Concurring:
I join and concur in part III A, Presumed Negligence, of the opinion, but must concur separately as to part II, Foreseeability, and part III, Duty, because although the opinion arrives at the correct result, I believe the duty and foreseeability discussions create confusion in this convoluted and complex area of California law.
I
DUTY
In California “[¡judicial treatment of the concept of ‘duty’ within the negligence context has left a legacy of analytical confusion.” Lopez v. McDonald’s, 193 Cal. App.3d 495, 238 Cal.Rptr. 436 (1987).1 Un*1240fortunately it appears that the district court got caught in this quagmire and incorrectly applied California law as it relates to duty.
We begin with the “general rule ... that all persons have a duty ‘to use ordinary care to prevent others being injured as a result of their conduct____Ballard v. Uribe, 41 Cal.3d 564, 715 P.2d 624, 629, 224 Cal.Rptr. 664, 669 (1986) (quoting Rowland v. Christian, 69 Cal.2d 108, 112, 443 P.2d 561, 70 Cal.Rptr. 97). This policy is expressed in Cal.Civ.Code § 1714(a) which states: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.” See also Preston v. Goldman, 42 Cal.3d 108 (1986), 720 P.2d 476, 481, 227 Cal.Rptr. 817, 822. Thus, as a general proposition of law, California landowners owe a duty of ordinary care to those who are come upon their premises.
However, because the decision that a landowner generally owes a “duty” to those injured on his land is a policy determination, Rowland v. Christian, 69 Cal.2d 108, 112, 443 P.2d 561, 70 Cal.Rptr. 97 (1975), recognized that there are exceptions to that rule2 and a decision not to apply the general rule involves the balancing of a number of policy considerations. The opinion correctly cites these factors as:
“the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”
Preston v. Goldman, 42 Cal.3d 108 (1986), 720 P.2d 476, 481, 227 Cal.Rptr. 817, 822-23 (quoting Rowland v. Christian, 69 Cal.2d 108, 112-113, 443 P.2d 561, 565, 70 Cal.Rptr. 97, 100).3
As the opinion notes, in applying Rowland, some California courts have placed particular emphasis on whether the injury to the plaintiff was foreseeable. However, foreseeability “is but one factor to be weighed____” Moreover, in “this balancing process, foreseeability is an elastic factor. The degree of foreseeability neces*1241sary to warrant the finding of a duty will thus vary from case to case.” Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 126, 695 P.2d 653, 211 Cal.Rptr. 356, 361 (1985). Thus, merely because harm may be foreseeable does “not automatically impose a duty[,]” Clarke v. Hoek, 174 Cal.App.3d 208, 214-15, 219 Cal.Rptr. 845, 849 (1985), and “other policy factors may move the court to decide, as a matter of law, not to accord protection to the particular plaintiff.” 4 Indeed, “[t]his balancing [of Rowland factors] must be conducted anew in each case, based on the factors present in that case.” Gomez v. Ticor, 145 Cal.App.3d 622, 629, 193 Cal.Rptr. 600, 604 (1983). As the opinion states, in different factual settings California courts have either found the existence of a duty or rejected the existence of a duty based on the Rowland factors.
In this case the district court failed to properly apply California law because it’s analysis of whether a “duty” existed rested solely on whether the plaintiff’s actions were foreseeable. The court should have also considered the other six factors set out in Rowland to determine whether the California Supreme Court would impose a duty on the defendant in this kind of situation. In addition, a seventh factor, the status of the plaintiff as a trespasser, may be considered in determining whether such a duty exists.5
My disagreement with the majority opinion is that even though it recognizes and agrees with this analysis, it contradicts itself by overemphasizing the importance of foreseeability with its statement that the “foreseeability of the risk ordinarily gives rise to a duty to reduce or warn of that risk.” While the foreseeability of a risk may indeed be a compelling factor in any given case, the opinion agrees that its importance, as well as the importance of the other seven factors, varies with the facts and circumstances of each case. Thus, the blanket statement that foreseeability ordinarily gives rise to a duty, is simply contrary to California law and unfortunately appears to reaffirm the common misconception that foreseeability equals duty.
