                                    2016 IL App (1st) 150437
                                                                             THIRD DIVISION
                                                                             March 30, 2016

                                          No. 1-15-0437

EVAN BARR,                                            )              Appeal from the
                                                      )              Circuit Court of
                       Plaintiff-Appellant,           )              Cook County, Illinois.
                                                      )
v.                                                    )              No. 11 L 5732
                                                      )
LAUREL CUNNINGHAM and TOWNSHIP                        )
HIGH SCHOOL DISTRICT 211,                             )              Honorable
                                                      )              Diane Shelley,
                       Defendants-Appellees.          )              Judge Presiding.


JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justice Pucinski concurred in the judgment and opinion.
Presiding Justice Mason dissented in the judgment and opinion.

                                              OPINION


¶1     Plaintiff Evan Barr filed a personal injury complaint against defendants Laurel

Cunningham and Township High School District 211, alleging willful and wanton misconduct

for failing to provide protective eyewear during a floor hockey game that resulted in Barr's eye

injury. The trial court granted defendants' motion for a directed verdict, finding that Barr had

failed to present evidence of willful and wanton conduct sufficient to overcome defendants'

immunity under section 3-108 of the Local Governmental and Governmental Employees Tort

Immunity Act (the Act) (745 ILCS 10/3-108 (West 2010)). The court rejected, however,

defendants' alternative contention that discretionary immunity applied under section 2-201 of the

Act (745 ILCS 10/2-201 (West 2010)). Barr now appeals. We reverse and remand for a new trial.
No. 1-15-0437


¶2                                     BACKGROUND

¶3     On June 3, 2010, 15-year-old Barr participated in a floor hockey game with 11 other

students in a physical education class taught by Cunningham at James B. Conant High School.

During the game, the hockey ball (used in lieu of a hockey puck) bounced up off another player's

stick and hit Barr in the eye, causing him injury.

¶4     Barr filed suit against Cunningham and District 211 alleging that Cunningham's failure to

require students to wear available safety goggles constituted willful and wanton conduct for

which District 211 was also liable as Cunningham's employer. Defendants denied these

allegations in their answer, and also raised affirmative defenses under sections 2-201 and 3-

108(a) of the Act (745 ILCS 10/2-201, 3-108 (West 2010). Specifically, defendants argued that

pursuant to section 2-201 they were absolutely immune from liability because Cunningham's acts

were discretionary, or, alternatively, that they were immune from supervisory liability under

section 3-108(a) because their conduct was neither willful nor wanton.

¶5     The parties conducted discovery depositions of Barr and Cunningham, as well as David

Peña, the department chair of physical education at Conant High School, and John Kane, the

athletic director at the high school. Following the close of discovery, the parties filed cross-

motions for summary judgment. Barr's motion argued that neither section 2-201 nor section 3-

108 of the Act immunized defendants from liability as a matter of law, while defendants

countered that the opposite was true. The trial court denied both motions, stating "genuine issues

of material fact exist for the trier of fact to decide whether the acts were discretionary and rise to

[the] level of willful and wanton conduct."

¶6     The parties proceeded to a jury trial. Prior to June 3, 2010, Barr had played floor hockey

in Cunningham's physical education class approximately 8 to 10 times. Cunningham prohibited



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No. 1-15-0437


high-sticking, fighting, and checking during floor hockey, but despite those rules, Barr had

witnessed the ball fly above students' waists during play. Barr was unaware that goggles were

available for his use.

¶7     June 3, 2010 was a "heart rate day," during which students were required to keep their

heart rate at a target level for a specified amount of time. When space was available,

Cunningham offered a limited number of students the opportunity to play floor hockey on heart

rate days, given that she had taught floor hockey as a unit in the beginning of the spring

semester.

¶8     The students played hockey with a squishy "safety" ball that flattened when stepped on,

and plastic rather than wooden sticks. Cunningham also limited games to 12 players due to the

space constraints and the increased potential for injury if more students participated. Also to

prevent injury, Cunningham banned high-sticking, fighting, checking, and lifting the ball with a

stick. If she observed students violating these rules, she would pull them from the game.

