author: Chief Justice MULLARKEY Justice HOBBS,

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Edward HARDRICK, Defendant-Appellee.
    No. 02SA67.
    Supreme Court of Colorado, En Banc.
    Sept. 16, 2002.

      Frank J. Daniels, District Attorney, Vincent J. Felletter, Jr., Deputy District Attorney, Grand Junction, Colorado, Attorneys for Plaintiff-Appellant.
    David S. Kaplan, Colorado State Public Defender, David G. Eisner, Deputy State Public Defender, Grand Junction, Colorado, Attorneys for Defendanb-Appellee.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution asks us to reverse a trial court order suppressing evidence seized from the defendant Edward Hardrick. While officers were searching a residence and arresting its occupants, the defendant knocked on the door. After inviting the defendant into the residence and identifying themselves as police, the officers asked the defendant to remove his hands from his pockets. The defendant kept one hand in his pocket and then began to turn away from the officers. Fearing that the defendant was reaching for a weapon concealed in his pocket, an officer grabbed the defendant’s wrist. After the officer pulled his hand from his pocket, the defendant threw down two baggies of methamphetamine.

The trial court granted the defendant’s motion to suppress the methamphetamine, holding that the officer lacked the reasonable suspicion necessary to justify grabbing the defendant’s wrist. We reverse. We find that the strong government interest in officer and citizen safety justifies a police request that a person show his hands when that person walks into an arrest or search scene. If the person refuses to comply or makes any other furtive gesture, a limited seizure aimed solely at neutralizing any threat to officer or citizen safety is justified.

I. Facts

Around 6:30 p.m. on an August evening, five members of the Grand Valley Joint Drug Task Force went to a residence for a “knock and talk.” The officers did not have a search warrant for the address but had linked two men to the address. The men had previously fled from a car in which a pound of suspected methamphetamine and a large quantity of stereo equipment was found. A woman opened the door and a strong smell of marijuana emerged. The officers asked to speak to a resident and identified themselves as police. The woman shut and locked the door. A man, Todd Lee, then opened the door. Again, the officers smelled marijuana. The officers decided to enter the residence and Lee attempted to block the officers’ entry. After pushing past Lee, the officers asked him if others were in the house. He told the officers that only two women and some children were there. The officers then found another man who was hiding, two women, several children, marijuana, and suspected methamphetamine. Lee was arrested for obstructing government operations.

A few minutes later, two men arrived at the residence and were admitted. An officer noticed a bulge in one of the men’s pockets and patted him down. A marijuana pipe was found.

Shortly thereafter, two more men arrived — the defendant, Edward Hardrick, and his companion, Richard Espino. Espino knocked on the door. An officer opened the door and invited the men to enter the residence. At this point, Hardrick had either one or both of his hands in his pockets. Once the men were inside, two of the officers identified themselves as law enforcement officers. Detective Kramer then ordered Har-drick to remove his hands from his pockets. Hardrick kept one hand in his pocket, clenched in a fist. The trial court notes that Detective Kramer and Hardrick have differing versions as to what happened next. The detective contends that Hardrick turned away from him toward another officer, that he grabbed the wrist of Hardrick’s clenched hand, and that Hardrick then pulled his hand out of his pocket and threw two baggies of methamphetamine down an adjacent hallway. Hardrick contends that the detective yanked his hand out of the pocket.

Hardrick was handcuffed and arrested for possession of a schedule II controlled substance and tampering with physical evidence. Hardrick moved to suppress the methamphetamine, contending that its discovery was a result of an illegal search and seizure. Specifically, Hardrick contends that the detective lacked the requisite reasonable suspicion to order Hardrick to remove his hands and to subsequently grab his wrist. The trial court agreed. It held that Hardrick’s mere presence in a crime scene does not give rise to reasonable suspicion. It further held that the atmosphere into which Hardrick walked was not a “pervasive dangerous atmosphere” and that Hardrick’s “refusal to remove his hand from his pocket contributes nothing towards the existence of reasonable suspicion.” We reverse the trial court’s suppression of the methamphetamine.

II. Analysis

In reviewing a trial court’s suppression order we defer to a trial court’s factual findings but review its conclusions of law de novo. People v. Heilman, 62 P.3d 224, 227 (Colo.2002). Here, we conclude that the trial court’s findings of fact are adequately supported by the record. We reject, however, the trial court’s legal conclusion that the officer’s search of Hardrick was violative of Fourth Amendment principles.

As the United States Supreme Court established in Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an investigatory stop may be employed when an officer has less than probable cause. “Reasonable suspicion” is all that is required to stop and question a suspect or to pat him down in a search for weapons. People v. Smith, 13 P.3d 300, 304 (Colo.2000). Although the level of suspicion required for an investigative stop or pat-down is less than that needed for an arrest, it still must be judged against the reasonableness standard of the Fourth Amendment. Ten% 392 U.S. at 20, 88 S.Ct. 1868. In order to assess reasonableness, a court must identify the government interest allegedly justifying the frisk and balance this against the level of intrusion. Id. at 21, 88 S.Ct. 1868.

An officer may conduct an investigatory stop for questioning if (1) there is an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to occur; (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion is reasonably related to its purpose. Smith, 13 P.3d at 306.

In this case the second prong — whether the purpose of the intrusion is reasonable — is not at issue. We have repeatedly stressed that a police intrusion based on officer safety concerns is reasonable. See People v. Martinez, 801 P.2d 542, 544 (Colo.1990); Smith, 13 P.3d at 307; People v. Melgosa, 753 P.2d 221, 225-26 (Colo.1988); see also Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding it “too plain for argument” that concern for officer safety is “both legitimate and weighty”). Hardrick contends, however, that the officer lacked reasonable suspicion to stop and frisk him and that the scope of the search exceeded the permissible bounds.

A. The Frisk Was Justified

We first look to whether Hardrick’s frisk was justified. To justify a stop, an officer must establish that “specific and artic-ulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. It is well established in Colorado that when an officer believes someone may be armed and potentially dangerous, a pat-down search for weapons is appropriate. See, e.g., People v. Jackson, 948 P.2d 506, 507 (Colo.1997); Martinez, 801 P.2d at 544. In our 1990 decision of Martinez, we approved of a stop in circumstances similar to the ones here.

In Martinez, officers, who were executing a search warrant, found cocaine, handguns, rifles, shotguns, and knives in a Lakewood residence. While the search was in progress, Martinez drove up to the home and walked to the front door. Before Martinez could enter the home, an officer drew his gun and ordered the defendant to stop, raise his hands, and drop to his knees. Martinez began to follow the order but then made a sudden movement with his hand toward his pocket. He was again ordered to raise his hands and was then handcuffed. Id. at 543. This court noted that under the circumstances, the stop was justified:

The record indicates that [the officer] was in the house pursuant to a “no-knock” search warrant and that a substantial amount of drugs and weapons were present. Additionally, he was presented with the scenario of an unidentified person approaching the house. He could not possibly know whether this individual was armed and dangerous without performing a pat-down search. While [the officer] had no reasonable suspicion that the defendant was involved in any crime, we conclude that under the circumstances, with drugs and weapons present in the house, [the officer] was justified in making an investigatory stop of the defendant.

Id. at 544.

Hardrick attempts to distinguish Martinez from the current ease. He notes that the officers had already found weapons at the home when Martinez arrived, but here no weapons were found. Hardrick identifies additional differences: although the officers observed Martinez walk up to the residence, Hardrick and his companion knocked on the apartment door; Martinez made a sudden move toward his pocket, but Hardrick already had his hand in his pocket. We find all but the first of Hardrick’s proffered distinctions insignificant. Noticing a visitor before he reaches the front door as compared to after he knocks on the door does not provide any more or less certainty as to his purpose there or to the degree of danger. Similarly, refusing to remove a hand from a pocket does not seem any less disconcerting than reaching toward a pocket. Each raises concerns for officer safety.

