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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TINYA CHERNEY, Plaintiff, v. NORTH CAROLINA ZOOLOGICAL PARK,
Filed: 7 August 2007
1. Tort Claims Act--second opinion--writ of mandamus
The Industrial Commission's second decision and order denying plaintiff's claim for
personal injuries under the Tort Claims Act was not improper even though plaintiff contends our
Supreme Court ruled in her favor in 2005 and allowed her petition for writ of mandamus in 2006,
because: (1) at the time plaintiff submitted her brief to the Court of Appeals on 20 November
2006, plaintiff's writ of mandamus remained pending before our Supreme Court; and (2) on 14
December 2006, our Supreme Court denied plaintiff's petition for writ of mandamus and stated
the mandate of its 5 May 2005 per curiam opinion was satisfied by the Commission's issuance of
its new decision and order on 28 April 2006.
2. Premises Liability--duty of care--warning of hidden dangers
The Industrial Commission did not fail to apply a premises liability legal standard in an
action seeking to recover damages for personal injuries under the Tort Claims Act based upon
defendant State Zoo's alleged negligence in monitoring a ficus tree, because: (1) the duty to
exercise reasonable care requires that the landowner not unnecessarily expose a lawful visitor to
danger and give warning of hidden hazards of which the landowner has express or implied
knowledge; and (2) plaintiff admits defendant's personnel at all times adequately cared for,
monitored and managed the ficus, and met the applicable standard of care for doing so.
3. Tort Claims Act-_premises liability--findings of fact--sufficiency of evidence
In a case under the Tort Claims Act in which the Industrial Commission denied plaintiff's
claim for injuries received from a falling ficus tree at the State Zoo, the evidence supported
findings by the Commission that cables supporting the tree were checked the day before the
accident and no problems were recorded; the Zoo staff lacked sufficient notice that the ficus tree
could present a hazard to the public; on the day of the accident the tree looked healthy and free
from decay; there were no indications that the tree was diseased or under stress; and the tree had
stood for more than ten years under the protocols then in effect.
Judge WYNN concurring in part and dissenting in part.
Appeal by plaintiff from decision and order entered 28 April
2006 by Commissioner Dianne C. Sellers for the North Carolina
Industrial Commission. Heard in the Court of Appeals 22 May 2007.
Knott, Clark & Berger, L.L.P., by Michael W. Clark, Kenneth R.
Murphy, III, and Joe Thomas Knott, III, for plaintiff-
Attorney General Roy Cooper, by Special Deputy Attorney
General William H. Borden, for defendant-appellee.
Tinya Cherney (plaintiff) appeals from the North Carolina
Industrial Commission's (the Commission) decision and order
entered 28 April 2006, which denied her claim for damages from the
North Carolina Zoological Park (defendant). We affirm.
Plaintiff's claim for damages is before this Court for a
second time. On 7 September 1999, plaintiff filed a claim to
recover damages for personal injuries against defendant pursuant to
the Tort Claims Act, N.C. Gen. Stat. § 143-291, et seq.
Plaintiff's affidavit alleged:
That the injury or property damage occurred in
the following manner: [Plaintiff] was in the
enclosed African Pavilion near the center when
a large ficus tree fell hitting a palm tree.
Both trees then fell on her pinning her to the
floor of the walkway in the African Pavilion.
The impact caused vertigo, broke her right
femur, cracked three ribs, caused compression
fractures to three vertebra (sic) and wrenched
her knee. The injury occurred because the
ficus tree which was indoors had been
permitted to grow too large for its roots or
alternatively had not been properly maintained
to prevent it from becoming unsafe. The ficus
tree was under the exclusive control of
[defendant's] personnel and not subject to
wind or any other natural force.
On 21 December 1999, defendant filed an answer denying
On 13 August 2001, Deputy Commissioner, Richard B. Ford, heard
arguments and received evidence from both parties. On 30 October2001, Deputy Commissioner Ford ordered defendant to pay plaintiff
$500,000.00 in compensatory damages. Defendant appealed to the
On 29 April 2002, the matter came before the Full Commission
for hearing. On 28 July 2003, a majority of the Commission
reversed Deputy Commissioner Ford's recommended opinion and award
and denied plaintiff's claim. Commissioner Bernadine S. Ballance
dissented from the Commission's decision and order.
