                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


             SARAH DEL SERONDE, et al., Plaintiffs/Appellants,

                                         v.

         BNSF RAILWAY COMPANY, et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0385
                                FILED 10-26-2017


            Appeal from the Superior Court in Maricopa County
                           Nos. CV2011-010945
                                CV2011-010947
                                (Consolidated)
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

Pottroff Law Office, Manhattan, KS
By Robert Pottroff
Co-Counsel for Plaintiffs/Appellants

Schneider & Onofry PC, Phoenix
By Luane Rose
Co-Counsel for Plaintiffs/Appellants

Thorpe Shwer PC, Phoenix
By William L. Thorpe, Bradley Shwer, Adam T. Reich
Counsel for Defendants/Appellees
                          SERONDE et al. v. BNSF
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie joined.


C A M P B E L L, Judge:

¶1             The driver and members of the deceased passenger’s family
(collectively, “the Serondes”) sued BNSF Railway Company (“BNSF”),
alleging its negligence caused a car-train collision resulting in their
damages. The superior court granted summary judgment for BNSF, ruling
as a matter of law it did not breach the standard of care it owed to the
vehicle occupants. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Tsinijinni Jean Seronde (“Jean”) was driving on I-40 with his
mother, Ella Seronde. Attempting to bypass a traffic jam on the interstate,
Jean pulled off and traveled approximately 10 miles south, eventually
leaving the paved road and continuing down a gravel road. Jean was
following several other vehicles also attempting to bypass the interstate
gridlock. After driving over a cattle guard, Jean encountered a railroad
crossing marked with a STOP sign and crossbuck sign (“the Crossing”). He
stopped and looked in both directions before proceeding through the
Crossing.

¶3            Immediately after traversing the railroad tracks, Jean turned
left following the vehicle in front of him and proceeded along a railroad
right-of-way running parallel to the tracks. The group reached an
impassable wash approximately one mile east of the Crossing and the
vehicles turned around and drove back the way they had come.

¶4             As Jean led the line of cars back toward the Crossing, a BNSF
train approached from behind. The train crew saw the cars approximately
one mile before the Crossing and began sounding the train’s horn. Jean
testified that he did not hear the horn and could only see the dust trail
emanating from the other vehicles in his rear-view mirror. When Jean
approached the Crossing, he slowed his vehicle, but failed to stop and
ensure the tracks were clear before entering. As Jean drove onto the tracks,




                                     2
                         SERONDE et al. v. BNSF
                          Decision of the Court

the train collided with his car. Jean suffered injuries and his mother Ella
was killed in the collision.

¶5             The superior court granted summary judgment for BNSF,
ruling federal law preempted the Serondes’ allegations that the train failed
to slow as it approached the Crossing.1 This court affirmed that ruling, but
reversed the dismissal of the Serondes’ negligence claim insofar as it alleged
BNSF had provided inadequate markings and warning devices at the
Crossing because the superior court had not addressed that claim. See
Seronde v. BNSF Ry. Co., 1 CA-CV 14-0166, 2015 WL 1516534, at *4, ¶ 16
(Ariz. App. April 2, 2015) (mem. decision).

¶6              On remand, BNSF again moved for summary judgment,
asserting that because Jean and Ella were trespassers at the time of the
collision, its only duty was to avoid willfully and wantonly injuring them
and it had satisfied that duty. The Serondes maintained Jean and Ella were
not trespassers, but either licensees or invitees to whom BNSF owed a duty
of reasonable care. The superior court granted summary judgment for
BNSF, ruling as a matter of law that Jean and Ella were trespassers and
BNSF had not breached the duty of care it owed them. The Serondes timely
appealed.

¶7           The Serondes argue the superior court erred in ruling BNSF
did not owe a duty of reasonable care to Jean and Ella. They contend, at
minimum, that a material question of fact exists regarding the duty BNSF
owed to Jean and Ella.

                               DISCUSSION

¶8            This court reviews entry of summary judgment de novo,
viewing the facts in the light most favorable to the party against whom the
court entered judgment. Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71, ¶ 11
(App. 2011). “We will affirm summary judgment only if there is no genuine
issue as to any material fact and the party seeking judgment is entitled to
judgment as a matter of law.” Id.

¶9            To establish BNSF’s negligence, the Serondes were required
to prove (1) the existence of a duty recognized by law requiring BNSF to
conform to a certain standard of care, (2) BNSF’s breach of that standard,
(3) a causal connection between BNSF’s conduct and the Serondes’ injury,
and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007).

