                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           APR 13 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
NATHANIEL D. DEBOLES; MARY                       No. 14-15651
DEBOLES,
                                                 D.C. No. 2:11-cv-00276-JCM-
              Plaintiffs - Appellants,           CWH

 v.
                                                 MEMORANDUM*
NATIONAL RAILROAD PASSENGER
CORPORATION, DBA Amtrak;
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                            Submitted March 14, 2016**
                             San Francisco, California

Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Nathaniel Deboles appeals the district court’s decision granting summary

judgment in favor of defendant-appellee, National Railroad Passenger Corporation

(Amtrak). Deboles contends that the district court erred in finding that Amtrak

owed him a duty to refrain from willful and wanton conduct rather than a duty of

ordinary care. In the alternative, Deboles asserts that summary judgment was

improper because he produced evidence showing that Amtrak’s conduct was

willful and wanton.



      Amtrak only owed Deboles a duty to refrain from willful and wanton

conduct, because Deboles was an undiscovered trespasser. See Ford v. Bd. of

Cnty. Comm’rs of County of Dona Ana, 879 P.2d 766, 771 (N.M. 1994)1; see also

Latimer v. City of Clovis, 495 P.2d 788, 794 (N.M. 1972) (“[A] defendant owes no

duty to an undiscovered trespasser except to refrain from wilfully or wantonly

injuring the trespasser . . . .”). Amtrak’s engineers had no reason to believe that

Deboles would fail to appreciate the risk of harm in standing near railroad tracks.

Indeed, Deboles expressly acknowledged that he was “aware of the dangers and




      1
     This case is governed by New Mexico law because Deboles was injured in
New Mexico.

                                          2
risks involved in standing on or near railroad tracks” and that a “moving train can

be dangerous.”



      Summary judgment in favor of Amtrak was appropriate because

Deboles failed to raise a material issue of fact that Amtrak acted in willful

and wanton disregard for his safety. See Swoger v. Rare Coin Wholesalers,

803 F.3d 1045, 1047 (9th Cir. 2015) (articulating the summary judgment

standard). Engineer Long blew the horn as soon as he saw Deboles.

Further, Deboles’ expert concluded that the engineer activated the horn 4.3

seconds (about 500 feet) prior to the train hitting Deboles. During that 4.3

seconds, the horn was constantly blowing. Cf. Western Constructors, Inc. v.

S. Pac. Co., 381 F.2d 573, 576-77 (9th Cir. 1967) (observing that an

engineer’s failure to slow a train if he observed a vehicle stalled on the

tracks a mile or one and one-half miles before the collision may constitute

wanton conduct).



      AFFIRMED.




                                        3