Plaintiff appealed to this Court. On 14 September 2004, the
matter was initially heard before this Court. On 2 November 2004,
a divided panel of this Court affirmed the Commission's decision
and order denying plaintiff's claim. See Cherney v. N.C.
Zoological Park, 166 N.C. App. 684, 603 S.E.2d 842 (2004) (Timmons-
Goodson, J., dissenting). Plaintiff appealed to our Supreme Court,
and on 5 May 2005, the Court reversed for the reasons stated in
Judge Timmon-Goodson's dissenting opinion in a per curiam opinion.
See Cherney v. N.C. Zoological Park, 359 N.C. 419, 613 S.E.2d 498
On 12 October 2005, plaintiff filed a motion for entry of
award with the Commission. On 28 November 2005, defendant filed a
response to plaintiff's motion with the Commission. On 28 April
2006, the Commission entered a second decision and order denying
plaintiff's claim. The Commission entered its decision and order
without further hearing on the matter or action by either party.
Commissioner Ballance again dissented from the Commission's
decision and order. Plaintiff appeals.
Plaintiff argues: (1) the Commission's second decision and
order giving rise to this appeal should be deemed moot or improper;
(2) the Commission erred by failing to apply a premises-liability
legal standard to defendant's negligence; and (3) the Commission's
findings of fact are not supported by the evidence.
III. Standard of Review
This Court has stated:
Pursuant to [N.C. Gen. Stat. § 143-291(a)],
the Commission has exclusive jurisdiction to
hear claims falling under [The Tort Claims]
Decisions of the Commission . . . under the
Tort Claims Act can only be appealed to this
Court for errors of law . . . under the same
terms and conditions as govern appeals in
ordinary civil actions, and the findings of
fact of the Commission shall be conclusive if
there is any competent evidence to support
them. This is so even if there is evidence
which would support findings to the contrary.
Therefore, when considering an appeal from the
Commission, our Court is limited to two
questions: (1) whether competent evidence
exists to support the Commission's findings of
fact, and (2) whether the Commission's
findings of fact justify its conclusions of
law and decision.
Simmons v. North Carolina DOT, 128 N.C. App. 402, 405-06, 496
S.E.2d 790, 793 (1998) (emphasis supplied) (internal citations and
IV. The Commission's Second Decision and Order
 Plaintiff argues the Commission's second decision and
order is improper because our Supreme Court ruled in her favor in2005 and allowed her Petition for Writ of Mandamus in 2006. We
On 8 May 2006, plaintiff filed a Petition for Writ of Mandamus
with our Supreme Court seeking to end all litigation in this matter
and to require defendant to pay the damages awarded to her by
Deputy Commissioner Ford on 30 October 2001. At the time plaintiff
submitted her brief to this Court on 20 November 2006, plaintiff's
Writ of Mandamus remained pending before our Supreme Court.
On 14 December 2006, our Supreme Court denied plaintiff's
Petition for Writ of Mandamus and stated, the mandate of this
Court's 5 May 2005 per curiam opinion was satisfied by the
[Commission's] issuance of its new Decision and Order on 28 April
2006. Cherney v. N.C. Zoological Park, 361 N.C. 147, 633 S.E.2d
677 (2006). This assignment of error is overruled.
V. Legal Standard
 Plaintiff argues the Commission erred by failing to apply
a premises-liability legal standard to plaintiff's negligence
claim. Plaintiff asserts the issue was not whether defendant's
staff reasonably monitored or otherwise cared for the ficus, but
whether defendant's staff failed to correct or warn its visitors of
the known hidden hazard posed by the ficus. Plaintiff contends the
Commission failed to address defendant's legal duty to warn her of
the known hidden danger of the tree. We disagree.
N.C. Gen. Stat. § 143-291(a) states:
The Industrial Commission shall determine
whether or not each individual claim arose as
a result of the negligence of any officer,
employee, involuntary servant or agent of theState while acting within the scope of his
office, employment, service, agency or
authority, under circumstances where the State
of North Carolina, if a private person, would
be liable to the claimant in accordance with
the laws of North Carolina.