II
FORESEEABILITY
I agree with the majority that the district court erred in its finding that the accident was entirely unforeseeable. There was testimony introduced that prior to the accident there were wires dangling from pole *124227 — located just four poles down from the accident site.6 It appears that the government does not dispute that Harmon cut those wires on June 2, but argues that pole 27 could not be easily seen from the road.7 The fact that wires had been visibly removed from the accident area is buttressed by the district court’s finding that fifteen days before the accident Harmon had stolen overhead wires from the same area (the span between poles 20 and 27). Thus, the district court’s finding of fact number 35 that “[tjhere was no evidence of tampering with pole lines which reasonably should have put cognizant employees of the United States on notice that members of the public might enter the facility and climb poles to remove or tamper with conductors!! ]” is clearly erroneous. There was some degree of foreseeability.
Foreseeability is an elastic factor. The district court must determine how important foreseeability is in this particular case, and then balance that factor along with the other Rowland factors to determine whether a duty existed under California law.
. See also Marois v. Royal Investigation & Patrol, Inc., 162 Cal.App.3d 193, 197-99, 208 Cal.Rptr. 384 (1984); Hucko v. City of San Diego, 179 Cal.App.3d 520, 523, 224 Cal.Rptr. 552 (1986).
. "[D]uty is not sacrosanct in itself,” Dillon v. Legg, 68 Cal.2d 728, 734, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), nor is “ ‘duty’ ... an immutable fact of nature," Ballard, 41 Cal.3d 564, 715 P.2d 624, 628, 224 Cal.Rptr. 664 at 669, n. 6, rather, it is " ‘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.’" Dillon v. Legg, 68 Cal.2d 728, 734, 441 P.2d 912, 69 Cal.Rptr. 72, (quoting Prosser, Law of Torts, 332-33 (3rd ed. 1964)); Lopez v. McDonald's, 193 Cal.App.3d 495, 238 Cal.Rptr. 436 (1987); Molsbergen v. United States, 757 F.2d 1016, 1021 (9th Cir.1985) (quoting Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 434, 551 P.2d 334, 342, 131 Cal.Rptr. 14, 22 (1976)). Indeed, whether a duty is owed is "ultimately a question of fairness involving a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Ratona v. County of Los Angeles, 172 Cal.App.3d 53, 61, 218 Cal.Rptr. 19, 23 (1985) (citing Totten v. More Oakland Residential Housing, Inc., 63 Cal.App.3d 538, 545, 134 Cal.Rptr. 29, 34 (1976)). "[I]n determining whether ‘liability1 can be imposed if negligence is proved, the courts are guided by ‘history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.'" Lopez v. McDonald's, 193 Cal.App.3d 495, 238 Cal.Rptr. 436 (1987) (quoting Weirum v. RKO General, Inc., 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36 (1975)); see also Elam v. College Park Hospital, 132 Cal.App.3d 332 at 340 n. 9, 183 Cal.Rptr. 156 (1982).
. See also Becker v. IRM Corp., 38 Cal.3d 454, 698 P.2d 116, 124, 213 Cal.Rptr. 213, 221 (1985); Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 125-26, 695 P.2d 653, 658, 211 Cal.Rptr. 356, 361 (1985); Sun 'N Sand, Inc. v. United California Bank, 21 Cal.3d 671, 582 P.2d 920, 936, 148 Cal.Rptr. 329, 345 (1978); but c.f. Molsbergen v. United States, 757 F.2d 1016, 1021 (9th Cir.1985) (factors somewhat different).
We note that in cases where this analysis precludes liability, "society is not intending to foster unreasonable conduct; rather, other policy interests are seen as being adversely affected if defendants conduct and decisions are subject to judicial scrutiny and sanctions.” Lopez v. McDonald's, 193 Cal.App.3d 495, 238 Cal.Rptr. 436 (1987); Hucko v. City of San Diego, 179 Cal.App.3d 520, 523, 224 Cal.Rptr. 552, 553 (1986).