       1Ella’s children brought a wrongful-death claim against BNSF. Jean
sued separately for personal injuries and the cases were consolidated.


                                      3
                          SERONDE et al. v. BNSF
                           Decision of the Court

Because the superior court ruled, as a matter of law, on the elements of duty
and breach, we confine our analysis to those issues.

I.     Duty

¶10           Whether a defendant owes a duty of care to the plaintiff is a
legal question the court decides based on the parties’ relationship or other
statutory and public policy considerations. Id. at 145-46, ¶¶ 19-25. Under
Arizona common law, a landowner’s duty to persons coming onto his or
her premises is based on the status of the visitor. In the case of a trespasser,
a person “who enters or remains upon land in the possession of another
without a privilege to do so,” see Restatement (Second) of Torts
(“Restatement”) § 329 (1965), the landowner’s duty is only to refrain from
willfully or wantonly disregarding the person’s safety. Webster v.
Culbertson, 158 Ariz. 159, 161 (1988) (citation omitted). In contrast, in the
case of an invitee—a person who enters the land because the landowner
held the premises out as open to the public, see Restatement § 332—the
landowner has an affirmative duty to use reasonable care to make the
premises safe for the invitee’s use. Markowitz v. Arizona Parks Bd., 146 Ariz.
352, 355 (1985).2

¶11           The superior court ruled that Jean and Ella were trespassers
as a matter of law. It also ruled that BNSF, as the landowner, owed them a
duty to avoid willfully or wantonly injuring them and, as a matter of law,
did not breach its duty. See Beesley v. Union Pac. R.R. Co., 430 F. Supp. 2d
968, 970 (D. Ariz. 2006) (“a landowner owes no duty toward a trespasser
except not to willfully or wantonly injure him after discovering his peril”).
Although the Serondes admitted BNSF owns the land on which the
collision occurred, they argue that an exception to the trespasser rule
applies because BNSF either (1) knew that trespassers regularly used the
Crossing and acquiesced to that behavior, or (2) invited and induced Jean
and Ella to use the Crossing. As a result, they argue Jean and Ella were no



       2  A third category, a licensee, is “a person who is privileged to enter
or remain on land only by virtue of the possessor’s consent.” Hicks v.
Superstition Mtn. Post No. 9399, Veterans of Foreign Wars of the U.S., 123 Ariz.
518, 521 (1979) (quoting Restatement § 330). The duty a landowner owes to
a licensee is to refrain from willfully or wantonly causing harm or
knowingly permitting the person to contact a hidden peril. Mull v. Roosevelt
Irr. Dist., 77 Ariz. 344, 347 (1954). The Serondes do not assert on appeal that
Jean and Ella were licensees.



                                       4
                         SERONDE et al. v. BNSF
                          Decision of the Court

longer trespassers but invitees to whom BNSF owed a duty of reasonable
care.

      A.     Knowledge of Trespassers and Acquiescence

¶12            Arizona follows Restatement § 334, which states that when a
landowner knows or should know that trespassers “constantly intrude
upon a limited area” of the landowner’s property, he or she owes a duty to
exercise reasonable care for the trespasser’s safety. Id.; Delgado v. S. Pac.
Transp. Co., 763 F. Supp. 1509, 1512 (D. Ariz. 1991). The Serondes contend
BNSF had knowledge that trespassers constantly traversed the Crossing
and therefore had a duty to use reasonable care when conducting its
activities on the land. The evidence, however, does not establish that BNSF
knew that trespassers “constantly intrud[ed]” on the Crossing.

¶13           BNSF constructed the Crossing in 1983 to permit restricted
access to the National Park Service for access to a road located immediately
south of the Crossing that lies within the Petrified National Forest. This
private access road is gated and not open to the public. BNSF also permits
a neighboring landowner to use the Crossing to access her private, gated
driveway south of the Crossing.3

¶14           Despite this evidence that the remote Crossing served only as
access to the private roads located to the south, the Serondes contend there
is evidence that the public regularly used the Crossing with BNSF’s
knowledge and acquiescence. First, they cite a United States Department
of Transportation Inventory Information form in which BNSF estimated


      3   The United States Department of Transportation identifies the
Crossing as private, which is consistent with BNSF’s internal classification
of the Crossing and applicable law. See Arizona Administrative Code R14-
5-101(14) & (15) (defining a private grade crossing as “any crossing where
a legal agreement exists between a private property owner and a railroad
company for the exclusive use of the landowner and the landowner’s
invitee” and a public grade crossing as “any crossing used by the general
public, for which a legal agreement between a private property owner and
a railroad company does not exist”); 49 C.F.R. § 222.9 (defining a public
highway-rail grade crossing as a “location where a public highway, road,
or street, including associated sidewalks or pathways, crosses one or more
railroad tracks at grade. If a public authority maintains the roadway on both
sides of the crossing, the crossing is considered a public crossing.”). The
Serondes asserted in the superior court that the Crossing was a public
crossing, but do not raise that argument on appeal.


