal conduct must have been performed within the scope of employment,

during working hours, or even while the perpetrator was an employee.’). Without

considering the issue deeply, we can appreciate why courts would deem the termination

of employment a logical and practical boundary for employer liability. Plaintiff suggests

that ‘public policy *** dictates’ that ‘liability should extend beyond the temporal bounds

of the employment relationship.’ We think it unadvisable to weigh the wisdom of such a

policy where plaintiff marshals not even one source of authority to her cause and fails to

recognize the controversy in other jurisdictions.” Id. ¶ 41.

¶ 17 We did, however, express our skepticism of the plaintiff’s position:

“Though we decline to make a definitive statement today, we note that the law of

negligent hiring and retention in this state appears to afford little scope for liability for

posttermination acts of employees. We consider first the following representative

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statement of the tort: ‘Liability for negligent hiring arises only when a particular unfitness

of an applicant creates a danger of harm to a third person which the employer knew, or

should have known, when he hired and placed this applicant in employment where he

could injure others.’ (Emphasis added.) Fallon v. Indian Trail School, Addison

Township School District No. 4,

(1986). This language

suggests that the purpose of the tort is to prevent injuries that occur during the term of

employment and, consequently, suggests that the employer’s duty of care does not extend

beyond the cessation of employment.

Significant also is the rigorous standard of proximate causation applied in

negligent-hiring-and-retention cases. Illinois courts require that the injury itself must

have ‘occurred by virtue of the servant’s employment (i.e., “because of the

employment”).’ (Internal quotation marks omitted.) Carter v. Skokie Detective Agency,

Ltd.,

(1993). Though Illinois courts are careful to maintain that an

employer may be liable ‘even though the employee commits the criminal or intentional

act outside the scope of employment’ (internal quotation marks omitted) (id.), liability for

out-of-the-scope acts will rest only where ‘the employee is on the employer’s premises or

using the chattel of the employer, and the employer has reason to know of the need and

opportunity for exercising control over the employee’ (MacDonald v. Hinton,

(2005)). MacDonald relied on Escobar v. Madsen Construction Co.,

(1992), which in turn relied on the Restatement (Second) of Torts,

section 317 (1965). Courts have applied this rule to find liability lacking as a matter of

law where, though the plaintiff came to know the employee only through the

employment, the injury neither occurred on the employer’s premises nor involved the

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instrumentalities of employment. See MacDonald,

(‘Plaintiff

alleged that Maust killed James outside the scope of their employment at Trophies Are

Us, but failed to allege that Maust killed James on defendant’s premises or with the

instrumentalities of the employment.’); Escobar,

(when the

employee shot his coworker, the shooter ‘was not on [the employer’s] jobsite, not doing

[the employer’s] work, and not using [the employer’s] gun.’). In such a case, the

employment only ‘provided a condition for [the] attack’ (by introducing the employee to

the victim) and did not ‘proximately cause[] it.’ Escobar,

. We do

not opine on the wisdom of this approach, but note only that the policy exists and

presents a formidable obstacle that plaintiff does not begin to address. Under this strict

concept of causation, if the injury occurs—as here—after the actor’s employment has

ended, then a fortiori the injury cannot be connected to that employment.” (Emphasis in

original.) Id. ¶¶ 42-43.

¶ 18 Thus, in Doe, we observed—without rendering a holding on the matter—that Illinois

courts have regarded section 317 as placing a significant restriction on an employer’s liability for

the acts of an employee that exceed the scope of the employment. We further commented that

section 317 appears to assume that the employment relationship was ongoing when the acts

occurred on which liability is claimed. Now again we are asked to consider the possibility of

liability under Illinois law for the posttermination acts of an employee. We stress, however, that

plaintiff posits no ground for such liability apart from section 317. Plaintiff’s briefs do, we note,

cite several foreign decisions that find liability for posttermination acts, and some of these courts

rely on such sources as section 302B of the Restatement (Second) of Torts (1965), which states:

“An act or an omission may be negligent if the actor realizes or should realize that it involves an

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unreasonable risk of harm to another through the conduct of the other or a third person which is

intended to cause harm, even though such conduct is criminal.” See, e.g., McGuire v. Arizona

Protection Agency,

(Ariz. Ct. App. 1980) (applying section 302B to the

acts of an ex-employee). Nevertheless, plaintiff’s briefs assume that, in Illinois, no liability for

beyond-the-scope acts of an employee rests apart from section 317. Moreover, at oral argument,

counsel for plaintiff was asked directly whether he was claiming any authority but section 317,

and he unequivocally denied that any other source governed here.

¶ 19 Our analysis begins with the rule that one has no duty to protect another from the

wrongful actions of a third party. Simpkins v. CSX Transportation, Inc.,

;

MacDonald v. Hinton,

(2005). One exception to this rule is where a

special relationship exists. The relationship may be between the injured party and the party

alleged to owe the duty, e.g., “ ‘common carrier and passenger, innkeeper and guest, custodian

and ward, and possessor of land who holds it open to the public and member of the public who

enters in response to the possessor’s invitation.’ ” Simpkins,

(quoting

Marshall v. Burger King Corp.,

(2006)). Alternatively, the relationship may

exist between the party who is the source of the harm and the party alleged to owe the duty,

“such as a parent-child relationship [citations] and a master-servant or employer-employee

relationship [citations].”