¶9     Cunningham acknowledged that goggles were available for students' use and were kept in

a bin with the hockey balls in the equipment closet. However, according to Peña, the goggles

were not a "hockey specific piece of equipment" and could be used "for anything that we play."

Nevertheless, Cunningham admitted that she could have required the use of goggles for floor

hockey; but she was unsure if she had enough goggles for all the students who played that day.

Moreover, she was unaware of any rule or regulation requiring the use of goggles during floor

hockey. As to the possibility of injury, she testified that none of her students had ever been hit in

the face with a ball or a stick despite the fact that the ball occasionally bounced in the air.




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No. 1-15-0437


¶ 10     Finally, while Cunningham's department chair provided her a list of units to teach, she,

and not her supervisors, devised the method of teaching those units. Likewise, she alone was

responsible for making and enforcing rules for each sport.

¶ 11     Peña and Kane corroborated Cunningham's testimony that she had discretion as to how to

teach her class. As department chair of physical education, Peña did not provide guidelines to

teachers on how to teach sports such as floor hockey. Although Kane would evaluate and

discipline teachers, he depended on them "to run their classes in a way that they think is the

best."

¶ 12     Following the conclusion of Barr's case-in-chief, defendants moved for a directed verdict,

arguing that the evidence conclusively established that Cunningham was immune from liability

under the Act and that she had not acted willfully or wantonly. After both parties rested, the trial

court heard argument on defendants' motion. The court disagreed that defendants had

discretionary immunity under section 2-201, but agreed that Barr had failed to prove willful and

wanton conduct as a matter of law, and, therefore, defendants were immune from liability under

section 3-108(a) of the Act. Based on this finding, the court granted a directed verdict in favor of

defendants. Barr timely appealed.

¶ 13                                        ANALYSIS

¶ 14                                A. Section 3-108 Immunity

¶ 15     Section 3-108 of the Act immunizes local public entities and their employees from

liability for injury caused by a failure to supervise an activity on public property unless their

failure to provide supervision rises to the level of willful and wanton conduct. 745 ILCS 10/3-

108(a) (West 2010). The Act defines willful and wanton conduct, in relevant part, as a course of




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No. 1-15-0437


action that demonstrates "an utter indifference to or conscious disregard for the safety of others

or their property." 745 ILCS 10/1-210 (West 2010).

¶ 16   Defendants challenge what they characterize as Barr's "less stringent" definition of

willful and wanton conduct taken from Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994).

According to defendants, Ziarko's common law definition of willful and wanton conduct, failure

after knowledge of impending danger to exercise ordinary care to prevent the danger (id. at 274),

was superseded by the statutory definition in section 1-210 of the Act. See Tagliere v. Western

Springs Park District, 408 Ill. App. 3d 235, 243 (2011). To the extent that these definitions are

inconsistent, and it is far from clear that they are (see Harris v. Thompson, 2012 IL 112525, ¶ 41

(statutory definition is "entirely consistent" with "long-standing case law" on willful and wanton

conduct)), Barr cites Ziarko only for the proposition that willful and wanton conduct exists on a

continuum (Ziarko, 161 Ill. 2d at 275-76); he ultimately agrees with defendants that the

overarching issue was whether "Cunningham acted with conscious disregard for the safety of

others." Thus, both parties agree that defendants' actions should be measured against the Act's

definition.

¶ 17   Ordinarily, the issue of whether conduct is willful and wanton is a question of fact for the

jury (Stehlik v. Village of Orland Park, 2012 IL App (1st) 091278, ¶ 34), but it may be

determined by the trial court on a motion for directed verdict where all of the evidence, viewed

in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no

contrary verdict could stand (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)).

At oral argument, Barr argued that pursuant to this standard, he should have been permitted to

proceed to the jury if he adduced some evidence to support his cause of action. But Pedrick

requires more than "some slight evidence" in support of the nonmoving party's argument; rather,



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No. 1-15-0437


there must be a "factual dispute[] of some substance" before a party is entitled to turn his case to

the jury. Id. at 504-05. With this principle in mind, we turn to the merits of Barr's claim.