We do agree, however, that a significant difference between the scenario in Martinez and the one before us is the presence of weapons in Martinez and the absence of weapons here. Certainly, safety concerns are more acute when officers have already found a number of weapons in a home and an unidentified person enters. This difference, however, is not dispositive. All that is required is a reasonable, articulable suspicion that officer safety may be compromised. See Jackson, 948 P.2d at 507-08 (holding that a pat-down search of a passenger is justified when an officer stops a car for a traffic infraction and a passenger in that car makes the furtive gesture of pulling his coat from the back seat of the car onto his lap).

We find that the circumstances of this case, taken as a whole, justify the officer’s stop of Hardrick. First, although no weapons were found at the scene, drugs were found, thus increasing the risk of violence. See Michigan v. Summers, 452 U.S. 692, 702-703, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)(noting that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation”). Second, the occupants of the house were not cooperative. This is a significant factor in determining the danger of an unknown, possible compatriot appearing on the scene. Third, Hardrick did not comply with the officer’s attempts to ensure that he was not a safety threat. The trial court found that he refused to comply with the officer’s requests for him to remove his hands from his pockets. Under these circumstances, a limited stop was justified. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868.

When there is an ongoing search or arrest and a third party voluntarily arrives at the scene, it is unreasonable to ask an officer to simply send the interloper away from the immediate area and hope that he is not setting himself up for an ambush. It is equally unreasonable for the officer to allow the third party into the volatile situation without insuring that the party is not armed. See Smith, 13 P.3d at 307 (holding that when a second car pulled up and stopped behind a police officer presently engaged in the traffic stop of a stolen car, the officer reasonably stopped and searched the second car to secure his own safety). The stop here was appropriate, and is quite distinguishable from a situation where an innocent passerby inadvertently happens onto a crime scene in public open space or where the police actively follow and approach an individual on a public street. See Outlaw v. People, 17 P.3d 150, 153-54 (Colo.2001) (finding that the police lacked reasonable suspicion to stop a man who was walking down a public street with his hand closed in a fist).

B. The Scope of the Intrusion Was Proper

Hardrick also argues that even if the stop was justified, the scope of the frisk in this case was unreasonable. We disagree. As mentioned above, in order to comport with the federal and Colorado search and seizure provisions, not only must a stop be justified, but the scope of the intrusion must be reasonable. In the current case, Hardrick refused to remove his hand from his pocket. This, coupled with the other facts of this case, provided sufficient justification for the officer to respond by grabbing Hardrick’s wrist to prevent Hardrick from using a weapon concealed in his pocket. The trial court did not determine whether the officer pulled Hardrick’s hand out or whether Hardrick did so. We find that even if the officer pulled his hand out, the officer’s actions were justified by the circumstances.

As the United States Supreme Court has noted, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In the current ease, the officers were confronted with a stressful arrest and search situation in which the occupants of the house had already lied to the police and where the officers had already found drugs, encountered resistance, and discovered a suspect hiding in a small utility room. When a man with his hands in his pockets entered the scene and would not comply with officer orders to show his hands, it was reasonable for the officer to grab Hardrick’s hand. Accord Martinez, 801 P.2d at 544-45 (finding that officer safety concerns justify ordering a suspect at gun point to drop to his knees and subsequently handcuffing him); Reyes v. U.S., 758 A.2d 35, 38-39 (D.C.2000)(holding that, when the defendant refused repeated requests to remove his hand from his pocket, officer safety concerns justified grabbing the defendant, pulling him over to the police cruiser and forcing him to remove his hand from his pocket and open his hand).

Moreover, the scope of this search did not exceed that necessary to ensure officer safety. When a search is justified by officer safety concerns, it must be limited to a search for weapons, and cannot be expanded to look for evidence. See Terry, 392 U.S. at 29, 88 S.Ct. 1868; Martinez, 801 P.2d at 544. Accordingly, in Martinez, when a search that was justified by a legitimate concern for officer safety ended with an officer opening a small pouch filled with amphetamine, we held that the search had exceeded a reasonable scope because “no reasonable person could believe that the pouch was a weapon or that it contained a weapon.” Id. at 545. The current case is not one in which an officer uses the pretext of a weapons search to search for other evidence. Rather, he simply asked Hardriek to show his hands and when Hardriek refused to do so, grabbed his hand for his own safety. Once Hardriek threw packets of drugs down the hallway, they were then in plain view and the officers appropriately seized them. See Melgosa, 753 P.2d at 226.

In sum, we conclude that any time an officer is engaged in a valid search or arrest and a third party inserts himself into the situation, the officer may ask the interloper to show his hands. If the individual refuses to do so, or makes any other furtive gesture, such conduct raises a reasonable suspicion that officer safety and the safety of others may be compromised. Accordingly, it is consistent with the Fourth Amendment and Article 2, Section 7 of the Colorado Constitution to briefly detain the suspect in order to defuse any danger.

The trial court’s suppression order is reversed, and the case remanded.

Justice HOBBS dissents.

Justice HOBBS,

dissenting:

I respectfully dissent. In my view, the trial court correctly applied Fourth Amendment principles and our case precedent to the facts of this police-citizen encounter. The trial court found that officers had secured the crime scene and no articulated danger to public safety had presented itself or justified police seizure of Hardriek.

The Majority posits the existence of drugs in the house, then associates drugs with violence, then ascribes the initial non-cooperation of persons inside the house to Hardriek, then concludes that the police were justified — having drawn Hardriek into the net of their criminal investigation — in requiring him to show hands in order to secure their safety.

However, the facts demonstrate that the police threw their investigative net over Har-driek from the time of his arrival at the house. That the police were casting the investigative net as far as they could stretch it is clear from the facts the trial court relied on for suppression of the evidence against Hardriek. Having secured the premises and found no weapons present, the police, prior to Hardrick’s arrival, admitted two persons, one of whom they frisked, discovering drug paraphernalia. Shortly thereafter, Hardrick arrived at the residence with a companion. The trial court’s findings of fact describe what happened next:

Espino walked to the door and Defendant [Hardrick] followed him, intending to accompany him inside. When Espino knocked on the door, Detective Craig Tyer of the Task Force opened it and invited them in. Espino hesitated and Detective Tyler again invited them in, telling them there was a party going on inside. Espino entered and Defendant followed him.

Thus, instead of turning Hardrick away at the threshold, or soliciting his cooperation in avoiding intrusion upon their investigation, the police actually lured Hardrick and his reluctant companion across the threshold by an invitation to party. The police did this with no apparent purpose other than to search for drugs or drug paraphernalia, as they had searched a prior-arriving person.

The police did not request Hardrick’s cooperation or voluntary consent for a search of his person before issuing the show hands order to Hardrick inside the house. Dressed in plain clothes and not identifying themselves as officers until after they invited Hardrick into the house, the officers’ investigative purpose operated throughout this encounter, without reasonable suspicion that Hardrick was a participant in the crime they were investigating within the premises. The trial court made the following findings regarding what occurred after Hardrick crossed over into the house:

After Espino and Defendant entered, Detectives Frank Kramer and Douglas Nor-cross identified themselves as law enforcement officers. Defendant already had one or both of his hands in his pants pockets. Detective Kramer ordered him to take his hands out of his pockets. Defendant partially complied at most but kept one of his hands in his pocket, clenched in a fist, and, according to Detective Kramer, turned partly away from him and toward another detective. Detective Kramer then grabbed Defendant’s wrist above the hand still in his pocket. At this point, Defendant’s hand came out of his pocket with two baggies of methamphetamine in it, which were propelled down the adjacent hallway. Detective Kramer testified that Defendant removed his hand from his pocket himself; Defendant testified that Detective Kramer pulled it out. In either case, it is clear that Defendant did not remove his hand from his pocket voluntarily but because Detective Kramer had ordered him to do so.