                                     5
                          SERONDE et al. v. BNSF
                           Decision of the Court

that 55 vehicles per day used the Crossing. However, because the inventory
form does separate the vehicles into groups of trespassers as opposed to
licensees or invitees, it is not probative of whether the public constantly
intruded on the Crossing. See Ariz. R. Evid. 401(a) (defining relevant
evidence, in part, as evidence that “has any tendency to make a fact more
or less probable than it would be without the evidence”). Moreover,
because BNSF identified the Crossing as private on its inventory form, this
case is distinguishable from the one on which the Serondes rely, Ross v.
Burlington Northern and Santa Fe Ry. Co., 63 F. Supp. 3d 1330 (W. D. Okla.
2014). In that case, the plaintiff offered evidence that the defendant railroad
considered the crossing to be public and knew that the public used it,
supporting an inference that the railroad had included public use in the
“vehicles per day” estimate contained on its Department of Transportation
inventory form. Id.

¶15            The Serondes next argue that BNSF’s engineer, Guy Nunley,
agreed it was “not unusual” to see motorists in non-BNSF vehicles using
the Crossing. A review of Nunley’s testimony, however, shows he testified
that most of the vehicles he saw near the Crossing belonged to BNSF and
he could not say whether the non-BNSF vehicles were authorized to be on
the right-of-way or were, in fact, trespassers. Nunley’s testimony therefore
does not raise a material question of fact regarding whether the public
“constantly and persistently” intruded on the Crossing. See Orme Sch. v.
Reeves, 166 Ariz. 301, 309 (1990) (noting evidence that may provide a
“scintilla” or create the “slightest doubt” is not sufficient to withstand a
motion for summary judgment); Shaw v. Petersen, 169 Ariz. 559, 560-61
(App. 1991) (a motion for summary judgment should not be denied simply
upon speculation that some doubt, scintilla of evidence, or dispute over
irrelevant or immaterial facts “might blossom into a real controversy in the
midst of trial” (quoting Orme Sch., 166 Ariz. at 311)).4



       4   This case is therefore distinguishable from S. Pac. Co. v. Bolen, in
which the Arizona Supreme Court reversed a verdict for the plaintiff
because the trial court improperly instructed the jury on the railroad’s duty
of care. 76 Ariz. 317, 327-28 (1953). In that case, there was evidence from
which a jury could find that the public constantly intruded on a pathway
across the tracks and the railroad should therefore have reasonably
anticipated the presence of people on the tracks. Id. at 321, 326. The court
held that the railroad’s knowledge of the likelihood of the presence of
trespassers was one of the circumstances that informed the degree of care
(i.e., the duty) the railroad owed to the plaintiffs. Id. at 327-28.


                                      6
                           SERONDE et al. v. BNSF
                            Decision of the Court

¶16            Finally, we reject the Serondes’ argument that BNSF
approved of the public’s use of the Crossing because it did not post signage
stating “no trespassing” or otherwise restricting access to authorized
persons. Absent evidence that the public persistently used the Crossing,
BNSF’s failure to post “keep out” signs could not constitute acquiescence
to trespass. See Restatement § 334 (imposing a heightened duty of care only
on a landowner who knows or should know that trespassers constantly
intrude upon his land); Delgado, 763 F. Supp. at 1513 (knowledge of
trespassers in general does not confer a duty to specific trespassers in other
areas of whom a railroad has no knowledge).

        B.    Invitation

¶17            The Serondes allege BNSF’s construction of the Crossing and
installation of warning signs was an invitation or inducement to the public
to use the Crossing.