¶ 18   Initially, Barr contends that the trial court's denial of defendants' motion for summary

judgment necessarily required the denial of defendants' motion for directed verdict, given that the

same evidence underlay both motions. We disagree. The standards for summary judgment and

directed verdict are not identical. Kitsch v. Goode, 48 Ill. App. 3d 260, 270 (1977). Summary

judgment is appropriate if the pleadings, depositions, and admissions on file reveal no genuine

issue of material fact (735 ILCS 5/2-1005(c) (West 2010)), while a directed verdict should be

granted if "there is a total failure or lack of evidence to prove any necessary element of the

plaintiff's case" (Perfetti v. Marion County, 2013 IL App (5th) 110489, ¶ 15 (citing Lawlor v.

North American Corp. of Illinois, 2012 IL 112530, ¶ 37)). As such, it is not necessarily

inconsistent for a court to deny summary judgment but, after having heard all of the evidence

adduced during plaintiff's case-in-chief, grant a directed verdict on the same issue. See Kitsch, 48

Ill. App. 3d at 270 (no error where trial court denied summary judgment but granted directed

verdict notwithstanding the similarity of evidence underlying the two motions). We review the

trial court's grant of a motion for directed verdict de novo. Benford v. Everett Commons, LLC,

2014 IL App (1st) 130314, ¶ 28.

¶ 19   Barr contends that viewed in the light most favorable to him, the evidence demonstrated

that Cunningham consciously disregarded the safety of her students when she did not require

them to wear goggles during floor hockey despite knowing that the ball (1) would occasionally

pop up off the ground and (2) had the potential to hit students in the face. But the failure to take

every conceivable precaution to avert danger does not amount to willful and wanton conduct.

Instead, when evaluating a defendant's conduct, courts ask whether the defendant has taken any



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No. 1-15-0437


action to mitigate danger. For example, in Poelker v. Warrensburg-Latham Community Unit

School District No. 11, 251 Ill. App. 3d 270, 274 (1993), the plaintiff was injured at a track and

field meet when, during warm-ups, another student's discus hit him in the head. The court

reasoned that because defendants implemented several rules for the students' safety, such as

strictly limiting where and when students could throw the discus, the failure to take the

additional step of having an adult exclusively supervising the discus warm-ups was not willful

and wanton misconduct. Id. at 278; see also Bielema v. River Bend Community School District

No. 2, 2013 IL App (3d) 120808, ¶ 19 (finding no willful and wanton conduct where the coach

assigned to guard Gatorade spill on gymnasium floor turned away to engage in conversation,

because defendant had taken "some action" to remedy danger spill posed). In other words,

merely because a defendant could have done more to ensure safety, it does not follow that their

conduct was willful and wanton. Lynch v. Board of Education of Collinsville Community Unit

School District No. 10, 82 Ill. 2d 415, 430 (1980) ("insufficient precautions" for protection of

football players "does not demonstrate an utter and conscious disregard" for their safety).

¶ 20   Here, defendants took several steps to ensure the safety of students who played floor

hockey. For example, the students played with modified equipment in the form of a squishy

"safety ball" and plastic sticks, as opposed to a traditional hockey puck and wooden sticks.

Games were limited to 12 players due to the confined space. Cunningham also banned certain

tactics particularly likely to cause injury, such as high-sticking, checking, tripping, and lifting the

ball with the stick. Cunningham did not testify, however, that she believed these measures would

prevent the ball from reaching a player's eyes. Thus, a jury could find Cunningham did nothing

to mitigate this particular danger.




                                                  7
No. 1-15-0437


¶ 21   Cunningham testified that she decided not to require the use of the goggles because she

did not believe that a serious injury would occur given the other equipment the students were

using. That being said, Cunningham did not testify that she believed no eye injury whatsoever

would occur. Similarly, Cunningham did not specify what she believed would constitute a

serious injury. This decision making process involves the sort of conduct that a jury could find

amounts to a conscious disregard for the safety of her students.