Our Supreme Court has stated:
Under the [Tort Claims] Act, negligence is
determined by the same rules as those
applicable to private parties.
To establish actionable negligence, plaintiff
must show that: (1) defendant failed to
exercise due care in the performance of some
legal duty owed to plaintiff under the
circumstances; and (2) the negligent breach of
such duty was the proximate cause of the
Bolkhir v. North Carolina State Univ., 321 N.C. 706, 709, 365
S.E.2d 898, 900 (1988) (emphasis supplied).
Our Supreme Court eliminated the distinctions between
licensees and invitees in premises-liability cases and stated:
[T]his Court concludes that we should
eliminate the distinction between licensees
and invitees by requiring a standard of
reasonable care toward all lawful visitors.
Adoption of a true negligence standard
eliminates the complex, confusing, and
unpredictable state of premises-liability law
and replaces it with a rule which focuses the
jury's attention upon the pertinent issue of
whether the landowner acted as a reasonable
person would under the circumstances.
In so holding, we note that we do not hold
that owners and occupiers of land are now
insurers of their premises. Moreover, we do
not intend for owners and occupiers of land to
undergo unwarranted burdens in maintaining
their premises. Rather, we impose upon them
only the duty to exercise reasonable care in
the maintenance of their premises for the
protection of lawful visitors.
Nelson v. Freeland, 349 N.C. 615, 631-32, 507 S.E.2d 882, 892
(1998) (Wynn, J.) (emphasis supplied).
Following Nelson, this Court stated the duty to exercise
reasonable care requires that the landowner not unnecessarily
expose a lawful visitor to danger and give warning of hidden
hazards of which the landowner has express or implied knowledge.
Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602,
604, disc. rev. denied, 356 N.C. 297, 570 S.E.2d 498 (2002).
Upon remand, the Commission concluded as a matter of law:
5. The greater weight of the evidence shows
that Ms. Wall's practices and management of
her staff in the care of the ficus benjamina
were reasonable and met or exceeded the
standards for monitoring, record keeping,
pruning, watering, fertilizing, cabling,
syringing and soil mixture in her field.
Plaintiff has failed to prove that either of
the named employees of defendant, Ron Ferguson
and Virginia Wall or the staff at the North
Carolina Zoo breached any applicable standard
of care. The greater weight of the evidence
shows that the actions of the staff at the
North Carolina Zoo in following the standards
and practices of Ms. Wall in the care of the
ficus benjamina were reasonable and met or
exceeded the standards of the field, including
the monitoring, record keeping, pruning,
watering, fertilizing, cabling, syringing and
mixing of the soil. Therefore, plaintiff has
failed to prove negligence and is not entitled
The Commission also found as fact:
18. The greater weight of the evidence
indicates that neither Ms. Wall nor her staff
knew or should have known that the ficus tree
was likely to fall. There is no showing that
Ms. Wall violated any applicable standard of
care in her management of the horticulture
department and supervision of the horticulturestaff. There is no showing that any member of
Ms. Wall's staff violated any applicable
standard of care in the completion of their
duties regarding the care of the ficus.
Plaintiff admits defendant's personnel at all times
adequately cared for, monitored and managed the Ficus, and met the
applicable 'standard of care' for doing so. Plaintiff only argues
the Commission applied the wrong legal standard because it failed
to address defendant's legal duty to warn her of the known hidden
danger of the ficus. Finding of fact numbered 18 is unchallenged,
binding, and clearly shows the Commission properly applied the
legal standards from both Nelson and Bolick. Id. This assignment
of error is overruled.
VI. Findings of Fact
 Plaintiff argues the Commission's findings of fact are not
supported and must be set aside because all of the evidence leads
to the conclusion defendant's negligence was the proximate cause of
her injuries. Plaintiff asserts the unequivocal and uncontroverted
evidence is that defendant had notice of a potentially dangerous
condition on its premises and failed to correct or warn its
visitors. We disagree.
