Davies v. Butler

• Decision Date: 13 November 1979
• Docket Number: No. 9964,9964
• Citation: 95 Nev. 763,602 P.2d 605
• Parties: John T. DAVIES; Billie J. Davies; and Pamela J. Davies, Appellants, v. Charles BUTLER, Brent Espil; Pawl Hollis; Gary Johnson; Jerry Lazarri; Steven Rahbeck; Michael Sallee; Emery Agee Smith; Thomas J. Woolridge; The Sundowners, an unincorporated association; et al., Respondents.
• Court: Nevada Supreme Court

Page 605

602 P.2d 605

95 Nev. 763

John T. DAVIES; Billie J. Davies; and Pamela J. Davies, Appellants, v. Charles BUTLER, Brent Espil; Pawl Hollis; Gary Johnson;

Jerry Lazarri; Steven Rahbeck; Michael Sallee; Emery Agee

Smith; Thomas J. Woolridge; The Sundowners, an

unincorporated association; et al., Respondents.

No. 9964.

Supreme Court of Nevada.

Nov. 13, 1979.

Rehearing Denied Feb. 7, 1980.

Peter Chase Neumann, Reno, for appellants.

Wait, Shamberger, Georgeson & McQuaid, Reno, for respondents.

OPINION

MOWBRAY, Chief Justice:

Appellants John T. and Billie J. Davies brought this action against the Sundowners, a voluntary unincorporated club, and nine of its members to recover damages for the death of their son, John, who died during his initiation to the club. ¹ The jury found in favor of the respondents and against the Davies. The Davies have appealed from the judgment entered thereon and from the district court's order denying their motion for a judgment notwithstanding the verdict or a new trial. We reverse and remand for a new trial.

THE FACTS

In their wrongful death action, the Davies claimed that their son, John Davies, died of alcoholic poisoning resulting from the negligence, gross negligence and wanton or reckless conduct of the respondents, the Sundowners, a voluntary unincorporated association, and nine of its individual members, during the club's initiation ceremonies in October, 1975. The Davies charged that the defendants caused to be administered to their son excessive and unreasonably dangerous The club known as the Sundowners is a social "drinking club" which sponsors various activities in conjunction with extra-curricular events at the University of Nevada, Reno. The club's treasury is funded by these activities, most of which are held in connection with its initiation ceremonies.

amounts of alcohol, and that they subjected him to physical and mental abuse which resulted in his death. The defendants, respondents herein, denied wrongful conduct on their part. They claimed as affirmative defenses that John's negligence, gross negligence and recklessness contributed to his death, and that he had assumed the risk of what occurred.

There was a general agreement among the witnesses at the trial as to the chronology of events preceding Davies' death. On Thursday morning, October 9, 1975, Davies and four others were informed of their selection as initiates. From that time until Saturday night, initiates were directed to participate in morning, afternoon and evening activities, all of which were focused on their ability to consume alcoholic beverages. By Saturday evening, one of Davies' fellow initiates described himself as physically and mentally "exhausted".

On Saturday evening, October 11, 1975, the initiates were instructed to report to the Little Waldorf Saloon in Reno. At midnight, on a given signal by the club president, respondent Lazarri, the initiates were taken outside to a parking lot and lined against a wall. There the "final ceremony" commenced. The five initiates, including Davies, were given and admonished to drink large quantities of alcohol, including 190 proof "Everclear", within a 20 to 30 minute period. After they had consumed the liquor, the initiates were instructed to climb into the open bed of a pickup truck. The three active members of the club who were accompanying the initiates testified that they made two brief stops, then drove some 40 to 50 miles from Reno to a point near Pyramid Lake. There it was discovered that Davies had ceased breathing. The respondents who were present and Davies' fellow initiates testified that they attempted mouth to mouth resuscitation but without success. They then sped back to Reno. Enroute they ran out of gas. An ambulance was called, and Davies eventually was taken to the nearest hospital, where he was pronounced dead. A second initiate was also admitted and treated for alcoholic poisoning at the hospital when it was discovered that he had also become unconscious. He was, however, successfully revived with the assistance of an artificial respirator.