¶ 22   What further separates this case factually and legally from Lynch and its progeny is the

uncontroverted fact that Cunningham knew that goggles were available for her students playing

floor hockey. Goggles, having no purpose other than to provide protection, could only have been

placed at Cunningham's disposal for that purpose. Additionally, there has been no suggestion that

this safety resource was in use by other students when Cunningham's students were playing floor

hockey. Cf. Poelker, 251 Ill. App. 3d at 274, 278 (finding that where 12 adults were supplied to

supervise 88 children participating in a variety of track and field events, the failure to dedicate

one adult to one particular event did not rise to willful and wanton conduct). As a result, we find

that the trial court should have allowed this case to go to the jury for its consideration, simply

because the conscious decision to forego the use of already-available safety equipment is the sort

of conduct that a jury could find to be willful and wanton.

¶ 23   Cunningham points to the fact that she never saw any of her students get hit in the face

with the safety ball. This ignores her testimony that she was aware that her students would

occasionally lift the ball with their hockey sticks and that she knew that the ball could hurt a

student if it hit the child's face. We also reject defendants' suggestion that they could only face

liability for willful and wanton conduct in this factual scenario if there were evidence of a prior

injury to a floor hockey player's eye with the use of a safety ball. We find absolutely no



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No. 1-15-0437


precedent that would require that sort of specific notice in order to be exposed to liability under a

theory of willful and wanton misconduct. Willful and wanton conduct involves failure to take

reasonable precautions despite having notice that "substantial danger was involved." Miller v.

General Motors Corp., 207 Ill. App. 3d 148, 161 (1990) (quoting Hering v. Hilton, 12 Ill. 2d

559, 564 (1958)). We recognize that willful and wanton conduct requires "foreknowledge of

specific and probable harm." Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877, ¶

79. At trial, plaintiff presented sufficient evidence of a conscious disregard for the safety of the

students playing floor hockey. This evidence may not be the most compelling or dramatic

presentation possible, but we simply cannot say that this evidence so overwhelmingly favors

defendants that a verdict in plaintiff's favor could never stand.

¶ 24   In so holding, we agree with plaintiff that the decision in Hadley v. Witt Unit School

District 66, 123 Ill. App. 3d 19 (1984) supports his claim for willful and wanton misconduct. In

Hadley, the defendant shop teacher had assigned his class a woodworking project, but four

students were instead hammering scrap metal through a hole in an anvil. Id. at 20. The teacher

told them to stop, but did not require them to wear the safety goggles he had previously said

were to be used during dangerous activities. Id. The teacher then left the students unsupervised

and the boys resumed hammering, at which point a metal chip flew into the plaintiff's eye. Id.

This court held that there was a question of fact as to whether the teacher's conduct was willful

and wanton (id. at 23): the teacher clearly had knowledge of the substantial danger of the activity

given that he ordered the boys to stop and previously instructed that goggles were required for

such work. In light of his knowledge that substantial danger was involved, his failure to ensure

the students were supervised and/or wearing goggles was evidence of willful and wanton

conduct.



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No. 1-15-0437


¶ 25    Similarly, in this case, Cunningham was fully aware that safety goggles were already

available, as they were stored in the same shoe box as the safety balls. Additionally, Cunningham

testified that the ball occasionally bounced in the air. Barr also testified that even with

Cunningham's implemented safety precautions, Barr had seen the ball fly above students' waists.

Cunningham's failure to apprehend a potentially dangerous situation exacerbated the inherent

risks of this athletic activity. Since we find that a jury could conclude that these judgment calls

were willful and wanton, the trial court erred in granting defendants' motion for directed verdict

on this issue.

¶ 26                                 B. Section 2-201 Immunity

¶ 27    Notwithstanding our determination, defendants argue in the alternative that the circuit

court properly entered a directed verdict because they were immune from liability under section

2-201 of the Act. That statute applies to even willful and wanton conduct. Hascall v. Williams,

2013 IL App (4th) 121131, ¶ 31.

        "Except as otherwise provided by Statute, a public employee serving in a position

        involving the determination of policy or the exercise of discretion is not liable for an

        injury resulting from his act or omission in determining policy when acting in the

        exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 2010).