[T]he scope of review on appeal is limited to those issues
presented by assignment of error in the record on appeal. Koufman
v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991). This
Court has stated:
Where findings of fact are challenged on
appeal, each contested finding of fact must be
separately assigned as error, and the failureto do so results in a waiver of the right to
challenge the sufficiency of the evidence to
support the finding. Taylor v. N.C. Dept. of
Transportation, 86 N.C. App. 299, 357 S.E.2d
439 (1987); Concrete Service Corp. v.
Investors Group, Inc., 79 N.C. App. 678, 684,
340 S.E.2d 755, 759-60, cert. denied, 317 N.C.
333, 346 S.E.2d 137 (1986) (finding that the
failure of appellant to except and assign
error separately to each finding or conclusion
that he or she contends is not supported by
the evidence . . . will result in waiver of
the right to challenge the sufficiency of the
evidence to support particular findings of
Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525
S.E.2d 481, 484 (2000) (emphasis supplied). Where no exception is
taken to a finding of fact . . . , the finding is presumed to be
supported by competent evidence and is binding on appeal. Koufman
v. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
As noted, [T]he findings of fact of the Commission shall be
conclusive if there is any competent evidence to support them.
This is so even if there is evidence which would support findings
to the contrary. Simmons, 128 N.C. App. at 405, 496 S.E.2d at
Here, plaintiff has separately and specifically assigned error
to only two of the Commission's findings of fact and argues they
are not supported by any competent evidence:
7. The last recorded check on cables on the
ficus tree were made by experienced staff
members on Friday, July 17, 1998. No problems
were recorded. Ms. Wall learned from a staff
member after the incident involving plaintiff
that one of the cables was a little bit loose,
but the degree of looseness was so minor as to
not warrant recordation, therefore there was
not sufficient notice to the staff that the
ficus benjamina could present a hazard to thepublic and it was not unreasonable to wait
until Monday for the pruning given the
. . . .
11. On July 18, 1998, the multiple stemmed
ficus tree appeared healthy and free from
decay. There were no indications that the
tree was diseased or under stress. It did not
appear to be hazardous and had stood for more
than ten years under the protocols then in
Plaintiff was injured when a ficus tree fell on 18 July 1998
in defendant's indoor African Pavilion. Virginia Wall (Wall),
defendant's curator of horticulture, testified six three-eighths-
inch aircraft cable[s] . . . bolt[ed] into the concrete were used
to aid the tree in staying upright. It was protocol for staff to
inspect the cables monthly for slack, tension, deterioration, and
rust. The cables were replaced and repaired at times. The monthly
checks on the cables were not routinely recorded, unless staff
members discovered what appeared to be a problem.
Wall testified she expected to be notified by staff if there
was a large scale problem or a problem they perceived as being
dangerous. The cables were checked on 17 July 1998, the day
before the accident. No problems were noted by defendant's staff.
Defendant's records stated, 7/17/98 all cables checked. No
problems noted. Wall was informed by a staff member after the
accident one of the cables was a little bit loose. Wall
I have no record of loose cables other than
the incident report, and that was after the
fact. In my opinion, reading old logs - if
[the staff] felt it was a slack cable, theywould have noted that in the daily logs, and
they did not. So it didn't even come up on
their radar that it was a problem.
The tree was scheduled for regular summer pruning on 20 July
1998. The tree had previously been pruned in January 1998. Wall
testified: (1) the top growth on the tree was not an abnormal
amount; (2) the amount of top growth was typical for right before
pruning; and (3) she had no reason to think the tree was going to
fall at this particular time.
Competent evidence in the record also shows: (1) on 18 July
1998, the tree appeared healthy and free from decay; (2) the tree
did not appear to be a problem and had stood for more than ten
years with the maintenance protocols in effect; (3) the cause of
the tree's fall is unknown; and (4) the tree falling was
unforeseeable, unpreventable, and extremely rare.
The Commission's findings of fact are supported by competent
evidence in the record and are conclusive on appeal. Simmons,
128 N.C. App. at 405, 496 S.E.2d at 793. These findings of fact
support the Commission's conclusions of law denying plaintiff's
claims for damages. This assignment of error is overruled.
