Davies v. Butler

602 P.2d 605 (1979)

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Nature of the Case

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Facts

Ps claimed that their son, John, died of alcoholic poisoning resulting from the negligence, gross negligence and wanton or reckless conduct of Ds, the Sundowners, a voluntary unincorporated association, and nine of its members, during the club's initiation ceremonies in October 1975. The Sundowners is a social 'drinking club' which sponsors various activities in conjunction with extra-curricular events at the University of Nevada, Reno. 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.' The initiates were instructed to report to the Little Waldorf Saloon in Reno. They were taken outside to a parking lot and lined against a wall. The 'final ceremony' commenced. The five initiates, including Davies, were given and admonished to drink large quantities of alcohol, including 190 proof 'Ever-clear', within a 20 to 30 minute period. 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. It was discovered that Davies had ceased breathing. 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 revived with the assistance of an artificial respirator. 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. Two of these witnesses testified that they heard the decedent shout out 'Stop' in protest. Three other observers, unconnected with the parties, 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. The court instructed the jury that “a person may expressly or by voluntarily participating in an activity consent to an act which would otherwise be a battery.” The jury, by a six to three vote, returned a general verdict in favor of Ds. The court denied Ps' motions for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Ps appealed.