In my view, the trial court correctly applied our precedent to these circumstances. Police-citizen encounters are of three different types: (1) arrests, (2) investigative stops or detentions, and (3) consensual interviews or encounters. People v. Heilman, 52 P.3d 224, 227 (Colo.2002); People v. Jackson 39 P.3d 1174, 1179 (Colo.2002). In Heilman, we held that an officer’s command to “show your hands,” directed at an occupant of a parked van effected a seizure because the circumstances did not create a reasonable suspicion of criminal activity. Id. at 228. Reasonable people would not feel free to disobey an order to “raise their hands to plain view” when directed at them by an armed police officer. Id. at 229.

The holding of Heilman is consistent with the generally applicable rule that police orders, instead of requests for cooperation, usually effectuate a seizure of the person to whom the order is directed. See Jackson, 39 P.3d at 1184 (identifying the demand/request distinction as an important factor in determining whether a police-citizen contact is a seizure); People v. Melton, 910 P.2d 672, 677 (Colo.1996) (no seizure where, inter alia, police “asked rather than demanded” defendant’s name and address); Wayne R. La-Fave, Search and Seizure § 9.3(a) at 100-08 (3d ed.1996) (distinguishing between requests and orders, and indicating that the latter effectuate a seizure).

In Jackson, the police stopped a car on reasonable suspicion that the driver committed a traffic infraction. 39 P.3d at 1177. We held that the police unconstitutionally seized a passenger in the car when the police temporarily confiscated the passenger’s identification without reasonable suspicion. Id. at 1188-90. In so holding, we recognized that even if the police have sufficient reasonable suspicion to search the driver of a car, separate reasonable suspicion is required to perform an investigative stop of the passenger. Thus, Jackson recognized that a person’s mere presence at the scene of a crime or search is not of itself sufficient to justify a search or seizure of that person.

There are many circumstances where a person might inadvertently happen on a crime scene investigation in a public open space, private business, or at a person’s home, as here. A person’s arrival at such a scene is no indicator of criminal activity or per se justification for a weapons search of him or her. The Majority’s discussion concedes this. See Maj. Op. at 269 (reasonable suspicion “that officer safety and the safety of others may be compromised” exists when a person “inserts himself into the situation” and the person refuses to show hands or makes a furtive gesture).

Likewise, a person’s choice to turn away from the scene of a police investigation is not grounds for reasonable suspicion. In Outlaw v. People, 17 P.3d 150, 157 (Colo.2001), we said “when a police officer approaches an individual in a public place and seeks to ask him questions, the individual may ignore the officer and proceed on his way.” See also People v. Padgett, 932 P.2d 810, 814 (Colo.1997) (“An individual’s attempt to avoid coming into contact with a police officer does not, without more, justify an investigative detention of the individual.”).

Nor does reasonable suspicion exist solely because a person makes a “furtive gesture.” Heilman, 52 P.3d at 229; Outlaiv, 17 P.3d at 157. For example, Outlaw had his hand cupped and he was walking away from a circumstance that the police suspected to involve drug dealing, but they lacked reasonable suspicion for this hunch. The police wanted to see what Outlaw was cupping in his hand. We held that the police officers could not turn Outlaw from his course of walking away with his hand cupped, unless they had reasonable suspicion that he was committing a crime. See Outlaw, 17 P.3d at 159.

As in Outlaw, the police here did not have reasonable suspicion that Hardrick was engaging in criminal activity. The Majority’s discussion concedes this point also. See, e.g., Maj. Op. at 267 (relying on officer safety concerns, rather than reasonable suspicion of criminal activity, as the basis for this seizure). A furtive gesture is “too ambiguous, standing alone, to constitute the basis for an investigatory stop.” Heilman, 52 P.3d at 229. While the police might have had a hunch that Hardrick was engaged in criminal activity, a mere hunch is insufficient to create reasonable suspicion. E.g. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Haley, 41 P.3d 666, 674 (Colo.2001); People v. H.J., 931 P.2d 1177, 1180 n. 5 (Colo.1997) (“Reasonable suspicion falls below probable cause, but above a mere inarticulate hunch.”).

The Majority identifies three factors that it believes justified the search of Hardrick: the police found drugs in the residence shortly before Hardrick arrived there, the occupants of the house were uncooperative with the police, and Hardrick did not comply with the police officer’s attempts to ensure that he was not a safety threat.

None of these factors create reasonable suspicion. Hardrick’s arrival at a house where others had drugs therein does not create reasonable suspicion. As we held in People v. Carillo-Montes, 796 P.2d 970 (Colo.1990), “[t]he fact that a person keeps cocaine at a residence is simply insufficient to raise a reasonable suspicion that everyone who approaches that residence ... [is] in some way involved in a transaction related to the cocaine.” Id. at 974.

The fact that occupants of the house were uncooperative with police also fails to create reasonable suspicion that Hardrick was engaged in criminal activity or that he posed a risk to officer safety. There is simply no inferential link between Hardrick’s behavior and the behavior of others before Hardrick arrived. Moreover, by the time that Har-drick arrived, the situation in the house was under officer control. In the words of the trial court’s suppression order: “Once Defendant and Espino arrived ... the situation was under the control of law enforcement, so much so that one officer left to seek a search warrant.” What is more, the trial court found that the situation in the house was not apparently dangerous. The police did not find any weapons. The police had already arrested one particularly uncooperative occupant of the house and taken him to jail. A number of police were conducting the investigation and had secured the premises.

The trial court found and concluded that Hardrick’s encounter with the police became a seizure of Hardrick when one of the officers “ordered him to remove his hand from his pocket and then grabbed his wrist when he did not comply.” The thread on which the Majority hangs its judgment to justify this seizure is police safety. This thread is too thin to support the net of criminal investigation the police threw over Hardrick. Particularly telling is the fact that the police admitted four people into the house without identifying themselves as officers or seeking the voluntary assistance of these citizens in avoiding intrusion into the scene of the investigation. Adding persons to the crime scene increases rather than decreases the burden of officers to secure the scene; the police added four persons to the circle of those in the house for the apparent purpose of investigating them.

The police safety cases on which the Majority relies differ significantly from this case. People v. Smith, 13 P.3d 300 (Colo.2000) involved a traffic stop of a stolen car at 2:50 a.m. Id. at 303. During the stop, the police observed the occupant of the stopped car making a cell phone call. Id. Shortly thereafter, a Suburban inexplicably pulled up behind the police car and left its headlights on, preventing the police from seeing into the carl Id. We held that the police had authority to contact and restrain the driver of the Suburban in order to protect their safety. Id. at 305.

In People v. Garcia, 11 P.3d 449 (Colo.2000), we justified the handcuffing of Garcia and his detention in the patrol car on the circumstances of a domestic disturbance at night when the police responded to a report of men and women yelling and screaming at the residence. Id. at 454. The police did not know how many people were involved or if they were armed. Id. Garcia answered the door and stepped outside to talk with the officers. Id. at 451. As the police spoke with Garcia, they noticed a drug pipe at his feet. Id. They then detained him in the patrol car while they continued their investigation. Id.

Here the trial court found that Hardrick had his hand in his pocket before the plainclothes officers identified themselves as police officers: “Indeed, the evidence indicates that Defendant did not put his hands in his pockets only after he entered the residence and recognized the presence of law enforcement but beforehand.” The trial court then distinguished this circumstance from others in which a person makes a potentially threatening gesture in reaction to the police, thereby triggering a protective police response.

Hardrick had his hand in his pocket while he crossed into the house, thinking he was going to a party. He had no apparent reason -to be reaching for a weapon or for putting his hand in his pocket to conceal anything. We defer to the trial court’s findings of fact, if the evidence supports them. See People v. D.F., 933 P.2d 9, 14 (Colo.1997). Under these circumstances, the officers had no reason to believe that Hardrick constituted a threat to them.

