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Luke v. Deal1/12/2005
Argued November 15, 2004
[ .] While moving snow with a Caterpillar loader at a ranch owned by Jon Deal ("Deal"), Michael Luke ("Michael") struck and punctured a propane tank which resulted in a large explosion. Michael died as a result of the injuries he sustained. Donna Luke, Michael's wife, as the personal representative of Michael's estate (the "estate") sued Deal for wrongful death. The jury found Deal to be negligent. However, the jury also found Michael to be contributorily negligent and that his contributory negligence was more than slight. The estate claims in issue 1 that the trial court erred in failing to instruct the jury that a landowner owes a duty to an invitee to warn of known, concealed dangers. On notice of review, Deal claims in issue 3 that there was insufficient evidence to submit the issue of his negligence to the jury. We reverse issue 1 and affirm issue 3, notice of review.
Facts
[ .] On January 30, 2001, after a heavy snowstorm, Deal's ranch was snowed in to the point where Deal could not feed his cattle. He therefore called Luke Construction to inquire as to whether they could assist him with the snow removal. Deal spoke with Jim Luke (Michael's brother) and was informed that they would be available within the next day or two. Early the following morning, Michael called to inform Deal that he was on his way out to the ranch. He arrived at approximately 8:00 A.M. driving a Caterpillar front-end loader. Jennifer Luke, Michael's daughter who was 18 years-old at the time, followed behind in a pickup truck.
[ .] Before beginning, Michael got out of his loader to talk with Deal. They discussed the areas of the ranch that needed to be cleared and started with the hay yard which was west of the Deal home. Deal used one of his tractors to assist in the snow removal operation. At various times while working in the hay yard Michael and Deal stopped to discuss their progress, at which times Deal also warned Michael of various objects to watch out for including a liquid feed line.
[ .] By early afternoon, they completed their work in the hay yard and moved the snow removal operation to the driveway that leads to Deal's ranch house and the other buildings. Before they began, the two men again discussed how they were going to proceed and then cleared the driveway. Afterwards, they again stopped to talk, this time in front of the red barn. Deal instructed Michael to clear the yard on the south side of the house and then to clear the area directly in front of the red barn. Deal also warned him of a tractor tire and rim that was buried underneath the snow in front of the barn.
[ .] While Michael worked to clear the yard by the house as the two had discussed, Deal was sitting on his tractor with his back to him talking on his cell phone. As Michael was clearing the snow on the west side of the house, the blade of the loader struck and punctured the end of a 1,000-gallon propane tank that had been filled about a month earlier and was completely buried under the snow. The propane gas ignited which resulted in a large explosion.
[ .] Just before the explosion occurred, Deal was getting out of his tractor. Moments later, Michael emerged from the large fire ball. Both Jennifer and Deal rushed to his aid. Michael asked Deal why he did not tell him the propane tank was there, to which Deal did not respond and bowed his head.
[ .] Approximately 50%-70% of Michael's body was severely burned. He died five days later from the injuries. Deal also sustained burn injuries but to a much lesser extent.
[ .] The estate sued Deal and Farmer's Co-op Oil Company ("Farmer's Co-op") for wrongful death. Deal s
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