¶ 20 Section 317 has been adopted by our supreme court (see Hills v. Bridgeview Little

League Ass’n,

(2000)), and it states:

Ҥ 317 Duty of Master to Control Conduct of Servant

A master is under a duty to exercise reasonable care so to control his servant

while acting outside the scope of his employment as to prevent him from intentionally

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harming others or from so conducting himself as to create an unreasonable risk of bodily

harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which

the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control

his servant, and

(ii) knows or should know of the necessity and opportunity for

exercising such control.” Restatement (Second) of Torts § 317 (1965).

¶ 21 Illinois courts have condensed section 317 as follows:

“[A]n employer may be liable for harm caused by an employee acting outside the scope

of his employment if the employee is on the employer’s premises or using chattel of the

employer, and the employer has reason to know of the need and opportunity for

exercising control over the employee.” Escobar,

.

¶ 22 The trial court determined that Requena committed the harm neither on defendants’

premises nor with defendants’ instrumentalities. As Escobar recognizes, an employer’s jobsite

may be considered its premises for purposes of this rule. See

Plaintiff does not contend that

Requena used defendants’ instrumentalities, but does assert that plaintiff’s home was still

defendants’ jobsite when Requena broke in and injured her. Plaintiff urges us to define premises

“geographically, rather than temporally.” According to plaintiff, “[t]here simply is no authority

to suggest that a site ceases to be a ‘jobsite’ when the job is complete.” Plaintiff, however, has

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the burden of persuasion on appeal, and she cites no authority to suggest that an area does remain

the employer’s jobsite for purposes of section 317 once the job is complete. Certainly, the notion

is not self-evidently true, and it would seem to raise many questions, such as how to assign

responsibility for hazards that might remain on the jobsite. Plaintiff also suggests no limit on

how long an area must or can be deemed an employer’s jobsite once the job is complete. The

fiction that plaintiff proposes certainly would benefit her in this case, but she evidently has given

little thought to its ramifications. Therefore, we find no error in the trial court’s determination

that plaintiff’s home was not a jobsite when Requena broke in and injured her.

¶ 23 Even if we accepted the curious notion that plaintiff’s home was still defendants’ jobsite

when the home invasion occurred, plaintiff’s claim would still fail as a matter of law because

defendants no longer had a right of control over Requena when he committed the crime. The

right of control has long been the dominant element that defines an employment relationship.

See Darner v. Colby,

(1941) (“The right to control the manner of doing the

work is of principal importance in the consideration of the question whether the worker is an

employee or an independent contractor.”); Landers-Scelfo v. Corporate Office Systems, Inc.,

(2005) (“Under the common law, the most important factor in

deciding whether a putative employer is a common-law employer is whether it has the right to

control the manner and method in which the work is to be carried out.”).

¶ 24 Indeed, the employer’s right to control the employee’s conduct is essential for liability

under the doctrine of respondeat superior, according to which an employer is responsible for the

acts of an employee committed within the scope of employment. See Wilson v. Edward

Hospital,

(respondeat superior liability “requires a showing that (1) a

principal/agent, master/servant, or employer/employee relationship existed; (2) the principal

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controlled or had the right to control the conduct of the alleged employee or agent; and (3) the

alleged conduct of the agent or employee fell within the scope of the agency or employment”);

Harding v. St. Louis National Stockyards,

(1909) (“The doctrine of respondeat

superior is applicable where the person sought to be charged has the right to control the action of

the person committing the injury.”).

¶ 25 Moreover, the doctrine of respondeat superior requires that the right to control exist

contemporaneously with the injury on which the employer’s liability is premised. The principles

are well established:

“The general rule is that a person[] who is injured by the negligence of another

individual[] must seek his remedy for damages against the person who caused the injury.

However, the doctrine of [r]espondeat superior is an exception to this rule of law. Under

this exception, the negligence of the employee is imputable to the employer, if the

relationship of principal[-]agent existed at the time of and in respect to the transaction

out of which the specific injury arose. [Citation.]

However, it is of little consequence that the negligent employee was usually the

agent of his employer if, at the time of his tortious conduct toward the third party, the

relationship of principal-agent was temporarily discontinued. If he was not acting as his

employer’s agent at the time of the tort, the employer cannot be held liable for his

negligent act. It is the burden of the plaintiff, who asserts this agency, to show that the

employee was acting as the agent of the defendant-employer when the injury was

inflicted. [Citation.]

In order to meet this burden the plaintiff must show not only that the tortfeasor

was an employee, but that the relationship of principal and agent was not suspended at

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the time of the injury and that this relationship existed with respect to the particular

transaction from which the tort arose. [Citations.] If the plaintiff is unable to sustain

each of these factors, the question of agency need not be submitted to the jury.”