In Smith, we underscored the importance of the circumstances in determining whether a reasonable police officer would have recognized “the potential danger in the situation and conducted a protective search in order to secure his safety.” 13 P.3d at 307. The police here lacked the circumstances showing “a reasonable nexus” based on articulable facts for the intrusion upon Hardrick. Garcia, 11 P.3d at 454; see also Smith, 13 P.3d at 305.

In my view the Majority misplaces reliance on People v. Martinez, 801 P.2d 542 (Colo.1990). There, the police found drugs and a substantial number of weapons in the house. Id. at 543. There was reasonable concern for officer safety. Our cases, such as Smith, 13 P.3d 300, and Garcia, 11 P.3d 449, demonstrate that invocation of the officer safety rationale for restraint of a citizen requires more justification than existed in this case.

In sum, the trial court found that there were no dangerous circumstances present when the police searched Hardrick. The police were in control of the situation, and could have avoided contact with Hardrick by turning him away from the door. Instead, the police lured Hardrick and his companion into the residence by telling them that there was “a party going on inside.” The facts show that the police wanted Hardrick in the house as part of their drug investigation, so they took charge of the situation to effectuate this purpose. They seized Hardrick without reasonable suspicion. The trial court correctly suppressed the drug evidence that the police discovered as a result of then-conduct.

Accordingly, I would uphold the suppression order and respectfully dissent.

      . We note that our conclusion here is consistent with those of other jurisdictions. See, e.g., Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (noting that the "weighty interest in officer safety” justifies ordering a passenger out of a stopped car even if the car was stopped because of the driver's infraction); U.S. v. Michelletti, 13 F.3d 838, 842 (5th Cir.1994)(holding that a frisk for weapons was reasonable when officers were investigating suspicious behavior behind a bar and the defendant walked out of the bar door onto the scene with a beer in his left hand and his right hand in his pocket); People v. Glaser, 11 Cal.4th 354, 45 Cal.Rptr.2d 425, 902 P.2d 729, 737 (1995)(hold-ing that officers are justified in ordering, at gunpoint, a visitor to a residence about to be searched to get down on the ground and subsequently handcuff him in order to determine the visitor's connection with the residence and ensure officer safety); People v. Roach, 15 Cal.App.3d 628, 632, 93 Cal.Rptr. 354 (Cal.Ct.App.l971)(upholding a pat-down search of an individual who knocked on the door of a residence that was being searched when lysergic acid (LSD) and marijuana were found prior to his arrival); Commonwealth v. Fraser, 410 Mass. 541, 573 N.E.2d 979, 983 (1991)(fmding that a pat-down search of a man in a high crime neighborhood, who bent down as if picking something up, and approached the officer with his hands in his pockets comported with the Fourth Amendment); State v. Dennis, 113 N.J.Super. 292, 273 A.2d 612, 615 (1971)(holding that when a suspect's boyfriend approached the police inquiring about his girlfriend and he had his hand in his pocket, a subsequent stop and frisk was justified by officer safety concerns); State v. Serrano, 14 Wash.App. 462, 544 P.2d 101, 106 (1975)(hold-ing that the Terry rationale authorizes an officer to grab a subject's hand, concealed suspiciously in his coat pocket or behind his back and characterizing such officer conduct as "not a search, but rather an officer's reflexive conduct in potential self-defense”). But see U.S. v. Rembert, 838 F.Supp. 1336, 1339-40 (D.Minn.1993)(finding that an officer lacked reasonable suspicion to conduct a pat-down search of a man who knocked on the door during tire search of a residence).


source: Caselaw Access Project

author: OPALA, J.

license: Public Domain

text:
    2002 OK 76
    Tom IGLEHART and Brenda Iglehart, husband and wife, Plaintiffs/Appellants, v. BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, Oklahoma, and Verdigris Valley Electric Cooperative, Defendants/Appellees, Ed Hutchinson and Shirley Hutchinson, husband and wife, Defendants.
    No. 95,585.
    Supreme Court of Oklahoma.
    Oct. 1, 2002.

      Larry L. Oliver, Larry L. Oliver & Associates, P.C., Tulsa, OK, for Appellant Brenda Iglehart.
    Bill Shaw, Shaw, Crutchfield & Shaw, Claremore, OK, for Appellant Tom Iglehart.
    Brian E. Dittrich, Karla M. Rogers, Whit-ten, Nelson, McGuire, Wood, Terry, Roselius & Dittrich, Tulsa, OK, for Appellee Verdigris Valley Electric Cooperative.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, J.

¶ 1 The dispositive issue presented on cer-tiorari is whether a utility company owes a duty of care to motorists on roadways adjacent to the utility company’s power lines when it is foreseeable that negligently maintaining trees underneath its lines could pose a road hazard to traveling motorists. We answer the question in the affirmative and hold that the Court of Civil Appeals erred in affirming the trial court’s summary judgment for Utility Company.

I

THE ANATOMY OF LITIGATION

¶ 2 This is a negligence action arising from an automobile accident. On 5 April 1997 Brenda Iglehart (plaintiff or Mrs. Iglehart) was driving east in Rogers County on county road EW 39 and failed to stop where that road intersected county road NS 418. Traffic on NS 418 had the right-of-way. As she crossed the intersection, she was broadsided by a car traveling south on NS 418. Mrs. Iglehart and her husband, who joined her to press his own claim for loss of consortium (collectively called plaintiffs), allege that a large white pine tree located approximately thirty-three (33) feet west of a stop sign on the southwest corner of the intersection obstructed Mrs. Iglehart’s view of the sign, and that a proximate cause of the accident was her inability to see the sign.

¶ 3 Among the other defendants, plaintiffs sued the Verdigris Valley Electric Coopera-five (Utility Company) which owns the easement where the tree is located. Plaintiffs contend Utility Company negligently maintained the tree by “topping” it (cutting off the top) in order to keep the tree limbs from interfering with Utility Company’s electric lines passing above the tree. By so doing, plaintiffs allege, Utility Company caused the tree to grow laterally and more densely, obscuring the stop sign in a foreseeable fashion. According to plaintiffs, Utility Company owes a duty of care to motorists traveling on the adjoining roadway, or, in the alternative, at least a duty to warn of a hazardous condition within its control, and that its breach of this duty directly caused plaintiffs’ injuries.

¶ 4 The trial court gave summary judgment to Utility Company as well as to Board of County Commissioners of Rogers County (Board). Plaintiffs brought separate appeals from the adverse summary judgments. The Court of Civil Appeals (COCA) consolidated the appeals and reversed the summary judgment for Board, but upheld that given in favor of Utility Company. COCA held that a utility company does not owe a duty of care to travelers on roads adjacent to its power lines which are under its maintenance.' For this view COCA relies on cases from the Oregon and Texas appellate courts and on the Restatement (Second) of Torts § 363(1).

¶ 5 We granted certiorari on plaintiffs’ petition for review of the summary judgment for Utility Company (95,586).

II

SUMMARY JUDGMENT AND THE STANDARD FOR ITS REVIEW

¶ 6 Summary process — a special pretrial procedural track pursued with the aid of acceptable probative substitutes — is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary process is applied where neither the material facts nor any inferences that may be drawn from undisputed facts are in dispute, and the law favors the movant’s claim or liability-defeating defense. To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary adjudication.

¶ 7 Oklahoma’s summary adjudication process is similar, but not identical, to that followed in the federal judicial system. In Oklahoma, the focus of summary process is not on facts a plaintiff might be able to prove at trial (ie., the legal sufficiency of evidence that could be adduced), but rather on whether the evidentiary material, viewed as a whole, (a) shows undisputed facts on some or all material issues and whether such facts (b) support but a single inference that favors the movant’s quest for relief.

¶ 8 Summary relief issues stand before us for de novo examination. All facts and inferences must be viewed in the light most favorable to the nonmovant. Just as nisi prius courts are called upon to do, so also appellate tribunals bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant. Only if the court should conclude that there is no material fact in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.

