I respectfully disagree with this court’s holding that the negligent siting theory of plaintiff’s case should be submitted to the trier of fact.
Whether a duty of care is owed in any particular instance is a question of law and “is the court’s ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ ” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36].) There are a number of such considerations; “the major ones are the foreseeability of harm to 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.” (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) Thus, foreseeability is but one of many considerations in weighing the question of whether a duty should be found to exist.
“When ... the existence of a duty rests on the reasonable foreseeability of injury to the plaintiff, it may become primarily a question for the jury unless reasonable minds cannot differ. Necessarily involved in submitting the case to the jury, however, is a preliminary determination that, granted a foreseeable risk, a duty arises. On the other hand, there are many situations involving foreseeable risks where there is no duty.” (Richards v. Stanley (1954) 43 *61Cal.2d 60, 66 [271 P.2d 23].) Foreseeability does not establish duty; it merely defines its limits.
As the majority points out, some courts in other jurisdictions have reached the majority’s result on similar facts, though sometimes with a strong dissent, as in the cited Noon v. Knavel (1975) 234 Pa.Super. 198 [339 A.2d 545]. However, “[determinations of the duty issue as a matter of law adversely to the plaintiff are particularly common in situations similar to that in the present case, in which the defendant’s responsibility for the activities of third persons is involved.” (Richards v. Stanley, supra, 43 Cal.2d at p. 67.) And an equal number of courts in other jurisdictions have found against liability (see, e.g., Eckerd-Walton, Inc. v. Adams (1972) 126 Ga.App. 210 [190 S.E.2d 490]; Feldman v. Whipkey’s Drug Shop (1970) 121 Ga.App. 580 [174 S.E.2d 474].)
This court recognized in Richards that foreseeable risks are inherent in all motoring activities. However, as also pointed out in Richards, “The problem is not answered by pointing out that there is a foreseeable risk of negligent driving on the part of [a third person]. There is a foreseeable risk of negligent driving whenever anyone drives . . . .” (Richards v. Stanley, supra, 43 Cal.2d at p. 65.)
Risk of harm from third persons is similarly inherent and foreseeable in pedestrian activities in proximity to vehicular traffic. By themselves, however, those risks are not deemed unreasonable and accordingly, without more, as a matter of law no one should be said to be under a duty of care to protect others from them, particularly where, as here, there is no reason to believe that the party sought to be charged was in a superior position to foresee the risk of harm.1
The location of the telephone booth here, 15 feet from the curb, beside a straight and level roadway, and adjacent to a building, provided, if anything, more protection from the risk of curb-jumping automobiles than the adjacent sidewalk itself. To hold that defendants could be found liable for locating the booth where they did is tantamount to holding that one may be found negligent whenever he conducts everyday activities on or adjacent to the public sidewalk. It will go far toward making all roadside businesses insurers of safety from wayward travelers.
*62There is no suggestion of anything defendants might reasonably have done differently with respect to siting except simply not to maintain a telephone booth in the vicinity at all. Public telephones have, in fact, long been maintained adjacent to streets and highways for the convenience of the public, despite the obvious but remote risks. But “virtually every act involves some conceivable danger. Liability is imposed only if the risk of harm resulting from the act is deemed unreasonable—i.e., if the gravity and likelihood of the danger outweigh the utility of the conduct involved.” (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 47.) Balancing the gravity and likelihood of danger against the usefulness of conveniently located public telephones, and applying each of the other “considerations” enumerated in Rowland, supra, 69 Cal.2d 108, I would opt for encouraging their continued maintenance adjacent to streets and highways, and would hold that on the present facts there arose no duty which could impose liability based on location of the booth.
As to defendant Western Electric Company, Inc., the only evidence on the siting issue was to the effect that such defendant neither had nor exercised any right or duty in selecting the location of the subject telephone booth. I would also affirm as to Western Electric on that issue for that reason.
It does not follow, however, that defendants might not be found liable for injury resulting from defective maintenance. The sticky door, if it existed, increased plaintiff’s danger by frustrating effective use of his own self-protective faculties. Needlessly to increase the usual risks could be found negligent by the jury. The risk of a sidewalk-jumping car is a risk a pedestrian might seek to avoid by getting out of the way. Such an occurrence could be deemed not to supersede but to concur with negligently impeding plaintiff’s freedom to take protective action. The judgment is properly reversed on that question.
That plaintiff’s injuries were not proximately the result of any failure of a duty of care in siting the telephone booth, however, should be held to be “without substantial controversy” (Code Civ. Proc., § 437c, subd. (f)), and the trial court’s ruling affirmed to that extent.
*63Appendix
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The fact that the telephone booth was damaged some years previously cannot be said to have put defendants on any special notice of foreseeable harm from a drunken driver veering off a nearby street. On the contrary, it appears that the source of the previous damage was unknown, and was thus reasonably assumed to have been a vehicle maneuvering in the parking lot where the booth was located. Steps were taken to guard against further damage from that direction.