¶18            They rely on cases, however, in which the railroad had
constructed or maintained a crossing for the benefit of either the plaintiff or
the public in general. See St. Louis-San Francisco Ry. Co. v. Ready, 15 F.2d 370
(5th Cir. 1926) (decedent “was not a trespasser or licensee, but an invitee”
because railroad established a crossing and treated it as a public crossing);
Missouri Pac. Ry. Co. v. Bridges, 74 Tex. 520, 522 (1889) (holding that when a
railroad voluntarily maintains a crossing, “knowing that it is a road in
common use by the public, it in effect invites the use of it and proclaims it
safe”); Cent. R.R. & Banking Co. v. Robertson, 95 Ga. 430 (1895) (railroad
established the crossing “to accommodate the settlement,” thereby inviting
the public to use it); Creten v. Chicago, Rock Island and Pac. R.R. Co., 184 Kan.
387, 389 (1959) (the railroad’s private crossing had been used for thirty years
by the public generally and by the plaintiff to gain access to a field he rented
on the south side of the tracks). Here, the evidence established that BNSF
constructed the Crossing for the benefit of the National Park Service and
permitted use by a neighboring landowner only. The Serondes did not offer
any evidence that BNSF constructed the Crossing for the benefit of the
motoring public or that it was regularly used by the public.

¶19           Next, the Serondes argue the signage at the Crossing invited
the public to trespass because BNSF placed the STOP sign and crossbuck
sign in the same “sign configuration” it used at public crossings.5 However,


    5The Serondes also discuss a private sign located at the entrance to a
gas facility approximately one mile from the Crossing that directs “all



                                       7
                          SERONDE et al. v. BNSF
                           Decision of the Court

the Serondes did not offer any evidence to support that claim.6 Even
assuming, however, that BNSF installed the same warning signage at both
public and private crossings, that fact alone would not constitute an
invitation for trespassers to use a private crossing. Orme Sch., 166 Ariz. at
309; Shaw, 169 Ariz. at 560-61. Necessarily, the public would have to see the
signs before they were invited or induced to use the Crossing. Unless Jean
and Ella trespassed on BNSF property, they never would have seen the
railroad crossing signs. Significantly, the Serondes did not offer any
evidence that Jean and Ella relied on the STOP and crossbuck signs as an
inducement to use the Crossing.

¶20            Nevertheless, citing Arizona Copper Co. v. Garcia, 25 Ariz. 158
(1923), the Serondes contend that when a railroad recognizes a crossing by
installing warning signs, it must use reasonable care to avoid injury to those
using the crossing. In Garcia, the plaintiff was injured at a railroad crossing
that intersected a highway. Id. at 159. Although the crossing was established
without the proper statutory permission, the evidence showed that it had
been a “thoroughfare between populous communities and frequented by
travelers” for several years before the collision. Id. The railroad, recognizing
the public use of the crossing, had installed several warning signs to alert
drivers on the highway to the crossing. Id. The Arizona Supreme Court
rejected the railroad’s argument that it owed only the limited trespasser
duty to the plaintiff because the crossing was unlawfully established. Id. at
159-60. The court ruled that in light of the railroad’s knowledge of the
“long-continued current of travel” over the crossing, its placement of the
warning signs was a recognition of the crossing and “an invitation to cross
upon such conditions as apply generally to a public crossing.” Id. at 160.
The court did not hold, as the Serondes suggest, that Arizona law presumes
that a railroad invites the public to trespass and must act with reasonable
care every time it places warning signs at a crossing.




through traffic and railroad access” toward the Crossing and an Apache
County sign identifying a “nearby” road and posting a speed limit. Because
there is no evidence that BNSF posted either of these signs, they could not
constitute an invitation from BNSF to the public to trespass at the Crossing.

       6Although the Serondes cited the report of their expert, William
Hughes, that the signage at the Crossing was the same type of signage BNSF
used at its public highway-grade crossings the superior court struck Mr.
Hughes’ report. Accordingly, there was no material dispute of fact on this
issue.