III

UTILITY COMPANIES OWE A DUTY OF CARE TO TRAVELING MOTORISTS WHO FORESEEABLY MAY BE INJURED BY NEGLIGENCE IN MAINTAINING THEIR UTILITY LINES

¶ 9 To establish negligence liability for an injury, plaintiffs must prove that (1) defendants owed them a duty to protect them from injury, (2) defendants breached that duty, and (3) defendants’ breach was a proximate cause of plaintiffs’ injuries. The burden is not cast upon plaintiffs to establish that defendants were negligent in order to escape defendants’ motion for summary judgment. Rather, to avoid trial for negligence, defendants must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to plaintiffs, no disputed material facts exist as to any material issues and that the law favors defendants. Utility Company contends that (1) no duty existed and that (2) if a duty existed, the company did not breach it, and that (3) its actions were not a proximate cause of plaintiffs’ injuries.

A.

The Utility’s Duty of Care

¶ 10 The threshold question for negligence suits is whether a defendant owes a plaintiff a duty of care. We recognize the traditional common-law rule that whenever one person is by circumstances placed in such a position with regard to another, that, if he (she) did not use ordinary care and skill in his (her) own conduct, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Among a number of factors used to determine the existence of a duty of care, the most important consideration is foreseeability. Generally a “defendant owes a duty of care to all persons who are foreseeably. endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.” Foreseeability establishes a “zone of risk,” which is to say that it forms a basis for assessing whether the conduct “creates a generalized and foreseeable risk of harming others.”

¶ 11 The question of whether a duty is owed by a defendant is one of law; a breach of that duty is a question of fact for the trier. We hold that a utility company indeed owes a duty of care to traveling motorists on adjoining roads when its substandard maintenance of trees could foreseeably cause danger to the public. The reasoning expressed by the Oregon Supreme Court in Slogowski v. Lyness (as well as by the Pennsylvania Superior Court in Beury v. Hicks ) is persuasive here. In Slogoioski the court recognized that it was potentially foreseeable to a utility company that a tree it maintained could cause a hazardous condition to motorists on an adjacent roadway. The court reasoned that once having undertaken the task of trimming and inspecting trees within its easement, a party must act reasonably in the exercise of that task. In Beury the court upheld liability imposed upon a power company for failing reasonably to maintain trees along a highway next to the company’s power lines.

IV

THERE ARE DISPUTED ISSUES OF MATERIAL FACT AS TO UTILITY COMPANY’S BREACH OF ITS DUTY OF CARE TO TRAVELING MOTORISTS WHO FORESEEABLY MAY BE INJURED AND THE PROXIMATE CAUSATION OF THE ACCIDENT; WHENEVER DISPUTED FACTS STAND TENDERED, SUMMARY ADJUDICATION IS INAPPROPRIATE

A.

Disputed Issue of Fact As To Foreseeability Of The Injuries

¶ 12 Plaintiffs have raised a disputed issue of fact as to the foreseeability of the injuries suffered by them in a manner sufficient to avoid summary process. According to the affidavit of plaintiffs’ expert witness, James R. Morgan, the white pine tree in question

“has been ‘topped.’ The main tree trunk has been cutoff [sic] in the upper quadrant of the tree. Once this occurs, the upward growth is halted. The tree growth then occurs (a) by increasing density; and (b) by increased limb growth.”

Mr. Morgan’s affidavit goes on to state that these consequences are

“particularly true for this type of pine tree. This information is commonly known to those who cut trees. The ‘topped’ tree must grow somehow as it matures with age. If it cannot grow upward, it grows outward and in density. It is common knowledge that Pine [sic] trees, when topped, increase in density.”

¶ 13 Utility Company challenges the certainty with which Mr. Morgan may make such statements as to this particular tree, noting that he had not seen the tree before it was topped. The record reveals no Utility Company’s challenge to this affidavit. When one fails in summary process timely to challenge any aspect of an evidentiary substitute, one’s objection is waived and the unob-jected-to materials will be deemed to have been properly included for the court’s consideration. Plaintiffs direct us to another expert witness, William Pickhart, whose affidavit makes essentially the same causal linkage between topping a tree and its increased density, noting that such growth is a foreseeable consequence of the topping. While withholding ultimate judgment on the probative effect of these expert witnesses’ materials, at this stage of summary process review, we must view facts in the light most favorable to plaintiffs. Mindful of this rule, we hold that — given the proximity of the tree to the stop sign and the common-sense notion that without a visible stop sign, an intersection, such as that here in question, poses an obvious hazard — plaintiffs raise a disputed issue of material fact as to the foreseeability of the accident arising from the action and/or inaction of Utility Company. Foreseeability must hence be left for a jury evaluation.

¶ 14 In sum, it is undisputed that defendant Utility Company “topped” the tree in question, but did not otherwise trim it, and that no warning was given to traveling motorists. The extent to which the tree obscured or obstructed the stop sign from the view of motorists on EW 39 tenders a disputed issue for the trier’s determination. It is for a jury to decide whether topping, but failing to trim the tree laterally or to warn motorists of the obstruction caused by the tree in issue, is a breach of the duty to which we hold the defending Utility Company.

B.

A Disputed Issue Of Material Fact Exists As To Proximate Causation

¶ 15 Oklahoma law defines proximate cause as “the efficient cause which sets in motion the chain of circumstances leading to the injury.” Generally, the proximate cause of an injury in a negligence case is an issue of fact for the jury. It becomes a question of law for the court only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury. According to plaintiffs’ expert witnesses, the defendant’s actions reasonably may be found to provide a direct causal link to blocking the view of the stop sign and, thus, to the accident causing plaintiffs’ injuries. We hence hold that proximate cause presents here a disputed issue for the trier of fact.

¶ 16 Because these disputed issues of fact remain unresolved, the summary adjudication for Utility Company was in error. It must now stand reversed.

Y

UTILITY COMPANY’S RELIANCE ON § 11-40KA) OF THE HIGHWAY SAFETY CODE IS MISPLACED

¶ 17 Utility Company attempts to avoid trial by arguing that the terms of § 11-401(A) of the Highway Safety Code required plaintiff to yield the right-of-way to oncoming traffic, regardless of whether “a stop sign is present or visible. ” According to Utility Company, Mrs. Iglehart’s act of negligently entering the intersection without yielding the right of way, as required by § 11-40KA), constitutes a “supervening act of negligence” which insulates it from the legal consequences of topping the tree in question. In other words, because Mrs. Igle-hart was negligent in her driving, Utility Company could not be answerable in law for the accident.

¶ 18 This argument fails to negate the existence of a material fact issue as to the proximate cause of plaintiffs’ injuries. First, Utility Company relies on statutory text not in force on the date of the 5 April 1997 accident. The pertinent language, “whether a stop sign is present or visible,” was added to § 11-401 by a 1997 amendment that became effective 1 November 1997. Second, although both the 1997 version of § 11-401 (A) and that in force on April 5 (47 O.S.Supp.1996 § U^01(A)) required drivers to yield the right of way, their terms addressed solely those circumstances where drivers are crossing roads of higher class order — for example, where a county road intersects a state or federal highway or where a private drive (or a road not maintained by the county or state) intersects a county road. The accident in question occurred at the intersection of roads of equal class order — two county roads.

VI

SUMMARY

¶ 19 A utility company owes a duty of care to traveling motorists who foresee-ably may be injured by its act or omission. Whether the utility exercised a proper degree of care vis-a-vis plaintiffs in the maintenance of the “topped” tree whose dangerous condition should have been anticipated presents a disputed issue of fact. Where material facts are disputed, summary adjudication is improper and cannot stand. The cause must be remanded for a nisi prius resolution of all untried issues tendered (or to be tendered).

