dissenting:
I respectfully dissent from the opinion filed by the majority.
I do not believe the trial court erred when it instructed the jury that “[cjontributory 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” instead of giving the instruction proposed by appellants.1 Although the proposed instruction is semantically more desirable, both convey the message that the plaintiffs’ recovery should not be reduced if the injury to the decedent resulted from the intentional wrongful conduct of the defendants.
*779Furthermore, I do not agree that the trial court erred in giving the instruction that “[i]ntoxication is no excuse for failure to act as a reasonably prudent person would act. A person who is intoxicated or under the influence of intoxicating liquor is held to the same standard of care as a sober person”. It correctly and fairly states the law. If appellants believed it to be overbroad in its application to the facts of this case, a countervailing instruction should have been offered.
Although the giving of the instruction that “[a] person may expressly or by voluntarily participating in an activity consent to an act which would otherwise be a battery” might be error in the context of this case, the giving of that instruction was harmless. NRCP 61.2
I concur with the remainder of the majority opinion which rejects the other assignments of error. The appellants received a fair and thorough trial upon their cause of action and the jury verdict should not be set aside upon narrow technical grounds which arguably can be decided either way. I would affirm.
Gunderson, J., concurs.“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.”
NRCP 61:
“No error in either the admission or the exclusion of evidence and no 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 granting a new trial or for setting aside a verdier 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.”