## Facts

- John Davies died during an October 1975 initiation into the Sundowners, an unincorporated social drinking club associated with University of Nevada, Reno activities.
- John’s parents sued the club and individual members for wrongful death, alleging negligence, gross negligence, and wanton or reckless conduct during initiation ceremonies.
- The complaint alleged defendants administered excessive and unreasonably dangerous amounts of alcohol and subjected John to physical and mental abuse, causing fatal alcoholic poisoning.
- The initiation reportedly involved multi-day activities focused on alcohol consumption, culminating at a Reno saloon where initiates were required to drink large amounts of high-proof alcohol; evidence indicated John protested and was nonetheless forced to continue.
- Defendants denied wrongdoing and asserted affirmative defenses, including that John’s own negligence or recklessness contributed to his death and that he assumed the risk by participating.

## Issues

1. Whether it was error to instruct that a person may, “by voluntarily participating in an activity,” consent to conduct that would otherwise be a battery, without limiting consent to its lawful and reasonable scope in the context of lethal hazing.
2. Whether a participant’s apparent consent or assumption of risk in a dangerous initiation can bar recovery when defendants allegedly inflicted excessive, unreasonably dangerous, or reckless conduct leading to death.
3. Whether the jury instructions properly distinguished consent to battery from assumption of risk and comparative fault principles.

## Decision

- The Nevada Supreme Court reversed the defense judgment and remanded for a new trial.
- The court held that the consent instruction was erroneous and prejudicial because it could be understood as blanket consent arising from mere participation.
- The instruction likely confused the jury by allowing it to treat participation as negating liability even if the conduct exceeded any reasonable scope of consent or occurred despite protest.

## Legal Principles

- Consent to intentional torts is limited to the scope of what the person actually and reasonably agreed to; voluntary participation does not automatically constitute consent to all harmful acts that follow.
- In hazing-type settings, participation may evidence willingness to encounter certain risks, but it does not amount to consent to markedly excessive, life-threatening, or reckless conduct.
- Assumption of risk and comparative negligence concerns do not collapse into consent to battery; instructions must keep these doctrines distinct to avoid improperly expanding defenses and negating liability.

## Conclusion

Because the jury was instructed that voluntary participation could itself constitute consent to what would otherwise be a battery—without adequate limitation—the verdict for defendants could have rested on a mistaken view that participation barred liability even for extreme, dangerous, or forced conduct; a new trial was required with corrected instructions.


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