¶ 20 On certiorari granted on plaintiffs’ petition, the opinion of the Court of Civil Appeals is vacated only insofar as it relates to the now-reversed summary judgment for Utility Company; the trial court’s summary judgment for Utility Company is reversed and the cause remanded for further proceedings to be consistent with today’s pronouncement.

¶ 21 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, KAUGER, SUMMERS and BOUDREAU, JJ., concur.

¶ 22 WINCHESTER, J., dissents.

      . COCA relied on the Court of Appeals opinion in Slogowski v. Lyness, 131 Or.App. 213, 884 P.2d 566 (1994), which the Oregon Supreme Court vacated (324 Or. 436, 927 P.2d 587 (1996)). For a discussion of the Supreme Court’s pronounce- ■ ment, see Part 111(A) ¶ 11, infra.

      . Felts v. Bluebonnet Electric Cooperative, Inc., 972 S.W.2d 166 (Tx.App.-Austin 1998). COCA cites Felts for the view that (a) utility companies owe only the duty to keep trees and vegetation from interfering with the electric lines and that (b) the right to trim or clear trees to protect the power lines does not create a broader duty to maintain trees within the easement for the protection of the general public traveling on an adjacent road or highway. Felts is factually distinguishable from this case. There, the court decided in favor of the electric utility company because the tree in question was outside the company's easement, not because of a lack of a duty of care.

      .The terms of § 363(1) of the Restatement (Second) of Torts state that possessors of land in non-urban areas bear no liability for injuries resulting from a "natural condition of the land.” Comment (a) to § 840 of the Restatement (Second) of Torts defines “natural condition” as "a condition that is not in any way the result of human activity." While the area surrounding the accident site was admittedly not urban in character, it is undisputed that the tree in question was planted by the landowners and then topped by the utility company. The harm-dealing tree would hence not be considered a "natural condition of the land” within the meaning of §§ 363 and 840.

      . " 'Acceptable probative substitutes’ are those which may be used as 'evidentiary materials' in the summary process of adjudication.” Jackson v. Oklahoma Memorial Hosp., 1995 OK 112, ¶ 15 n. 35, 909 P.2d 765, 773 n. 35. See also Seitsinger v. Dockum Pontiac Inc., 1995 OK 29, ¶ 18, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 926-27.

      . The focus in summary process is not on the facts which might be proven at trial, but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n., 1998 OK 113, ¶ 7, 980 P.2d 109, 112; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶ 8 n. 15, 777 P.2d 932, 936 n. 15.

      . Polymer, supra note 6 at ¶ 8, at 113.

      . Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776, 781.

      . Russell, supra note 8, at ¶ 7, n. 7, at 497, 111 S.Ct. 1217; compare Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct 1348, 89 L.Ed.2d 538 (1986).

      . Polymer, supra note 6, at V 7, at 112; Hulsey, supra note 6 at ¶ 8 n. 15, at 936 n. 15.

      . An order that grants summary relief, in whole or in part, disposes solely of law questions. It is thus reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.”).

      . Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

      . Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).

      . It is not the purpose of summary process to substitute a trial by affidavit for one by jury, but rather to afford a method of summarily terminating a case (or eliminating from trial some of its issues) when only questions of law remain. Russell, supra note 8, at 503; Bowers v. Wimberly, 1997 OK 24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

      . Dirickson v. Mings, 1996 OK 2, ¶ 7, 910 P.2d 1015, 1018-19.

      . Malson v. Palmer Broadcasting Group, 1997 OK 42, ¶ 12, 936 P.2d 940, 943, citing White v. Wynn, 1985 OK 89, ¶ 10, 708 P.2d 1126, 1129.

      . Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 8, 795 P.2d 516, 518. We note that "[Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law on Torts (3d ed. 1964) at pp. 332-333),” quoted in Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976).

      . See Heaven v. Pender, 11 Q.B.D. 503, 509, 1883 WL 19069 (1883).

      . Wofford, supra note 17, at ¶ 11, at 519 (quoting Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976).

      . Wofford, supra note 17, ¶ 11, at 519.

      . Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 8, 913 P.2d 1318, 1321. See also McCain v. Florida Power Corp., 593 So.2d 500, 502-03 (Fla.1992). "Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Id. at 503.

      . Wofford, supra note 17, at ¶ 22, 795 P.2d at 520.

        .Supra note 2.

      . 227 Pa.Super. 476, 323 A.2d 788 (1974).

      . Slogowski, supra note 2 at 590.

      . Id. at 590, 884 P.2d 566. While Slogowski is not precisely on point (because it deals with a tree that created a hazard by falling onto a roadway rather than obstructing a view of a stop sign) it lends support to the view that electric utility companies owe a duty to persons traveling on roads adjacent to electrical lines reasonably to maintain trees in their care.

      . Supra note 24, at 790. In Beury the plaintiff’s decedent was killed when a tree limb fell upon his automobile. A wrongful death action was brought against the property owners and a utility company based upon negligent inspection. The latter had performed highway maintenance and inspection services on the owners' trees adjoining the power lines for a quarter of a century.

      . Our rationale for imposition of liability is also supported by the common-law rule that a public utility is liable for negligence toward others in performing (or failing to perform) work that is part and parcel of the utility's duty to maintain its facilities. Restatement (Second) of Torts § 428. This duty is nondelegable. In Bouziden v. Alfalfa Coop., Inc., 2000 OK 50, 16 P.3d 450, the court refused to extend nondelegable liability to "all other third parties,” id. at V 22, at 457-58. Today's pronouncement does not contradict Bouziden, but merely notes that, consistently with the terms of Restatement (Second) of Torts § 428, this nondelegable duty extends to foresee-ably injured third parties.

      . Seitsinger, supra note 5 at ¶ 14, at 1080. There is here no properly and timely submitted record-supported objection to either the affiant's qualification for the expert opinion given or to the admissibility of that opinion at trial.

      . Carmichael, supra note 12 at ¶ 2, at 1053.

      . Dirickson, supra note 15, at V 9, at 1018, quoting Thur v. Dunkley, 1970 OK 157, 474 P.2d 403, 405. Proximate cause has also been called "direct cause.” It has been defined in the Oklahoma Uniform Jury Instructions as "a cause which, in the natural and continuous sequence, produces injury and without which the injury would not have happened.” Tomlinson v. Love's Country Stores, Inc., 1993 OK 83, n. 6, 854 P.2d 910, 916.

      . Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 37, 977 P.2d 1040, 1054; Dirickson, supra note 15, citing Tomlinson, supra note 31.

      . Dirickson, supra note 15 at ¶ 9, at 1018, citing Tomlinson, supra note 31 at 916.

      . Where on the judgment’s reversal a cause is remanded, it returns to the trial court as if it had never been decided, save only lor the "settled law” of the case. Seymour v. Swart, 1985 OK 9, ¶¶ 8-9, 695 P.2d 509, 512-513; Russell, supra note 8, at ¶ 35, at 504. By today's remand the parties are relegated to their prejudgment status.

      .The provisions of 47 O.S.Supp.1997 § 11-401(A) (effective 1 November 1997) were:
      A. The driver of a vehicle on a county road approaching an intersection with a state or federal highway shall, whether a stop sign is present or visible, stop and yield the right-of-way to a vehicle which has entered the intersection or which is so close thereto as to constitute an immediate hazard. The driver of a vehicle on a private drive or any road not maintained by the county or state approaching an intersection with a county road designated as a thoroughfare,, as established by resolution of the board of county commissioners, shall stop and yield the right-of-way to a vehicle which has entered the intersection or which is

        so close to the intersection as to constitute an immediate hazard.

      (emphasis added).

      . The pertinent terms of 47 O.S.Supp.1996 § 11-401(A), the version in effect at the time of the April 5 accident, were:
      A. The driver of a vehicle on a county road approaching an intersection with a state or federal highway shall stop and yield the right-of-way to a vehicle which has entered the intersection or which is so close thereto as to constitute an immediate hazard. The driver of a vehicle on a private drive or any road not maintained by the county or state approaching an intersection with a county road designated as a thoroughfare, as established by resolution of the board of county commissioners, shall stop and yield the right-of-way to a vehicle which has entered the intersection or which is so close to the intersection as to constitute an immediate hazard....
      (emphasis added).
      The provisions of § 11-401 were amended in 1997, 1999 and 2002. None of these amendments affects the controversy before the court.