Although section 2-201 requires that the employee hold either a position involving policy

determinations or a position involving the exercise of discretion, this section requires that the act

or omission occur both in determining policy and exercising discretion. Harinek v. 161 North

Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). Policy decisions are those that require

balancing competing interests and making a judgment call regarding what solution will best




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No. 1-15-0437


serve those interests. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill.

2d 466, 472 (2001).

¶ 28    Even if Cunningham held the type of position required by section 2-201 and exercised

discretion in declining to require the students to wear goggles, the record does not show that this

constituted a policy decision within the meaning of the statute. First, a jury could find that the

school, rather than Cunningham, promulgated a policy regarding the use of goggles during floor

hockey: not only did the school purchase the goggles, but they were kept with the hockey

equipment. Although Cunningham testified she was not aware of any such rule, and Peña

testified that Cunningham had discretion in managing her classroom, a jury would not be

required to believe self-serving testimony that the school purchased goggles only for them to

remain untouched in the equipment closet containing other hockey equipment. Cf. Arteman v.

Clinton Community School District No. 15, 198 Ill. 2d 475, 486-87 (2002) (finding the decision

not to provide safety equipment was a discretionary policy determination where the district

considered the cost and availability of equipment, the number of students involved, the students'

various skill levels and the district's resources).

¶ 29    More importantly, no evidence whatsoever indicated that Cunningham balanced

competing interests and made a judgment call regarding what solution would best serve those

interests in deciding not to require students to wear goggles. While Cunningham testified that she

was unsure whether she had enough goggles for the students, she did not testify that she checked

to confirm this or that an insufficient amount of goggles impacted her decision. Accordingly, the

circuit court correctly found that defendants were not entitled to immunity under section 2-201.

¶ 30                                    CONCLUSION




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No. 1-15-0437


¶ 31   For the foregoing reasons, the jury could have found that Cunningham's misconduct was

willful and wanton, notwithstanding that the jury could have also found otherwise. In light of the

Pedrick standard, we reverse and remand for a new trial on the merits of Barr's claim. In light of

our determination that the evidence did not demonstrate that Cunningham's omission resulted

from a policy determination, defendants are not immune from Barr's claim under section 2-201.

¶ 32   Reversed and remanded.

¶ 33   PRESIDING JUSTICE MASON, dissenting.

¶ 34   The evidence presented during Barr's case-in-chief did not raise a substantial factual

dispute as to whether defendants' conduct was willful and wanton. Accordingly, the trial court

correctly directed a verdict in defendants' favor. I, therefore, respectfully dissent from the

majority's decision to remand for a new trial.

¶ 35   Cunningham articulated the reason for her decision not to require goggles in response to a

question regarding whether the responsibility for the decision belonged to her or Barr: "I guess I

don't feel like[ ] – that decision needed to be made based on the equipment we had. I feel like

the equipment that we had, the safety ball, … the light ball, the plastic floor hockey stick, those

things, I thought were safe enough to – so that he wouldn’t – students wouldn't have to wear the

goggles either." Later, on cross-examination, she was asked explicitly why she did not mandate

the use of goggles, and responded "I thought the equipment that we had was safe. I didn't think

that an eye injury that was serious would even happen with the equipment that we had."

¶ 36   The evidence reveals that Cunningham's decision was premised on her belief that the

modifications she had made to the game, in the form of (i) limiting the number of players, (ii)

using a squishy safety ball and plastic sticks, and (iii) prohibiting (and enforcing the prohibition

against) dangerous conduct such as high-sticking, tripping and checking, were sufficient to



                                                 12
No. 1-15-0437


protect the students from any injury, not just eye injuries. By definition, this conduct cannot be

willful and wanton, as Cunningham's decision was made with the students' safety in mind.

