dissenting:
I must respectfully dissent because I do not believe Horton’s minimal prospects of prevailing on remand require a second and unnecessary trial.
The majority apparently reverses this case based solely on the following allegedly erroneous jury instruction:
A minor is not held to the same standard of conduct as an adult. He is only required to exercise the degree of care which ordinarily is exercised by minors of like age, intelligence and experience under similar circumstances. It is for you to determine whether the conduct of the defendant was such as might reasonably have been expected of a minor of his age, intelligence and experience, acting under similar circumstances.
The majority opines that it was erroneous for the lower court to allow this instruction because “all licensed drivers tested and approved for vehicular operation by the [DMV] are bound to comport with the same standards of conduct.” Majority, at 829 *831(citing Summerill v. Shipley, 890 P.2d 1042, 1044 (Utah Ct. App. 1995)). I respectfully submit that the majority’s reliance on a provision in Nevada’s motor vehicle code as the applicable standard of care in this case is misplaced because this case does not charge Fritz with any driving violation.
In Summerill, plaintiff sued a sixteen-year-old boy for negligence when he caused a four-car collision as he was entering traffic on a highway. The defendant requested an instruction on a minor’s standard of care which the trial court refused to give. Summerill, 890 P.2d at 1044. The Utah Court of Appeals held that a minor operating a motor vehicle is held to the same standard of care as an adult and, therefore, affirmed the lower court’s decision. Id. However, unlike Summerill, this case does not involve the violation of any traffic or driving provision. Rather, the facts giving rise to the instant matter involved a minor faced with the uncertain dangers of an irate, drunken woman and an unknown, potentially dangerous man sitting in a nearby van. Indeed, the contested instruction never mentions driving. Instead, it requires the jury to consider Fritz’s overall conduct in determining whether Fritz was negligent when he continued driving forward while Horton yelled unintelligibly, pounded on the car, and held onto the sideview mirror.
Accordingly, I conclude that the trial court was correct in evaluating this case as possible negligence in Fritz’s judgment, rather than Fritz’s driving ability.
Even if the instruction were erroneous, I am unwilling to concede that the jury would have reached an entirely different result if it were given an instruction consistent with the majority opinion. I note that after a three-day trial, the jury deliberated only twenty-five minutes before returning a verdict in favor of Fritz.
The majority’s opinion apparently reverses this case because the instruction used the legal phrase “standard of conduct.” If use of this term of art was error, then pursuant to Nevada Rule of Civil Procedure 61,1 I conclude that it was harmless error. This jury instruction, erroneous or otherwise, is not “inconsistent with substantial justice,” nor does it “affect the substantial rights *832of the parties.” NRCP 61. Therefore, I conclude that if any error occurred, it was harmless and does not require reversal.2
Accordingly, I write this dissent to express my belief that the allegedly erroneous jury instruction was not given in error. Additionally, even if it was incorrect, such an inconsequential error should not require reversal.
NRCP 61 provides:
[N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for . . . setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Indeed, even the majority agrees that Horton is not credible. Majority, at 829 n.4. Therefore, I am puzzled as to why the majority insists on remanding this case to be relitigated when the only difference between the first and second trial will be to delete this very harmless jury instruction.