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Davies v. Butler - 95 Nev. 763, 602 P.2d 605 (1979)


The Supreme Court of Nevada has consistently distinguished the concepts of ordinary or gross negligence from the concepts of willful or wanton misconduct. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injury.


Appellant parents brought a wrongful death action against the club and its members after their son died of alcoholic poisoning while participating in an initiation ceremony. The jury returned a verdict in favor of the club. The court on appeal reversed the trial court's denial of the parents' motion for a new trial. The trial court's refusal to give an instruction that contributory or comparative negligence was not a bar to recovery for injury caused by willful or wanton conduct was reversible error.


Did the evidence in the instant case support a jury instruction regarding the willful or wanton misconduct of the respondents?




The jury could conclude that the intent of respondents was to administer dangerous quantities of alcohol to Davies within a short period of time. 190 proof alcohol was deliberately chosen to be administered, as it had been on previous occasions, and respondents were fully aware of its nature.Further, they were aware that retention of large amounts of alcohol in the system can be highly dangerous, as an initiate had had to be hospitalized the year before. Despite respondents' protestation that they assumed decedent would not swallow most of the alcohol administered to him, they admitted having no way to determine whether that was so, while continuing to put bottles of liquor to his lips and screaming at him to drink it. Other courts have had no difficulty finding willful, wanton, or reckless misconduct in the furnishing of alcohol in sufficient quantities to cause death, even under less aggravated circumstances. 

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