Instead, this is a quintessential example of a teacher taking, at worst, "insufficient precautions"

for her students' protection; and our supreme court has determined that such failure does not, as a

matter of law, amount to willful and wanton misconduct (Lynch, 82 Ill. 2d at 430 ("The evidence

does not demonstrate an utter and conscious disregard for the safety of the [students], simply

insufficient precautions for their protection.")). Although the majority concedes that "the failure

to take every conceivable precaution to avert danger does not amount to willful and wanton

conduct" (supra ¶ 19), this is exactly what it demands of defendants in finding that Barr's

evidence presented a "factual dispute[ ] of some substance" (Pedrick, 37 Ill. 2d at 505).

¶ 37   I am unpersuaded by the majority's attempt to distinguish Lynch and its progeny by

pointing out that Cunningham did not require students to use "already-available safety

equipment." Supra ¶ 22. After all, in Poelker, there were 12 adults present at the track meet

(Poelker, 251 Ill. App. 3d at 278), and the decision not to assign one to exclusively supervise the

discus warm-ups can likewise be considered a failure to take advantage of "already-available"

safety precautions. Nevertheless, in Poelker, this court, relying on Lynch, correctly affirmed the

directed verdict in favor of defendants on the issue of willful and wanton conduct. Id. Here,

while reasonable minds might differ as to whether Cunningham was negligent in failing to

require students to wear goggles, there is absolutely no basis to conclude that she acted willfully

in an "utter indifference to or conscious disregard of" her students' safety. 745 ILCS 10/1-210

(West 2010).

¶ 38   The majority also rejects the significance of the fact that defendants were unaware of any

prior injuries during floor hockey. But while there is no precedent explicitly holding that a



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No. 1-15-0437


defendant is required to have specific knowledge of prior injuries in order to be exposed to

liability under a theory of willful and wanton misconduct, courts have held that the absence of

prior injuries is relevant to a determination of whether a defendant's conduct was willful and

wanton. See, e.g., Pomrehn v. Crete-Monee High School District, 101 Ill. App. 3d 331, 335

(1981) (where injury resulted to member of school softball team left unsupervised immediately

prior to start of practice, lack of supervision did not amount to willful and wanton misconduct as

matter of law in part because "no evidence of prior problems or hazards" with team members);

Jackson v. Chicago Board of Education, 192 Ill. App. 3d 1093, 1100 (1989) (lack of supervision

in educably mentally handicapped classroom not willful and wanton misconduct because school

had no knowledge of prior behavior problems by student who threw chalkboard clip and injured

fellow classmate). Particularly in light of the lack of any incidents on the numerous prior

occasions that Cunningham's students, including Barr, had played floor hockey, the notion that

she should have anticipated the injury that occurred approaches a strict liability standard.

¶ 39   If an eye injury from a squishy safety ball during a supervised floor hockey game played

with plastic sticks can represent a "specific and probable harm" (Choice, 2012 IL App (1st)

102877, ¶ 79), it is difficult to imagine any injury that could not be so categorized. Under the

majority's standard, Poelker should have been decided differently. The defendants in that case

instructed students regarding safety during discus warm-ups and recruited adults to supervise

warm-ups to avoid precisely the foreseeable injury that occurred – another person being hit by an

errant discus. Poelker, 251 Ill. App. 3d at 278. But Poelker found that was not enough to

support a finding that defendants were guilty of an utter indifference to or conscious disregard of

students' safety as a result of their failure to assign one of the dozen adult supervisors available to

exclusively monitor the discus warm-ups. Id. But according to the majority's reasoning, Poelker



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No. 1-15-0437


should have gone to the jury. In other words, the majority's decision requires public entities to

take every possible precaution to prevent all injuries, no matter how remote and improbable

those injuries may seem, lest they find themselves liable for willful and wanton conduct.

¶ 40   Because I believe the trial court property directed a verdict in favor of defendants on the

issue of supervisory immunity, I would not reach defendants' alternative argument that they were

also entitled to a directed verdict on the basis of discretionary immunity.

¶ 41   For these reasons, I respectfully dissent.




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