      . Even if the 1997 version of § 11-401(A) had been in force on the day of the collision in suit, Utility Company’s argument fails to recognize that under the comparative negligence law more than one party could be negligent concurrently. It does not follow that because Mrs. Iglehart failed to stop at an essentially unmarked intersection she would not have stopped at one that was visibly marked.


author: CAROL M. HANSEN, Presiding Judge:

text:
    2002 OK CIV APP 112
    OAKS COUNTRY CLUB, a corporation, Plaintiff/Appellee, v. The FIRST PRESBYTERIAN CHURCH, U.S.A. of Tulsa, Oklahoma and Camp Loughridge, an Oklahoma not for profit corporation, Defendants/Appellants.
    No. 96,669.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 19, 2002.
    Certiorari Denied Nov. 4, 2002.
    John L. Harlan, John L. Harlan & Associates, Sapulpa, Oklahoma, for Plaintifp'Appel-lee.
    Sam T. Allen, TV, Loeffler, Allen & Ham, Sapulpa, Oklahoma, for Defendants/Appellants.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 W.H. Ahrens and Alberta Y. Ahrens owned the SW/4 of Section 4 T18N, R12E, Creek County, Oklahoma. They also owned the SE/4 of Section 5, T18N, R12E, Creek County, Oklahoma. These quarter sections adjoin each other, and were separated by a fence running north/south.

¶ 2 In 1947, the Ahrens conveyed by warranty deed the SW/4 of Section 4, T18N, R12E to Plaintiff, Oaks Country Club. The Ahrens family continued to use the SE/4 of Section 5, T18N, R12E, generally as pastureland. Since the early 1950⅛, Plaintiff has maintained and operated a golf course continuously upon the property conveyed to it by the Ahrens. This was the same golf course operated by Walter Ahrens and his associates from the mid-1920’s to 1947. The west boundary of the 16th fairway runs along the north/south fence separating the SW/4 of Section 4 from the adjoining quarter section of the SE/4 of Section 5.

¶ 3 After Ahrens died in 1959, title to the pastureland was passed to his wife, and after her death, to their heirs. In 1989, Ahrens’ heirs sold the pastureland (SE/4 of Section 5, T18N, R12E) to Defendant, The First Presbyterian Church, U.S.A. of Tulsa, Oklahoma, (Defendant Church). Later, Defendant and Defendant, Camp Loughridge (Defendant Camp), entered into an agreement for Defendant Camp to use the land.

¶ 4 The officers and directors of Defendant Church obtained a survey of the land from a registered land surveyor. The survey showed the fence separating the adjoining quarter sections is not located on the section line but is located on the land Defendant Church purchased in the SE/4 of Section 5. Defendant Church was informed of this encroachment. Neither Defendant Church nor Defendant Camp ever asked Plaintiff to move the fence.

¶ 5 In June 1994, the director of Defendant Camp tore down approximately 200 feet of the fence in order to grade out the baseball diamond on the Camp property near the fence. The director did this without consulting any other member of Defendant Camp, Defendant Church, or an attorney. In September 1994, Plaintiff reconstructed that portion of the removed fence in the original location where it had been since before it purchased its property in 1947. The fence remains there today.

¶ 6 Beginning in the spring of 1995 a director of Defendant Camp and Plaintiffs board of directors and president met to discuss possible extension of the water contract along with discussions régarding the fence. Specifically, Plaintiffs president .suggested the fence be built in a more attractive manner, but would not agree that it should be built on the actual boundary line. They also discussed the possibility of Plaintiff trading other property adjacent to Defendant Camp’s property to compensate for a transfer of the Defendant Camp property inside Plaintiffs fence. At no time did Plaintiffs president dispute the fence was over the Defendant Camp and Church property line. The discussions relating to the water contract and the fence line land trade never came to fruition.

¶ 7 In May 2000, Plaintiff filed this action to determine whether the above-mentioned fence constitutes a “boundary by acquiescence.” On July 11, 2001, following a non-jury trial, the trial court entered a journal entry of judgment. Therein, the trial court made numerous findings of fact. Among other things, the trial court found: “[t]he fence has been open, obvious and visible at all material times;” that when Plaintiff purchased the property from Ahrens, it “was aware or should have been aware of the fence location and resulting encroachment at the time of purchase;” neither Defendant Camp nor Defendant Church “ever asked Plaintiff to move the fence;” that the fence “has been in place, recognized, maintained and acknowledged as the boundary between Plaintiff Oaks Country Club and the Ahrens family from the early 1950’s to at least 1989;” The trial court also found that from the early 1950’s to 1989 is at least 33 years before Defendant Church acquired the land from the Ahrens family. It further found “[t]he requisite period to establish title by adverse possession is 15 years. The fence became the legal boundary long before January 1989.” The trial court concluded that Plaintiff acquired title by adverse possession to the land between the fence and the section line separating Plaintiffs land from Defendant’s land and that neither Defendant Church nor Defendant Camp had any right, title or interest therein. Defendants Church and Camp appeal.

¶ 8 Defendants contend that prescription by adverse possession requires that possession of the property be “exclusive and hostile” to the rights of the record title holder. Because such hostility and exclusiveness did not exist and because there was no such finding in the trial court’s order, the trial court’s decision in granting Plaintiff the property was clearly against the weight of the evidence.

¶ 9 Plaintiff points out that it has contended all along it is entitled to judgment based upon the doctrine of boundary by acquiescence. The element of hostility, necessary for an adverse possession claim, is not required to establish a boundary line by acquiescence. See, Lewis v. Smith, 1940 OK 276,103 P.2d 512. Oklahoma recognizes this doctrine, which "... seems to occupy a middle ground between adverse possession and estoppel in pais.” 69 ALR 1431. The doctrine has also been described as “... one of the most common types of adverse possession.” Rosser and Guse, Adverse Possession in Oklahoma: An Idea Whose Time Has Come and Gone? 72 OBJ 715 (2001).

¶ 10 In Lewis v. Smith, two brothers, Charles and Sam Smith owned two quarter sections. They divided the land — Charles, father of the plaintiff, taking the north tract, and Sam, the remote grantor of the defendant, taking the south tract. They erected a fence on a line running east and west across the half section, and the fence, maintained and repaired by both men and their successors, remained until the litigation. Twenty-seven years after Charles and Sam erected the fence, a survey was made which revealed the fence line did not correspond to the true boundary line dividing the north and south tracts. There was no evidence to indicate whether the fence was built by agreement to be the location of the true boundary or whether the true boundary was known or unknown to Sam or Charles. There was no evidence to indicate whether either of the Smith brothers knew of the mistake, if it was a mistake, instead of a deliberately pitched fence.

¶ 11 The Supreme Court found the following factors were sufficient to establish title by acquiescence: (1) the division of a unit of land; (2) the running of a fence between the divided portions of the unit deviating from the true line as established by government survey; (3) the continued maintenance of the fence for 27 years; and (4) the use by the respective parties of the land lying only on their respective sides of the fence. The Supreme Court held that whether there is a dispute or uncertainty regarding the true boundary is not a prerequisite in establishing a boundary by acquiescence.

¶ 12 In quoting 8 Am.Jur. 802, sec. 80, the Supreme Court stated, “It is well established that if adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time ... usually the time prescribed by the statute of limitations ... they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one.”