(Emphasis added.) Bolwin v. El Kay Manufacturing Co.,

(1975).

See also Mosley v. Northwestern Steel & Wire Co.,

(1979) (“[I]f the

employee was not acting as the employer’s agent at the time of the injury, the employer cannot

be held liable for the employee’s acts.”).

¶ 26 The “borrowed employee” cases in Illinois highlight that accountability for an

employee’s wrong rests with the employer who was then in control of the employee with respect

to the particular task that the employee was performing when he committed the wrong. For

instance, in Haight v. Aldridge Electric Co.,

(1991), a worker who was

employed by Ald-Cass Electric, Inc., for several years was “contracted” out to another firm,

Aldridge Electric Company, Inc., on a temporary basis. When Ald-Cass “contracted” out an

employee to Aldridge, the understanding was that the employee was under Aldridge’s direction

and did not answer to Ald-Cass for the work performed during the assignment. Several days into

the Aldridge assignment, the worker negligently caused a car accident while driving an Aldridge

vehicle and conducting Aldridge business.

. This court affirmed the jury verdict

holding Aldridge, not Ald-Cass, liable for the worker’s negligent act, as Aldridge was

functionally the worker’s employer at the time of the injury.

¶ 27 Thus, respondeat superior liability requires, at a minimum, that the employer had the

right to control the employee when the injury occurred. The same minimal requirement of a

right to control exists in cases where the employee’s action falls outside the scope of

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employment. An express element of liability under section 317 is that the employer failed to

exercise control over the employee. Plaintiff would have us hold in this case that defendants’

breach was complete when they hired Requena and retained him long enough for him to work at

plaintiff’s home and become acquainted with her living situation. That approach is foreclosed by

the text of section 317 and its comments. The text grounds liability on an employer’s failure “to

control [the] servant while acting outside the scope of his employment as to prevent him from

intentionally harming others or from so conducting himself as to create an unreasonable risk of

bodily harm to them.” (Emphasis added.) Restatement (Second) of Torts § 317 (1965). A

failure of control implies the capacity and authority to control, and “scope of employment”

implies an existing employment relationship. The text contemplates an injurious act that, though

committed outside the scope of employment, is still committed during the employment, that is,

while the employee is subject to the employer’s control. When Requena worked on plaintiff’s

home, he acted within the scope of his employment while under defendants’ control. When

Requena committed the act for which plaintiff claims defendants are accountable, defendants no

longer had the right to control his conduct.

¶ 28 Comment c reinforces the plain meaning of the text:

“c. Retention in employment of servants known to misconduct themselves. There

may be circumstances in which the only effective control which the master can exercise

over the conduct of his servant is to discharge the servant. Therefore the master may

subject himself to liability under the rule stated in this Section by retaining in his

employment servants who, to his knowledge, are in the habit of misconducting

themselves in a manner dangerous to others. This is true although he has without success

made every other effort to prevent their misconduct by the exercise of his authority as

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master. Thus a railroad company which knows that the crews of its coal trains are in the

habit of throwing coal from the cars as they pass along tracks laid through a city street, to

the danger of travelers, is subject to liability if it retains the delinquents in its

employment, although it has promulgated rules strictly forbidding such practices.”

Restatement (Second) of Torts § 317 cmt. c (1965).

¶ 29 The clear message here is that, failing all lesser attempts to control an errant employee,

the employer must exert the ultimate control, which is to fire the employee. The implied lesson

is that the employer fulfills its duty of care by terminating the employee before he can harm

others in connection with the employment (i.e., while on the employer’s premises or while using

the employer’s instrumentalities). The lesson of comment c’s hypothetical is that, if the railroad

company fired the delinquent employees, it would not be responsible if they returned afterward,

stole onto a railway car, and flung more coal. In the same way, defendants are not liable for

Requena’s post-employment decision to injure plaintiff.

¶ 30 Moreover, there is no principled basis for holding that an employer’s right of control

must be contemporaneous with the within-the-scope act that is the alleged basis of respondeat

superior liability—which Illinois case law clearly requires—while holding that an out-of-the-

scope act need not stem from a contemporaneous failure to control.

¶ 31 We conclude, therefore, that section 317 presumes that the actor committed the wrongful

act while still employed and, hence, while the employer still had the right of control. See San

Benito Bank & Trust Co. v. Landair Travels,

(Tex. App. 2000) (rejecting the

possibility of employer liability for the posttermination acts of employee, noting that under

section 317 “control is the critical factor”). Here, since the employment relationship had ended,

defendants had no authority, and therefore no duty, to control Requena when he injured plaintiff.

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As the undisputed facts show that defendants had no duty of care toward plaintiff when the

injury occurred, plaintiff’s negligence action fails as a matter of law.

¶ 32 Without commenting on the potential merits of such a claim, we note that plaintiff’s

cause of action is not based on any alleged failure by defendants to warn plaintiff of Requena’s

criminal background.

¶ 33 III. CONCLUSION

¶ 34 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 35 Affirmed.

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