The club's president during the relevant period, respondent Lazarri, testified at trial that all members of the club, including each of the nine named respondents, had an equal voice in its governance, including disposition of treasury funds, and that they each benefitted from its fund-raising activities. According to Lazarri's recollection, each of the nine named respondents was present at the meeting when the initiation ceremonies of October, 1975, were planned.

Each respondent also testified that he either was at the planning meeting or knew of the initiation, including the plan to have initiates drink on the final evening and then be transported to the desert, but did not voice an objection. Each of the named respondents admitted being present at some point in that part of the initiation known as the "final ceremony" which preceded Davies' death. With the exception of respondent Hollis, who arrived later to participate in transporting Davies and the other initiates to the desert, all were present during the time that liquor was administered to Davies during the final ceremony and either observed or actively participated in the event.

Several respondents mentioned that the possibility of danger had been discussed among the members of the club, because an initiate the previous year had been taken to the hospital to have his stomach pumped.

Testimony of witnesses regarding the treatment and condition of Davies during the "final ceremony" varied. Davies' sister and two of her friends, who observed the event from a car parked across the street, testified that they saw Davies struck in the stomach and on the head by either respondent Three other observers, unconnected with the decedent or the respondents, testified that they saw Davies fall to the ground, where he was kicked and screamed at, and that they then saw him picked up and held against the wall, while a bottle was forced into his mouth. Two of these witnesses testified that Davies definitely appeared unable to stand on his own. ²

Sallee or respondent Johnson. Two of these witnesses testified that they heard the decedent shout out "Stop" in protest.

The respondents, however, generally denied that Davies or any other initiate had been struck or kicked, though they admitted that the initiates had been shoved or held up, and verbally hazed, while bottles of liquor were held to their mouths. Some respondents testified that Davies had been involved in a "scuffle" with respondents The jury, by a six to three vote, returned a general verdict in favor of all defendants. The court subsequently denied plaintiffs' motions for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Appellants contend that reversal and a new trial are mandated by prejudicial errors in the instructions to the jury, the form of the jury verdicts, and certain evidentiary rulings made by the court which we turn to consider.

Johnson and Sallee while trying to retrieve his hat. Several respondents testified that at the end of the ceremony Davies walked unaided to the waiting truck. Several also testified that they had no way of determining how much alcohol an initiate was actually consuming. Respondent Rahbeck testified that he had previously told the decedent "exactly" what had been involved in his own initiation, including how to "fake" drinking when liquor was poured into his mouth.

THE INSTRUCTIONS

1. The Comparative Negligence Statute and Willful or Wanton Conduct

The jury was instructed that "(c)ontributory negligence if any, on the part of the decedent does not reduce any recovery by the plaintiffs John T. Davies or Billie J. Davies against a defendant for an injury caused by misconduct of a defendant if you find that the defendant Intended to inflict harm upon the decedent." (Emphasis added.) Appellants claim this instruction constituted reversible error and that the trial court should instead have given the following proposed instruction:

Contributory or comparative negligence of the decedent is not a bar to recovery for any injury or damage caused by the wilful or wanton conduct of a defendant.

Wilful or wanton misconduct is intentional wrongful conduct, done Either with knowledge that serious injury to another will probably result, Or with a wanton or reckless disregard of the possible results. (Emphasis added.)

It has long been the rule in this jurisdiction that contributory negligence is not a bar to recovery for injury or damage caused by the willful or wanton misconduct of a defendant. Rocky Mt. Produce v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962); Crosman v. Southern Pac. Co., 44 Nev. 286, 194 P. 839 (1921). Respondents contend that with the passage of the comparative negligence statute, NRS 41.141, ³ the legislature intended that henceforth the willful or wanton misconduct of a defendant should simply be compared with the contributory negligence Nevada's applicable comparative negligence statute, 41.141(1), provided that "(i)n any action to recover damages for injury to persons or property in which contributory negligence may be asserted as a defense, the contributory negligence of the plaintiff shall not bar a recovery if the negligence of the person seeking recovery was not greater than the negligence Or gross negligence of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person seeking recovery." (Emphasis added.)

of a plaintiff. Appellants, on the other hand, contend that, since the statute does not mention willful or wanton misconduct, there is no basis for concluding that the legislature intended to change the previous rule. We agree with the appellants that, read in light of our previous decisions carefully delineating the concepts of willful and wanton misconduct, the...