                                       8
                          SERONDE et al. v. BNSF
                           Decision of the Court

¶21            Similarly, the other cases the Serondes cite each involved
continuous and open use of the crossing by the public in addition to the
railroad’s posting of warning signs. See Cleveland, C., C. & St. L. Ry. Co. v.
Weil, 68 F.2d 48, 49-50 (7th Cir. 1933) (holding that where crossing in a
public road had been used by general public for fifty-eight years, the
evidence—including railroad’s installation of warning signs—supported
jury finding that railroad had given it over to public use and extended
invitation to cross); Schoonover v. Baltimore & O.R. Co., 69 W. Va. 560 (1911)
(reversing dismissal of negligence action because railroad had established
the crossing to allow the public to access a park and, therefore, plaintiff was
an invitee to whom it owed duty of reasonable care); Lake Erie & W.R. Co. v.
Fleming, 183 Ind. 511 (1915) (railroad constructed a crossing for vehicles and
pedestrians traveling between public street and poultry plant that was in
“constant daily use by many people, and was the only way to reach the
plant”); McGunegill v. Chesapeake & O. Ry. Co., 199 F.2d 302, 302-03 (7th Cir.
1952) (railroad’s maintenance of a crossing to provide ingress and egress
for buildings and a public swimming pool, coupled with its erection of
warning signs, impliedly invited the public to use the crossing); Ross, 63 F.
Supp. 3d at 1334 (evidence showed railroad considered the crossing to be
public and knew an average of thirty vehicles per day used it); Chesapeake
& Ohio Ry. Co. v. Pulliam, 185 Va. 908, 912-13 (1947) (evidence showed
crossing was used daily by the general public for at least forty years); Belcher
v. Norfold & W. Ry. Co., 140 W. Va. 848, 853 (1955) (evidence showed
crossing had been used by the public for eight to thirty-five years) overruled
on other grounds by Bradley v. Appalachian Power Co. v. Elk Grocery Co., 163 W.
Va. 332, 342 n.16 (1979).

¶22           In this case, there is no evidence that BNSF placed the signage
at the Crossing in response to trespassers’ constant and persistent use of the
Crossing. To the contrary, as discussed, there is no evidence that the public
regularly used the Crossing. Therefore, BNSF’s installation of the STOP and
crossbuck signs does not support an inference that it invited the public to
use the Crossing.

              1.     The Crossing’s Appearance Was Not Misleading

¶23           Relying on Restatement § 367 and several out-of-state cases,
the Serondes allege that Jean and Ella fell within another exception to the
general rule regarding trespassers. They allege this exception changed their
status from trespassers to invitees, requiring BNSF to act with reasonable
care toward them.




                                       9
                          SERONDE et al. v. BNSF
                           Decision of the Court

¶24           Section 367 provides:

       A possessor of land who so maintains a part thereof that he
       knows or should know that others will reasonably believe it to be a
       public highway is subject to liability for physical harm caused
       to them, while using such part as a highway, by his failure to
       exercise reasonable care to maintain it in a reasonably safe
       condition for travel.

(Emphasis added).

¶25           Arizona, however, does not follow the Restatement position
that a landowner’s duty changes to one of reasonable care if he “knows or
should know that others will reasonably believe” they are travelling on
public land. Rather, Arizona law requires a plaintiff to show that the
defendant permitted open use by the public of the land in question. Olsen
v. Macy, 86 Ariz. 72, 74. Interpreting § 367 in Olsen, the Arizona Supreme
Court stated:

       We find the law to be that if an owner or occupant of property
       has permitted persons generally to use or establish a way across it
       under such circumstances as to induce a belief that it is public
       in character, he owes to persons availing themselves thereof
       the duty due to those who come upon the premises by
       invitation.

Id. at 74 (emphasis added).

¶26           While plaintiff urges us to adopt this standard, we must
follow both Arizona statute and Arizona Supreme Court jurisprudence as
more fully set forth above. Again, because the Serondes did not offer any
evidence from which a reasonable jury could conclude that BNSF permitted
the public to openly use the Crossing, the undisputed facts demonstrate
that Jean and Ella were trespassers when they entered BNSF’s property.

II.    Breach

¶27           The superior court correctly ruled, as a matter of law, that
BNSF owed the plaintiffs a duty to avoid willfully and wantonly causing
them harm. See Webster, 158 Ariz. at 161 (“In the typical ‘trespasser’ case,
plaintiff may not recover unless the landowner has been guilty of some
willful or wanton disregard for the plaintiff’s safety.”); Barnhizer v. Paradise
Valley Unified Sch. Dist. No. 69, 123 Ariz. 253, 254 (1979) (“Ordinarily, the
duty of a landowner to a trespasser is to not willfully or wantonly injure


                                       10
                          SERONDE et al. v. BNSF
                           Decision of the Court

him.”); Restatement § 333 (unless an exception applies, “possessor of land
is not liable to trespassers for physical harm caused by his failure to exercise
reasonable care (a) to put the land in a condition reasonably safe for their
reception, or (b) to carry on his activities so as not to endanger them”);
Delgado, 763 F. Supp. at 1516 (concluding that because none of the
exceptions to Restatement § 333 applied, railroad owed trespasser “the
mere duty not to willfully or wantonly injure him”).