¶ 13 In the present case, there is a division of a unit of land owned by Ahrens; there is a fence between the quarter sections which deviates from the true line as established by the 1989 survey; the fence has been in existence since the early 1950’s (with the exception of Defendant Camp director tearing down 200 feet of the fence to grade the ball diamond and Plaintiff reconstructing it three months later); and both Plaintiff and Defendants, and before Defendants, the Ahrens, used the land lying only on their respective sides of the fence. Moreover, there was a mutuality of recognition of and acquiescence in the fence as the boundary.

¶ 14 Plaintiff acquired title by acquiescence to the land lying between the fence and the governmental section line separating Plaintiffs land in the SW/4 of Section 4, T18N, R12E, from Defendants’ land in the SE/4 of Section 5, T18N, R12E, and neither Defendant Church nor Defendant Camp has any right, title or interest therein.

¶ 15 Because an equity decree may be affirmed if it is sustainable on any rational theory and the ultimate conclusion is legally correct, (Bankoff v. Board of Adjustment of Wagoner County, 1994 OK 58, 875 P.2d 1138), the decision of the trial court is AFFIRMED.

ADAMS, J., and MITCHELL, J., concur.

      .In 1952 the Ahrens entered into an agreement with Plaintiff whereby Plaintiff agreed to furnish Ahrens, his agents, tenants, and employees with gas, electricity, and water in connection with the dwellings, buildings, and equipment located on the adjacent pastureland. In consideration, the Ahrens agreed to permit Plaintiff to take water from a lake on Ahrens' pastureland for the purpose of watering the country club grounds, greens and fairways. This contract was continuously renewed and was in effect in 1989, at the time Defendant, First Presbyterian Church, U.S.A. of Tulsa, Oklahoma, purchased Ahrens' pastureland. The contract expired in 1998.

      . Defendant Camp leases the property from Defendant Church.

      . There are three metal ladders along the fence that facilitate traverse over the fence line both ways. These ladders have been in place since sometime in the 1950’s. Members of Plaintiff country club use the ladders to retrieve golf balls on the Defendant Camp/Defendant Church property.

      . Proof of continuous possession for the statutory period of fifteen years is necessary to establish title by acquiescence, prescription, or adverse possession. Kinkade v. Simpson, 1948 OK 186, 197 P.2d 968.


author: BAY MITCHELL, Judge:

text:
    2002 OK CIV APP 117
    Loyd ADAMS, sole proprietor, d/b/a Loyd’s of Kern Painting, Plaintiff/Appellant, v. BAY, LTD., Defendant/Appellee.
    No. 97,539.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 26, 2002.
    Rehearing Denied Aug. 23, 2002.
    Certiorari Denied Nov. 19, 2002.
    Michael R. Warkentin, Norman, OK, for Plaintiff/Appellant.
    Gary C. Rawlinson, John H. Sparks, Norman, OK, for Defendani/Appellee.
   Opinion by

BAY MITCHELL, Judge:

¶ 1 Loyd Adams d/b/a Loyd’s of Kern Painting, Plaintiff/Appellant, seeks review of an order granting Bay, Ltd., Defendant/Ap-pellee’s motion to dismiss. The trial court dismissed Appellant’s action, based on a forum selection clause contained in a “Master Service Agreement” (contract) between the parties. That clause provided that Nueces County, Texas would have venue for any dispute between the parties.

¶2 Appellant is a sole proprietor whose place of business is in McClain County, Oklahoma. Appellant was hired by another contractor, Bay, Ltd., to perform services and provide labor and material on a construction project in Abernathy, Texas. Bay, Ltd.’s place of business is Corpus Christi, Texas, which is in Nueces County. When the construction project was completed Appellant demanded payment, but Appellee refused to pay claiming there were deficiencies in the work done. Appellant brought this action in McClain County, Oklahoma to obtain payment.

¶ 3 Appellee filed a motion to dismiss and alleged that pursuant to their contract the parties had pre-selected the forum. The pertinent contract clause provides:

(29) VENUE AND INTERPRETATION

Venue for any dispute between BAY and SUBCONTRACTOR [Appellant] shall lie exclusively within Nueces County and the provisions of this Agreement shall be interpreted under the laws of the State of Texas. Provisions of this Agreement shall not be interpreted for or against either party based upon the identity of the author.

Appellee also stated it had filed its own action against Appellant in Nueces County, Texas over a different construction project but governed by the same contract.

¶ 4 In objecting to the motion to dismiss, Appellant alleged the contract was outdated and had expired; it was a contract of adhesion which was not negotiated; under Texas law the proper forum was the county where the work was performed or a lien could be filed; Appellee maintains an office in Tulsa, Oklahoma; and it would be a hardship for Appellant to press this claim in Nueces County, Texas. After a hearing, the trial court granted Appellee’s motion to dismiss and in its order stated “the forum selection clause in the Master Service Agreement is enforceable and this case should be dismissed.” The issues before us are whether the contract’s forum selection clause was enforceable and, if not, is venue proper in McClain County, Oklahoma.

¶ 5 The United States Supreme Court has acknowledged that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether. National Equipment Rental, Limited v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). A forum selection clause acts as a stipulation wherein the parties ask the court to give effect to their agreement by declining to exercise its jurisdiction. Absent compelling reasons otherwise, forum selection clauses are enforceable. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 113 L.Ed.2d 622, (1991). See also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972) (party resisting the forum selection clause must “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching”).

¶ 6 The issue of the validity of forum selection clauses has not been specifically decided by the Oklahoma Supreme Court. However, Eads v. Woodmen of the World Insurance, 1989 OK CIV APP 19, 785 P.2d 328, 330-31, contains an historical discussion of forum selection clauses. It traces the evolution from earlier courts’ disapproval of forum selection clauses, which purported to exclude jurisdiction of certain courts, to the law’s current status. The majority of modern jurisdictions now follow the rule that “[f]orum selection clauses are prima facie valid and should be enforced unless they can be shown to be unreasonable under the circumstances of the ease.” Id. at 330, quoting Furry v. First National Monetary Corp., 602 F.Supp. 6, 8 (W.D.Okla.1984). Eads points out that the present trend is to apply a ‘reasonableness’ test in determining whether to enforce such a clause. Id. at 331, citing Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 503 (Alaska 1980). If a contract was not negotiated by the parties, or is the result of overreaching or of the unfair use of unequal bargaining power, or if the forum chosen by the parties would be a seriously inconvenient one for the trial of the action, it may be found invalid. Id. at 331, citing Colonial Leasing Co. v. Pugh Bros. Garage, 735 F.2d 380, 382 (9th Cir.1984) and Restatement (Second) of Conflicts § 80 Comment a. A “form” contract may be evidence of unfair advantage of one party over the other. Eads, at 331, citing Janko v. Outboard Marine Corp., 605 F.Supp. 51, 52 (W.D.Okla.1985).

¶ 7 A party who brings suit in a forum other than the selected forum bears the burden of persuading the court that enforcement of the forum clause' would be unfair or unreasonable. The Bremen v. Zapata Off-Shore Co., supra. Appellant’s affidavit asserts that no bargaining or negotiating occurred concerning the choice of forum provision. However, Appellant worked on several construction jobs for Appellee, some in Texas, and has continued employment with Ap-pellee under the same Agreement. Appellant must show that having trial in the forum selected in the contract will be so gravely difficult and inconvenient that he will be effectively deprived of his day in .court. This he has not done.

¶ 8 The forum selected, Nueces County, Texas, is the home county of Appellee and has a reasonable relationship to the transaction at issue. Further, while Appellant contends he would be seriously inconvenienced by litigating any action in Texas, there is no dispute in the record that Appellant spent lengthy periods of time in Texas completing this job and other jobs. Appellant agreed by the terms of the contract to jurisdiction and venue in Texas. The forum selection clause is not shown to be either unfair or unreasonable. See, Bakhsh, v. Jacrrc Enterprises, Inc., 1995 OK CIV APP 40, 895 P.2d 746, 747. The order of dismissal is affirmed.

¶ 9 AFFIRMED.

HANSEN, P.J., and ADAMS, J., concur.