The Commission's decision and order entered 28 April 2006 is
properly before us. Our Supreme Court denied plaintiff's Petition
for Writ of Mandamus and stated, the mandate of this Court's 5 May
2005 per curiam
opinion was satisfied by the [Commission's]issuance of its new Decision and Order on 28 April 2006. Cherney
361 N.C. at 147, 633 S.E.2d at 677.
The Commission applied the proper premises-liability legal
standard to plaintiff's negligence claim, as shown in finding of
fact numbered 18 and conclusion of law numbered 5. The findings of
fact to which plaintiff assigned error and argued are supported by
competent evidence. These findings of fact support the
Commission's conclusion of law denying plaintiff's claim for
damages. The Commission's decision and order is affirmed.
Judge CALABRIA concurs.
Judge WYNN concurs in part and dissents in part by separate
WYNN, Judge, concurring in part and dissenting in part.
I concur with that portion of the majority's opinion that
finds that the Full Commission's second Opinion and Award in this
case is not moot, and that this appeal is therefore proper.
However, because I find that the Full Commission erred as a matter
of law in its application of premises liability to the facts at
hand, I would reverse and remand the Opinion and Award for further
consideration. I therefore respectfully dissent.
The majority points to the Full Commission's finding that
[t]he greater weight of the evidence indicates that neither Ms.
Wall nor her staff knew or should have known that the ficus tree
was likely to fall[,] and the conclusion that the North CarolinaZoo staff met or exceeded the standards of the field in monitoring
and tending to the ficus tree, to conclude that the Full Commission
properly applied the standard for premises liability. I disagree.
As recognized by the majority, the Tort Claims Act waives
governmental immunity for certain acts of negligence by state
employees, with such negligence . . . determined by the same rules
as those applicable to private parties. Bolkhir v. North Carolina
State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988); see
also N.C. Gen. Stat. § 143-291 (2005). Negligence must be shown by
proving that a defendant state employee or agency failed to
exercise due care in the performance of some legal duty owed to
plaintiff under the circumstances, as well as that the breach of
duty was the proximate cause of the injury. Bolkhir, 321 N.C. at
709, 365 S.E.2d at 900.
In a premises liability case, the duty to exercise reasonable
care requires that the landowner not necessarily expose a lawful
visitor to danger and give warning of hidden hazards of which the
landowner has express or implied knowledge. Bolick v. Bon Worth,
Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc. review
denied, 356 N.C. 297, 570 S.E.2d 498 (2002). Thus, where in a
negligence action a plaintiff must show that the defendant had a
duty to the plaintiff and that the defendant breached that duty,
thereby causing the plaintiff's injuries, see Lavelle v. Schultz,
120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995) (citation
omitted), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996),
a plaintiff in a premises liability action must show that thedefendant owed her a duty, and that the defendant breached that
duty by unnecessarily exposing her to danger and failing to warn
her of hidden hazards of which the landowner has express or
implied knowledge[,] thereby causing her injuries. Bolick, 150
N.C. App. at 430, 562 S.E.2d at 604; see also Nelson v. Freeland,
349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998), reh'g denied, 350
N.C. 108, 533 S.E.2d 467 (1999); Grayson v. High Point Development
Ltd. Partnership, 175 N.C. App. 786, 788-789, 625 S.E.2d 591, 593,
disc. review denied, 360 N.C. 533, 633 S.E.2d 681 (2006). The
reasonableness of a defendant's exercise of care must be judged
against the conduct of a reasonably prudent person under the
circumstances. Lorinovich v. K-Mart Corp., 134 N.C. App. 158,
161, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, 541 S.E.2d
Here, there is no dispute that the North Carolina Zoo owed Ms.