¶28            The superior court also determined, as a matter of law, that
BNSF had not breached that duty. Whether a defendant has exercised the
care required to satisfy its duty is generally a question of fact for the jury,
but a court may rule as a matter of law when “no reasonable juror could
conclude that the standard of care was breached.” Gipson, 214 Ariz. at 143,
¶ 9 n.1 ; see also Markowitz, 146 Ariz. at 357; Coburn v. City of Tucson, 143
Ariz. 50, 53-54 (1984). We agree with the superior court. The Serondes did
not offer any evidence that would allow a reasonable jury to conclude BNSF
willfully and wantonly caused Jean and Ella harm.7

¶29           Arizona courts group willful and wanton conduct with
reckless conduct as an “aggravated form of negligence.” Williams v. Thude,
188 Ariz. 257, 259 (1997) (“Gross negligence and wanton conduct have
generally been treated as one and the same.”). Wanton misconduct is
negligence that “involves the creation of an unreasonable risk of bodily
harm to another (simple negligence) together with a high degree of
probability that substantial harm will result (wantonness).” DeElena v. S.
Pac. Co., 121 Ariz. 563, 566 (1979); see also S. Pac. Transp. Co. v. Lueck, 111
Ariz. 560, 562 (1975) (“Conduct is wanton if a defendant intentionally does
or fails to do an act, knowing or having reason to know of facts which
would lead a reasonable man to realize that his conduct not only created an
unreasonable risk of harm to another but involved a high degree of
probability that such harm would result.”).

¶30           The evidence showed that the train crew began sounding the
train’s horn when they saw the cars on BNSF’s right-of-way, and applied
emergency braking procedures as soon as they observed Jean enter the

       7 The Serondes’ argument on appeal that BNSF failed to adequately
warn of, mark, or restrict access to the Crossing is premised on the notion
that BNSF owed Jean and Ella a duty of reasonable care because they were
invitees. We have rejected that premise and therefore do not consider
whether the Serondes created a material question of fact regarding whether
BNSF breached that higher standard of care.



                                      11
                         SERONDE et al. v. BNSF
                          Decision of the Court

Crossing.8 There is no dispute that Jean was aware of the tracks and the
danger they posed before he entered the Crossing at the time of the collision
because he had stopped and looked in both directions when he first crossed
the tracks only minutes earlier.

¶31             BNSF’s duty to avoid willfully and wantonly injuring Jean
and Ella did not require it to post “no trespassing” signs, fence the Crossing
to keep trespassers away, or install lights and crossing gates to prevent
trespassers from disregarding the STOP sign and inherent danger of the
train tracks and entering the Crossing without stopping. Barnhizer, 123 Ariz.
at 255 (1979) (noting a landowner’s duty to a trespasser is to avoid willfully
and wantonly injuring him, not “to prevent every possibility of harm”); cf.
Delgado, 763 F. Supp. at 1515-16 (rejecting argument that railroad’s alleged
failure to prevent trespassers from boarding its trains was a failure to carry
on its activities with reasonable regard for persons it had reason to know
were trespassing). Arizona courts have long recognized that “[a] railroad
track of itself is unquestionably a warning of danger, and it is the duty of
every person who sees such a danger signal to look and listen before going
on the track.” Canion v. S. Pac. Co., 52 Ariz. 245, 251 (1938).

¶32            Because no reasonable juror could find that BNSF breached
the applicable standard of care, the superior court correctly granted
summary judgment for BNSF. Gipson, 214 Ariz. at 143, ¶ 9 n.1; DeElena, 121
Ariz. at 569 (noting evidence of wantonness must “be more than slight and
it may not border on conjecture” in order to create a material question of
fact for the jury).

                              CONCLUSION

¶33           For the foregoing reasons, we affirm. We will award costs to




       8 Because this court determined in the Serondes’ earlier appeal that
federal law preempted their negligence claim insofar as it was based on the
train’s failure to slow as it approached the Crossing, Seronde v. BNSF Ry.
Co., 1 CA-CV 14-0166, 2015 WL 1516534, at *4, ¶ 16 (Ariz. App. April 2, 2015)
(mem. decision), their negligence claim is limited to alleged inadequate
markings and warning devices.


                                     12
                      SERONDE et al. v. BNSF
                       Decision of the Court


BNSF upon its compliance with ARCAP 21.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




                                   13