. Allen v. Toten, 172 Cal.App.3d 1079, 1087, 218 Cal.Rptr. 725, 730 (1985) (foreseeable injury, but other Rowland factors militate against finding the existence of a "duty”); Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49, 59 n. 14, 665 P.2d 947, 953 n. 14, 192 Cal.Rptr. 857, 863 n. 14 (1983); Dillon v. Legg, 68 Cal.2d 728, 739, 441 P.2d 912, 69 Cal.Rptr. 72 (1968); see also Clarke v. Hoek, 174 Cal.App.3d 208, 214-15, 219 Cal.Rptr. 845, 849 (1985); Vandermost v. Alpha Beta Co., 164 Cal.App.3d 771, 779, 210 Cal.Rptr. 613, 618 (1985) (Foreseeability is not coterminous with duty-application of other factors precluded a finding of duty); Forrand v. Foodmaker, Inc., 182 Cal.App.3d 196, 200, 227 Cal.Rptr. 74, 76 (1986) (same).
. As the California Supreme Court stated in Peterson v. San Francisco Comm. College District, 36 Cal.3d 799, 809 n. 5, 685 P.2d 1193, 1198 n. 5, 205 Cal.Rptr. 842, 847 n. 5 (1984), "although we no longer adhere to the rigid classifications of duty based on status, plaintiffs status is relevant under certain circumstances to the question of liability.” See also Mark v. Pacific Gas & Electric Co., 7 Cal.3d 170, 183, 496 P.2d 1276, 1285, 101 Cal.Rptr. 908, 917 (1972) ("plaintiffs status as a trespasser should be only one of several factors to be weighed by the trier of fact to determine liability”); Rowland v. Christian, 69 Cal.2d 108, 119, 443 P.2d 561, 70 Cal. 97 (1968) (“Although the plaintiffs status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative”); see also Alva v. Cook, 49 Cal.App.3d 899, 903, 123 Cal.Rptr. 166 (1975); Beauchamp v. Los Gatos Golf Course, 273 Cal.App.2d 20, 25, 77 Cal.Rptr. 914 (1969).
Other courts have also considered either the improper or illegal nature of a plaintiffs activities as a factor in determining whether those actions were "foreseeable.” Bisetti v. United Refrigeration Corp., 174 Cal.App.3d 643, 651 n. 2, 220 Cal.Rptr. 209, 213 n. 2 (1985) (factor of "foreseeability of harm” is extremely remote, given the illegal nature of plaintiffs activities); Petrine v. Pacific Gas and Electric Co., 186 Cal.App.2d 442, 9 Cal.Rptr. 45, 49 (1960) (Electric Power line owner need not anticipate every circumstance under which someone may make contact with wire causing injury — plaintiffs breach of the California civil code in working to close to power lines made the accident unforeseeable) (pre-Rowland).
. When shown a photograph of pole 27 (picture A-62), Mr. Nerison testified that there were three high voltage wires dangling from the top of the pole (2 RT 957:24 through 2 RT 958:5). Also, as the government states in its brief, Captain Pringle testified that when he viewed the accident area the day after the accident, there were wires hanging from pole 27. Gov’t. Brief p. 14 (citing RT 695 and Exhibit A-62). The government has not taken the position that the wires from pole 27 were cut the night of the accident.
. In its brief, the government states:
Exhibits A-46B and A-54 show lines dangling from poles 20 and 27. Henderson probably did not see the high voltage lines from Poles 25, 26, and 27 were missing because they were not in the foreground of his field of view. Because of the locations of Poles 26 and 27, the presence or absence of the high voltage conductors would not have been evident, except on focused scrutiny, to anyone driving the roads. The relatively concealed positions of those poles may be the reason Harmon started cutting wire there, presumably commencing June 2, his first venture.
Gov’t. Brief p. 44 n. 24. The government earlier stated in its brief that "on June 2, Harmon rented bolt cutters, went to the Facility and cut and removed some wire (probably from Poles 25, 26, and 27), which he brought home and sold. Gov’t. Brief p. 10.