Cherney a duty of reasonable care, see Nelson, 349 N.C. at 631, 507
S.E.2d at 892 ([W]e impose upon [owners and occupiers of land]
only the duty to exercise reasonable care in the maintenance of
their premises for the protection of lawful visitors.), nor that
the falling of a ficus tree in the exclusive control of the Zoo
caused her injuries. The question of liability in this case
instead turns on whether the Zoo breached its duty of reasonable
care to Ms. Cherney by exposing her to danger unnecessarily and
failing to warn of the hidden hazard of the ficus tree - provided
that the Zoo and its employees had either express or impliedknowledge that the tree was, in fact, in danger of falling. See
Bolick, 150 N.C. App. at 430, 562 S.E.2d at 604.
Although the Full Commission found that [t]he greater weight
of the evidence indicates that neither Ms. Wall nor her staff knew
or should have known that the ficus tree was likely to fall[,] the
record contains evidence not only to the contrary, but indeed, I
believe such a finding is completely inconsistent with the evidence
presented to the Full Commission. See Adams v. AVX Corp., 349 N.C.
676, 681, 509 S.E.2d 411, 414 (1998) ([T]he findings of fact of
the Industrial Commission are conclusive on appeal when supported
by competent evidence, even though there be evidence that would
support findings to the contrary. (citation and quotation
omitted)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999);
Rhodes v. Price Bros., Inc., 175 N.C. App. 219, 221, 622 S.E.2d
710, 712 (2005) (findings of fact may be set aside on appeal only
when there is a complete lack of competent evidence to support
them (quotation omitted)).
At the time the ficus tree fell the first time, in 1988, it
was between eighteen and twenty feet tall, with a more compact root
ball; when it fell on Ms. Cherney, it was approximately thirty-four
feet tall. As found by the Full Commission, after it fell the
first time, the tree was replanted, and six, seven-strand 3/8"
cables going in four directions were looped around the tree and
attached to the planter walls. The purpose of the cables was to
aid the tree in keeping it upright and to assist in monitoring the
tree. Additionally, the Full Commission found as fact that thecables on the tree were thereafter checked monthly for slack,
tension and deterioration by the Zoo staff, as well as given a
daily visual inspection for general health, appearance, and special
problems[.] Two of the four cables had snapped when the tree fell
on Ms. Cherney.
The very fact that the tree was cabled to the planter walls
illustrates that the Zoo and its employees had express or implied
knowledge that the tree might fall; if there had been no danger,
then the tree would not have needed to be cabled in such a fashion,
nor would the Zoo employees have needed to monitor it so closely.
Moreover, the Full Commission itself stated that the cables were
used to aid the tree in keeping it upright, suggesting that there
was an implied recognition that the tree might again fall. In
light of these actions, as well as the fact that the tree was in a
shallow concrete planter, growing bigger by the year, and had
previously fallen, the testimony by the Zoo employees that they had
no knowledge that the tree might fall is simply not competent
evidence. The question is not whether the tree was likely to fall,
as addressed by the Full Commission in the finding of fact quoted
by the majority opinion. Rather, the issue is whether a Zoo
visitor such as Ms. Cherney - or one of the tens of thousands of
schoolchildren who pass through the African Pavilion each year -
was unnecessarily exposed to danger and was not warned of a hidden
Given that the Zoo staff was aware of the danger of the tree
falling, both through the previous incident and its ongoingmonitoring and cabling of the tree, I would conclude that the Zoo
had a duty to warn Ms. Cherney and other Zoo visitors of the
possibility that the tree might fall. The Full Commission made no
finding as to any warning sign posted by the Zoo or other
indication that the tree was a hidden hazard, and the record
contains no reference to such a warning. The Zoo staff could also
have moved the tree to a different location, where it would not
have injured visitors even if it fell, or could have pruned it back
even further to ensure that it was not outgrowing its planter.
Hundreds of thousands of people visit the North Carolina Zoo
each year; it is one of our State's most popular and well-
maintained attractions. However, in light of the knowledge of Zoo
staff as to the possible danger posed to the public of the ficus
tree in question, I believe the Zoo employees failed to exercise
the care of a reasonably prudent person under the circumstances by
failing to warn of the hidden hazard here.
Because the Full Commission made findings contrary to logic
and unsupported by competent evidence, I believe the Full
Commission erred as a matter of law in its application of the
premises liability negligence standard. I would therefore reverse
and remand for additional consideration.
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